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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kilcoyne -v- Minister for Defence & ors [2014] IESC 10 (26 February 2014)
URL: http://www.bailii.org/ie/cases/IESC/2014/S10.html
Cite as: [2014] IESC 10
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Judgment Title: Kilcoyne -v- Minister for Defence & ors Neutral Citation: [2014] IESC 10 Supreme Court Record Number: 266/08 High Court Record Number: 1998 6708 P Date of Delivery: 26/02/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Laffoy J. Judgment by: Laffoy J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT [Appeal No. 266/2008] Denham, C.J. Murray, J. Laffoy J. BETWEEN PATRICK JOSEPH KILCOYNE PLAINTIFF/APPELLANT AND
THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS/RESPONDENTS Judgment of Ms. Justice Laffoy delivered on 26th February, 2014 The appeal 2. The only grounds on which the Appellant has sought to set aside the order of the High Court in the notice of appeal are framed in general terms: that the High Court Judge erred in law and in fact in holding that the Appellant delayed the prosecution of the action. Process of the proceedings through the High Court 4. The High Court proceedings were initiated by a plenary summons which issued on 5th June, 1998. In other words, the proceedings were issued over thirteen years after the Appellant was discharged from the Defence Forces. At the time the plenary summons was issued the Appellant was residing in Western Australia. The plenary summons was issued on his behalf by Mullaneys, Solicitors, who have remained on record for the Appellant at all times. 5. After the issue of the plenary summons the following procedural steps were taken in the proceedings:
(b) On 23rd July, 1998 Mullaneys delivered a statement of claim on behalf of the Appellant wherein the Appellant sought damages for personal injuries for hearing loss, damage, inconvenience and expense which it was alleged he had suffered as a result of the negligence and breach of duty of the Respondents in exposing him to loud noise throughout his service in the Defence Forces. (c) A defence was delivered on behalf of the Respondents. The copy of the defence put before this Court suggests that it was delivered on 15th December, 1998. However, apparently, the defence was delivered following a motion for judgment in default of defence brought on behalf of the Appellant, which was returnable on 22nd February, 1999. Therefore, it would appear that the defence was actually delivered sometime in early 1999. Nothing turns on that uncertainty, because it is clear that no further procedural step was taken in the proceedings from 1999 for seven years until 2006. 7. The proceedings were dormant between 1999 and 2006. In 2006 a different firm of solicitors, Byrne Carolan Cunnigham (BCC), commenced correspondence with the Department of Defence on behalf of the Appellant. By letter dated 12th July, 2006, BCC furnished to the Department the Appellant’s authority “in respect of his medical records and Army records generally” and requested the Department to revert. It is interesting to note that the fact that the Appellant had changed his address in Western Australia since the plenary summons was issued is plain on the face of that letter and that the address shown was still his address in April 2008 when the Respondents’ motion to dismiss was initiated and determined by Hedigan J. The response to the letter of 12th July, 2006, which sought information in relation to the Appellant, was a letter dated 31st July, 2006 from the State Claims Agency to which body BCC’s letter had been referred. By letter dated 31st August, 2006, BCC furnished the State Claims Agency with the information which had been sought. It is clear from the affidavit which grounded the motion to dismiss, the affidavit of Caitriona Kinane, solicitor in the firm of Corrigan & Corrigan, sworn on 28th March, 2008, that at that stage both BCC and the State Claims Agency were unaware of the High Court proceedings. 8. When the State Claims Agency became aware of the High Court proceedings, it instructed Corrigan & Corrigan on behalf of the Respondents, which led to correspondence from Corrigan & Corrigan to BCC, which is before this Court although it was not before the High Court. By letter dated 14th November, 2006, Corrigan & Corrigan informed BCC that they had been instructed on behalf of the Respondents and they enclosed “a notice of change of solicitor”. That letter suggests that Corrigan & Corrigan were aware that BCC were not on record for the Appellant, given that they sought an appropriate notice of change of solicitor. There was no response from BCC to that letter, nor was there a response to a reminder dated 22nd January, 2007 in which Corrigan & Corrigan reiterated the request for documentation to confirm that BCC was on record. 9. The next step taken by Corrigan & Corrigan was to contact Mullaneys in early February 2008. Following a telephone conversation on 7th February, 2008, Corrigan & Corrigan wrote to Mullaneys on 8th February, 2008 enclosing notice of change of solicitors, which they stated had previously been served on BCC, and which disclosed that they had been appointed solicitors for the Respondents. Corrigan & Corrigan confirmed that they were instructed to proceed by way of motion to dismiss the Appellant’s claim for want of prosecution, but that they would stay their hand for two or three weeks, but expected to hear from Mullaneys in the interim. There was further telephone contact between Corrigan & Corrigan and Trevor Collins of Mullaneys on 11th February, 2008, during which Corrigan & Corrigan agreed that Mullaneys would be allowed a further month to make contact with the Appellant and to take instructions, subject to the caveat that, if Mullaneys did not revert within that period, a motion would be brought to dismiss the claim. Mullaneys did not revert. 10. The notice of motion seeking an order dismissing the proceedings was filed in the High Court on 1st April, 2008 and it was returnable for 28th April, 2008. The notice of motion, grounding affidavit and exhibits were served on Mullaneys by registered post on 2nd April, 2008. Although BCC were not on record, the motion papers were also served on BCC by registered post on 16th April, 2008, because of the previous correspondence which had taken place between Corrigan & Corrigan and BCC. The hearing of the motion to dismiss
The law
(1) Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings. (2) Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings. (3) Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion. (4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant’s personal blameworthiness for delay is material to the exercise of the courts discretion.”
