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Cite as: [1999] IESC 69

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Collins v. Bus Atha Cliath [1999] IESC 69 (22nd October, 1999)

THE SUPREME COURT

297/96

DENHAM J

MURPHY J

LYNCH J

BETWEEN:

MARGARET COLLINS

PLAINTIFF/APPELLANT

AND

BUS ATHA CLIATH/ DUBLIN BUS AND BUS EIREANN

DEFENDANT/RESPONDENT

Judgment of Murphy J delivered the 22nd Day of October 1999 [Nem. Diss.]

1. This is an appeal from the Order of Mr Justice Flood made on the 21st day of October, I 996, whereby it was ordered that:-

“This action be dismissed for want of prosecution.”

2. The matter has its origins in an accident which happened or is alleged to have happened in the month of May 1985. The Defendants were notified of the potential claim in June 1985 but proceedings were not instituted until the plenary summons herein was issued on the 6th May 1988.

3. The delay, and that there was, in instituting the proceedings was not fatal to the Plaintiffs claim. On the other hand it was pointed out by Henchy J in Sheehan v. Amond [1982] IR

235 that where there is delay in instituting proceedings the subsequent steps should be taken with expedition. Henchy J summarised the position (at page 237) in the following terms:-

“As the plaintiff’s next friend, the plaintiff’s father got a solicitor to issue a plenary summons in the High Court against the defendant in February, 1969, which was just within the three year limitation period. No explanation has been given for that delay. It is a statutorily permitted delay but (as has been pointed out in some of the cases), when the period of limitation for instituting proceedings has been all but allowed to expire, a plaintiffs solicitor should thereafter be astute to ensure that he is not dilatory in regard to any of the further procedural steps that are necessary to avoid the taint of prejudicial delay.”

4. That is an observation which has been cited and applied in numerous subsequent cases.

5. On the 27th March 1990 the Plaintiff served notice of intention to proceed within one month from the date thereof. That intention was not implemented. A further notice of intention to proceed dated the 28th March 1993 was served but again no steps were taken in pursuance thereof. A third notice of intention to proceed is dated the 4th March 1996 and subsequent to that a Statement of Claim was delivered on the 19th April 1996. The essence of the Plaintiffs claim is to be found in paragraph 4 of that pleading which is in the following terms:-

“On or about the 30th day of May 1985 the Plaintiff was a lawful passenger travelling on Number 70 bus in the Merchants Quay area in the vicinity of Blackhall

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Place, Dublin 7, when owing to the negligence and breach of duty of the Defendants their servants or agents and each of them and either of them the Plaintiff was violently thrown to the ground.”

6. The Defendants served a notice for particulars on the 3rd May, 1996, to which a reply was made on the 20th June 1996.

7. The notice of motion dated the 31st July 1996 and returned for hearing by Mr Justice Flood n the 21st October 1996 the Defendants sought:-

“An order dismissing the Plaintiff’s claim herein on the grounds that the Defendants are prejudiced in defending this claim by reason of an inexcusable delay on the part of the Plaintiff in prosecuting her claim herein.”

8. The motion to the High Court was grounded on the affidavit of Colm Costello solicitor on behalf of the Defendants.

9. Mr Costello set out the history of the matter and contended that the Plaintiff’s delay was inordinate and inexcusable. He claimed further that the Defendants were prejudiced by the delay for a variety of reasons. He asserted in his affidavit that in 1992 the Claims Department had closed its file on the case. He asserted that investigation of the Plaintiffs claim had ceased. He stated that his clients had instructed him that there would be a full defence to the action on the grounds that a cyclist had cycled across the path of the bus in

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question and in doing so broke the traffic lights. This had created an emergency. He specifically deposed that the driver of the bus in question, a Mr Stafford had died. It was expressly stated that Mr Stafford had died in 1988. Whether this death occurred before or matter the institution of the proceedings has not been made clear. However, Mr Costello went on to explain the difficulties which had been encountered in dealing with the claim after the Plaintiff had sought to reactivate it. One potential witness is apparently unable to assist the Defendants and it is claimed - and obviously must be the case - that any medical examination of the Plaintiff at this stage would be of little value in assessing the injuries sustained in the alleged accident.

10. Mr Justice Flood made the order sought but did not allow the costs of the motion or action and there is no cross-appeal before this Court in relation to such costs.

11. The matter was heard before Mr Justice Flood on the affidavit of Mr Costello and the exhibits contained therein. No affidavit was sworn by or on behalf of the Plaintiff. The circumstances bear a striking similarity to the facts in Sheehan .v. Amond , to which I have already referred, and in respect of which Henchy J commented (at page 239) as follows:-

“When the motion came before the High Court on the 2nd November, 1981, the facts which I have set out spoke for themselves. They called out for an explanation as to why the plaintiff’s action was treated with what seems to have been casualness to point of indifference, and for a reason why the defendant should be called on to make his defence long after any reasonable system of law would expect a defendant to be in a position to marshal his defence to a serious claim against him in respect of a long-past road accident. But once again the case is conspicuous for a

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resounding silence. Not one word of evidence was tendered in the High Court by, or on behalf of the plaintiffs solicitor to explain, justify or even make understandable the manner in which he had allowed the plaintiffs case to acquire the appearance of extinction, or to suggest why the defendant should be expected to cope with a claim which had become enmeshed in the cobwebs of history. Nevertheless, although the evidence of inactivity and of seeming negligence was all on one side (i.e., that of the plaintiffs solicitor), the High Court judge allowed the action to proceed provided notice of trial was served within one week.

