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Cite as: [1998] IESC 48

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Egan v. Murphy [1998] IESC 48 (30th November, 1998)

THE SUPREME COURT

REF No 149/97

MURPHY J

LYNCH J

BARRON J

BETWEEN:

EGAN

AND

MURPHY & ORS

Ex TEMPORE JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 30TH DAY OF NOVEMBER 1998

1. These proceedings arise out of an assault which it is alleged occurred on the 12th day of June 1992 in Ballina, County Mayo. It is alleged that as a result of the assault the Plaintiff suffered serious injuries, loss and damage. The Plenary Summons was issued on the 16th March 1994 and the Statement of Claim delivered on the 22nd August 1994. The defence in turn was delivered on the 16th December 1995. It was preceded by a number of notices requiring further and better particulars. This in part explains the delay in delivering the defence.

2. The controversial matter which concerns this appeal was the notice of trial which was served on the 16th April 1995 for the 30th of May 1995 requiring a trial by a judge sitting in Sligo without a jury. The matter was likewise sat down for trial before a judge sitting in Sligo and accordingly sitting without a jury.

3. The matter ultimately came before the then President of the High Court on the 17th April 1997 when an application was made on behalf of the Plaintiff for an adjournment to enable a motion to be brought to have the matter transferred from Sligo to Dublin. On the hearing of

that application the President made certain observations about the delay which had occurred and indicated that he would refuse to make the order but facilitated the Plaintiff to the extent that the matter was indeed adjourned to enable a motion to be brought in Dublin on the 21st April 1997 which was ultimately heard by the President. The President gave a judgment, a note of which was made by Counsel. As Counsel on behalf of the Appellant has indicated that would more properly have been an application for liberty to set aside the Notice of Trial which had been served but in effect it was treated in the same way and the learned President refused the application. He refused the application largely for the reason that there had been a significant delay in bringing the application. The Notice of Trial was, as I have said, served in April 1995 and throughout 1996 there was considerable activity in relation to the case. There were notices for particulars but more importantly there was an application for third party discovery against the Garda Siochana and notices to produce were served, all of which would suggest that the file was alive and being considered by the Solicitors on behalf of the Plaintiff. It was not until April 1997 that the motion effectively to set aside the Notice of Trial was brought and dealt with by the President and refused by him on the basis of delay. It is from that order of the President that the appeal is brought to this Court.

4. The essence of the Plaintiffs case for the order is to be found in paragraphs 6 and 7 of the affidavit of Mr Tansey the solicitor on behalf of the Plaintiff. In those paragraphs he says as follows:-

“I say the proceedings took their normal course and on the 11th April 1995 a Notice of Trial was served by my office on the solicitors for the defendants/respondents and I beg to refer to the said notice when produced.

I say that the by said notice the matter was erroneously set down by the High Court sitting for the hearing of personal injury cases in Sligo before a judge alone.

I say and believe that it was always my intention bearing in mind the nature of the torts in question and the provisions of SI (3) (z) of the Courts Act 1988 to have the issues in the case herein tried by a judge sitting with a jury.”

5. The solicitor has therefore sworn positively and clearly that the Notice of Trial was served in error and that it had certainly been his intention that the Notice of Trial was to be served for a judge sitting with a jury and that an error had occurred. The following paragraph is then of significance because it discloses the date on which he first became aware of the error. He says in paragraph 7:-

“I say that the error did not come to my attention until some time in the month of November 1996 and as a result of which a letter was sent by my office to the solicitors for the defendants/respondents and informing them of such.”

6. In fact, as already mentioned, the application to transfer to Dublin was not formally made until April 1997 but there is no doubt that in November 1996 the solicitors on behalf of the Plaintiff were asserting that the Notice of Trial had been served in error and that this error

was brought to the attention of the Defendants in November 1996. It was not until January 1997 that a reply was received from the solicitors on behalf of the Defendants. In their letter of the 29th January 1997 the solicitors on behalf of the Defendants did draw the attention of Messrs Damien Tansey & Company to the fact that “We understand from the Central Office that this case is still appearing in the Sligo List and has not been transferred to the Jury List”.

7. There was then a further delay between January and April when the matter was mentioned to the then President of the High Court and then the actual formal application made by motion in Dublin on the 21st April 1997.

8. That there was an error by the solicitor on behalf of the Plaintiff is sworn to by the solicitor and is not and hardly could be disputed. The important fact is that the solicitor, Mr Tansey, likewise deposes that it was November 1996 before he discovered that error. Attention has been drawn to the fact that the file was being processed and processed vigorously throughout 1996 and it is indeed surprising that nobody adverted in the Plaintiffs solicitors office to the fact that the matter was set down by them for hearing in Sligo. Nonetheless that is the sworn evidence and they are the undisputed facts. It follows that if this matter is heard by a judge sitting alone it would be due to an error or slip by the solicitor on behalf of the Plaintiff and not as a result of any positive right conferred on the Defendants.

9. It is on that basis that Counsel on behalf of the Appellant has drawn to the attention of the Court one of the few reported decisions of this Court on a comparable manner that is the Gypsum Industries v. Weatherwell Ltd [1954] IR 282 and in particular the penultimate paragraph of his judgment where Chief Justice Maguire said:-

“Apart from this consideration if one were to apply the principles laid down in Collins v. Vestry of Paddington it would be harsh and I think unreasonable when a slip of this kind is made to decline relief where one is satisfied, as is the case here, that it was a slip or oversight and that the solicitors for the defendants intended from the first to ask for a jury. I am of opinion that the order of the High Court should be set aside and the time within which the defence may signify their desire to have this action tried with a jury should be extended.”

10. I believe that this Court should apply the principle enunciated in the Gypsum Industries Case and recognise that unfortunately there was a serious error made by the solicitors on behalf of the Plaintiff; accept that it was his intention to seek a trial by jury; and that due to an oversight that was not done and that due to a further oversight the error was not discovered until nearly eighteen months later. Accepting those facts, it is my view that the Plaintiff should not be deprived of the rights conferred on him by the Courts Act 1924 and preserved by the Courts Act 1988 due to this unfortunate error. The fact that the error may have certain consequences in the matter of costs was rightly recognised by Counsel on behalf of the Appellant.

11. I would allow the appeal and extend the time accordingly.