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable; (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case; (d) in considering this latter obligation the court is entitled to take into consideration and have regard to (i) the implied constitutional principles of basic fairness of procedures, (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action, (iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct of both parties should be looked at, (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay, (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case, (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant, (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.” 14. Before considering whether, as was submitted on behalf of the Appellant, there was neither inordinate nor inexcusable delay in prosecuting the Appellant’s proceedings or, alternatively, if there is a finding that there was, that the balance of justice lies in favour of allowing the Appellant to proceed with his claim, it is necessary to consider evidence filed in the Supreme Court on behalf of the Appellant after the decision of the High Court, being an affidavit of Trevor Collins, a solicitor in Mullaneys, which was sworn on 29th January, 2009. Evidence on behalf of Appellant 16. Mr. Collins has averred that Mullaneys received no further communications from solicitors acting on behalf of the Respondents until the communications in February 2008, which have been outlined earlier. Mullaneys had no understanding or knowledge of the involvement of BCC until they received the letter of 8th February, 2008. Mr. Collins does not disclose in the affidavit that Mullaneys initiated any contact with BCC at that stage to obtain an understanding or knowledge of BCC’s involvement. 17. However, Mr. Collins has averred that Mullaneys were informed by letter of 17th April, 2008 from BCC that the Appellant had personally attended with them in or around July 2006 and that they had taken instructions from him unaware of Mullaneys’ involvement in the proceedings. Mr. Collins has also averred that by letter of 17th April, 2008, BCC wrote to the Appellant at his new address, which was the address referred to in the letter of 12th July, 2006 from BCC to the Department of Defence, for further instructions and that they advised him to contact Mullaneys. That, it appears, was the factual situation when the motion to dismiss was heard on 28th April, 2008. Mr. Collins acknowledged that the motion papers were served on Mullaneys on 2nd April, 2008. He also referred to the fact that the motion papers were also served on BCC on 16th April, 2008. His explanation for the attitude of Mullaneys to the hearing on 28th April, 2008 was that they understood that, because BCC had received the most recent instructions, they were now representing the Appellant. The attitude of Mullaneys on 28th April, 2008 was that, notwithstanding that they were still on record for the Appellant in the proceedings, they had no instructions from the Appellant. 18. The evidence as to the contact of the Appellant with Mullaneys after the order of the High Court was made on 28th April, 2008 is anything but clear. Although, presumably, an affidavit could have been procured from a solicitor in BCC exhibiting the letter of 17th April, 2008 from BCC to the Appellant, no copy of that letter is before the Court. More significantly, there is no evidence as to when the Appellant got in touch with Mullaneys after having received that letter. Mr. Collins has merely averred that the Appellant “indicated that when he received [the letter of 17th April, 2008] . . . he was confused and assumed that someone would contact him to advise the next step”. Mr. Collins has further averred that Mullaneys subsequently wrote to the Appellant at the address provided by BCC to notify him of the outcome of the application to dismiss, without exhibiting a copy of that letter or indicating precisely when it was sent to the Appellant. The Appellant subsequently contacted Mullaneys “to advise that he never had any wish for the matters to end and that due to personal circumstances his life has essentially fallen apart and that on his return to Ireland in 2006 he had contacted [BCC] under the assumption that matters had never been progressed after he had instructed Mullaneys . . .”. The Appellant stated that he wished to appeal the order. 19. The Appellant did not swear any affidavit in response either to the application to the High Court or in support of the appeal. The only evidence before this Court as to his situation is what has been averred to by Mr. Collins, as outlined above. Inordinate delay?