Understandably, the defendant has appealed against that decision. In effect, his counsel submits that it would be contrary to the fundamentals of fair court procedures if after what would be at least 17 years after the accident in question, the defendant were to be expected to mount an effective defence against a claim which the plaintiff’s solicitor has inexplicably allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation.”

12. The delay of eight years in delivering the Statement of Claim, particularly having regard to the tardiness in instituting the proceedings, must be designated as “inordinate “. No effort has been made to excuse that delay and Counsel for the Appellant candidly admitted that it could not be excused.

13. Counsel on behalf of the Appellant argued that the learned trial Judge was not entitled to dismiss the Plaintiffs claim for want of prosecution. He contended that in accordance with

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the Order 122 Rule 11 of the Rules of the Superior Courts an action cannot be dismissed for ant of prosecution where proceedings have been taken in the two years prior to the application. Counsel is correct in that submission. However, I am afraid that it relates more to the form of the order as drawn up than to the substance of the ruling made and the judgment given by the learned Judge of the High Court. The application before him was not an application to dismiss for want of prosecution. It was a similar but distinct application, in the terms already quoted, to dismiss for reasons of delay - delay which was both inordinate and inexcusable and prejudicial to the Defendants. This distinction has been recognised in many cases of which NIHE .v. Wimpey [1989] NI 395 is one example. In this jurisdiction the position of parties to litigation is protected by the Constitution. This Is expressly recognised in the principles enunciated by the Chief Justice in Primor Plc .v. Stokes Kennedy Crowley [1996] 2 IR 459 at 475 to which Counsel referred. The statement by the Chief Justice reaffirmed the proposition that the Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so. In addition he pointed out that even where inordinate and inexcusable delay had been established that the Court was required to exercise a judgment as to whether on the facts the balance of justice was in favour of or against the proceeding. This involved consideration of the implied constitutional principle of basic fairness of procedures. In particular the Court was required to consider whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiffs action.

14. It was submitted by Counsel on behalf of the Appellant that the admitted delay did not significantly prejudice the defence of the proceedings. Secondly, it was contended that the decision of the Defendants, as explained in the affidavit of Mr Costello, to close their file

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on the case in 1992 was ill advised and should not have been taken except in the context of in application then made to strike out the Plaintiff’s claim for want of prosecution.

15. In relation to the prejudice alleged by the Respondent’s and disputed by the Appellant it is accepted that the death of the Respondents bus driver occurred before protracted delay had taken place. On the other hand, it must be conceded that if the action had proceeded with reasonable dispatch the Respondents might not have been deprived of his evidence. With regard to the difficulty of obtaining appropriate medical evidence Counsel on behalf of the Respondents properly informed the Court that an examination of the Plaintiff had been carried out by a doctor on behalf of the Respondents in 1987. It was indicated the doctor concerned had retired and that no examination had been made since 1987. Again, the Court was informed that a statement had been taken by the Respondents from their driver and an issue was debated before the Court as to whether the admission of that statement would enable the proceedings to continue without substantial injustice to either party. It seems to vie that in all of the circumstances of the case such an arrangement would not provide a solution to the difficulties which exist. If evidence was called by the Plaintiff contradicting the statement of the deceased driver, serious injustice might be caused and in any event the problem with regard to medical evidence would remain unresolved. Furthermore there is the difficulty that other witnesses which the Respondents might have called are not now available. In any event the recollection of any witness of events which occurred 14 years ago must be of questionable value.

16. The fact that the Respondents did not apply in 1992 to have the proceedings struck-out for Lint of prosecution may be a factor to be taken into account but in the context of the facts the present case it is one to which little weight could be attached. It does not seem to me

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that the inactivity of the Respondents in that regard or their actions in seeking particulars in ii lie of 1996 could amount to acquiescence in the delay on the part of the Appellant. So far from it, it seems to me that the Respondents reviewed fully and fairly their position as it appeared after the belated delivery of the Statement of Claim and concluded correctly that they would be gravely prejudiced in the presentation of their defence after the inordinate and inexcusable delay which had by then occurred. In my view the learned Judge of the High Court was correct in striking-out the Plaintiffs claim. I believe that the form in which lie order was expressed was incorrect. It did not reflect the judgment on the facts submitted to the Court or the form in which the application had been brought. I would dismiss the appeal but rectify the terms in which the order of the High Court has been expressed by ordering that the action be dismissed for inordinate and inexcusable delay on the part of the Plaintiff to the prejudice of the Defendant.

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