(b) the decision of the Supreme Court in Hanley v. Minister for Defence [1999] 4 I.R. 392, and (c) the Early Settlement Scheme introduced by the Minister for Defence in 2000 and continued until 2002, it cannot be regarded as a period of inordinate delay. 22. I am satisfied that, in the circumstances of the case, the Appellant’s delay of almost nine years prior to the order of Hedigan J. in prosecuting the proceedings was inordinate. Inexcusable delay? 24. Neither prong of that argument, in my view, constitutes an excuse for the inordinate delay in prosecuting the proceedings. The reality is that the proceedings were not prosecuted for over six years because the Appellant did not make contact with Mullaneys, for whatever reason, and when he returned to Ireland in 2006, rather than make contact with Mullaneys, he gave instructions to BCC. BCC knew of the existence of the proceedings from at least November 2006 and they must have known of Mullaneys’ involvement. From November 2006 onwards, when it was clear that the proceedings existed and that Mullaneys were on record for the Appellant, the Respondents’ solicitors were entitled to assume that the matter of representation of the Appellant would be sorted out between BCC and Mullaneys. I cannot see that any fault attaches to Corrigan & Corrigan in not having sent a copy of the letter of 7th January, 2007 to Mullaneys. In any event, Corrigan & Corrigan did make direct contact with Mullaneys on 7th February, 2008 and, when requested to do so, they gave Mullaneys time to address the delay issue. Notwithstanding that, when the motion came on for hearing almost three months later, it appears that Mullaneys had not made contact with the Appellant. Finally, having regard to the steps taken by Corrigan & Corrigan to ensure that the Appellant’s legal representatives were before the Court, there is no reasonable basis on which they could have been expected to request the Court to adjourn the motion. Both firms of solicitors which had been instructed by the Appellant had been served with the motion papers and were aware that the motion was listed. Notwithstanding that, no steps were taken by either of them to have the Appellant represented on the hearing of the motion so as to apprise the Court of his position. 25. Accordingly, I am satisfied that the delay on the part of the Appellant is inexcusable. Balance of justice 27. On the issue as to whether the balance of justice lies in favour of allowing the Appellant to proceed with his claim or dismissing it, counsel for the Appellant generalised in stating that the chance of a major injustice being done to the Appellant, if his claim is dismissed, is significantly greater than the chance that a major injustice would be done to the Respondents in allowing it to proceed. However, he did not identify any good reason for the Court allowing the proceedings to proceed other than suggesting that the peculiar circumstances of this case, in which the solicitors for the Respondents were corresponding with both Mullaneys and BCC, constitute a good reason. I have already rejected that argument as excusing the inordinate delay in prosecuting the proceedings. 28. As was pointed out by Finlay P. in the fourth principle outlined in Rainsford v. Limerick Corporation, consideration of the extent of the litigant’s blameworthiness for delay is material in the exercise of the Court’s discretion. In this case, counsel for the Appellant has attempted to ascribe the cause of the delay to the actions of the solicitors who came on record for the Respondents, Corrigan & Corrigan, as late as November 2006. That proposition has already been rejected, as have the specific allegations made against Corrigan & Corrigan. 29. Taking a broader view of the matter, there can be no doubt but that blameworthiness for the delay must be primarily attributable to the Appellant personally, even if some inactivity on the part of Mullaneys and on the part of BCC has contributed to the delay. In 1998, when the Appellant instructed Mullaneys, the wrongdoing which he alleged against the Respondents had occurred at the latest thirteen years previously. On the evidence, he instructed Mullaneys to initiate the proceedings in July 1998, which they did. However, on the evidence, he made no contact with Mullaneys after 1999. Not only that, but, ignoring the fact that he had instructed Mullaneys to institute proceedings and that, as apparently he had some contact with that firm after the proceedings had been instituted he must have been aware of the steps taken by Mullaneys, the proceedings existed in 2006, he gave instructions to BCC to pursue a similar claim for personal injuries on his behalf against the State as the claim in the proceedings, without apprising BCC of the existing proceedings or of Mullaneys’ involvement. 30. Unfortunately, matters did not improve after BCC were instructed by the Appellant. Even though BCC had been apprised of the existing proceedings by November 2006, and must have been aware that Mullaneys were on record, despite pressure from the Respondents’ solicitors, no step whatsoever was taken by them to progress the proceedings. The correspondence from the Respondents’ solicitors was effectively ignored. Taking an overview of the matter and, in particular, in the absence of evidence to the contrary, it is reasonable to infer that the Appellant is personally responsible for the continuing delay. 31. The consequence of what is outlined in the preceding paragraph was that, when the motion for dismissal came on for hearing on the 28th April, 2008, the proceedings had been in existence for approximately ten years and no procedural step to advance the proceedings had been taken for nine years. Apart from that, the wrongdoing, which it was alleged by the Appellant gave rise to his claim, had occurred at least twenty three years previously. Having regard to those facts, I consider that it is not necessary to enter into the discussion outlined in Delany and McGrath (op. cit.) (at paras. 15 – 43 et seq.) on whether the Rainsford/Primor test falls to be re-assessed in the light of the enactment of the European Convention on Human Rights Act 2003 and the developing jurisprudence of the European Court of Human Rights. On the factual evidence before this Court, the only reasonable conclusion is that the balance of justice, which must be considered from the perspective of the entitlement of each side to a hearing and to a conclusion of the proceedings within a reasonable time, militates against finding on the appeal for the Appellant, who is responsible for the wholly unreasonable delay in prosecuting the proceedings and bringing finality to them which the Respondents have had to endure. | ||||||||||||||||