High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Strong v. Translink [1999] NIQB 9; [1999] NIJB 215 (11th May, 1999)

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

1. This is an appeal from a decision of the Master given on 19 March 1999. The Master made the following orders:-

(a) he dismissed a summons by which the defendant sought to have the action dismissed pursuant to RSC (Northern Ireland) Order 19 Rule 1("Order 19 Rule 1") for failure to deliver a statement of claim within the prescribed period; and

(b) he granted the plaintiff an extension of time to serve the statement of claim pursuant to the Rules of the Supreme Court (Northern Ireland) 1980, Order 3 Rule 5 ("Order 3 Rule 5").

2. The plaintiff was employed during the course of 1994 as an auto electrician with the defendant. He alleges that he sustained an injury to his back in the course of employment on 17 December 1994 due to the negligence of the defendant. On 10 July 1995, McClure and Company, the solicitors acting on behalf of the plaintiff, forwarded a letter of claim to the defendants couched in the following terms:

"Dear Sir,

We have been consulted by Mr Andrew Strong of 49 Hilden Court, Lambeg with regard to injuries he sustained as a result of his employment as an auto electrician with Citybus. Our client complains that he sustained back pain and pain radiating into his right leg as a result of his work with Citybus.

From our client's instructions it would appear that his injuries are as a result of the negligence and breach of statutory duty of the company its servants and agents and accordingly we would be grateful if you would advise whether or not it is your intention to compensate him in respect thereof."

3. The defendant responded by way of letter of 11 August 1995. The plaintiff's solicitors wrote again to the defendant on 29 August 1995 in the following terms:

"Dear Sir,

We refer to the above matter and to your letter of 11th inst and would advise that our client sustained injuries while attempting to insert a battery into the side of a vehicle during the course of his employment on 17 December 1994. We understand that following the incident out client began to experience lower back pain.

We shall be arranging to have our client medically examined and shall have no objection to sharing such report with you on the usual terms once your investigations into the matter are complete and liability is admitted.

In the meantime we enclose herewith CRU detail form as requested."

4. It is accepted by the defendant that, albeit unconnected with the alleged accident, it carried out a manual handling assessment on 15 February 1995 of the job on which the plaintiff had been engaged.

5. The plaintiff's solicitors then proceeded to arrange a series of medical examinations of the plaintiff. The reports and correspondence I have in this regard are as follows:-

(a) A report from Mr Adair FRCS on 27 February 1996.

(b) An updated comment from Mr Adair on 30 August 1996.

(c) A second report from Mr Adair on 8 July 1997.

(d) A radiological report from Dr Lawson FRCR on 4 August 1997.

(e) A third report from Mr Adair on 28 April 1998.

(f) An updated comment from Mr Adair both on 9 June 1998 and 23 September 1998.

6. A writ of summons was served on the defendant by the plaintiff's solicitors on 17 December 1997. An appearance was entered on behalf of the defendant by Macaulay and Ritchie solicitors on 16 January 1998. No further legal proceedings were taken and on 8 January 1999 the defendant issued the summons in this matter pursuant to Order 19 Rule 1. The plaintiff then purported to serve a statement of claim on the defendant on 20 January 1999 and on 15 March 1999 issued a summons for an extension of time to serve the statement of claim pursuant to Order 3 Rule 5. Before this, on 20 January 1999 the defendant's solicitors wrote to the plaintiff's solicitors in the following terms:

"We refer to this matter. We do not accept service of the statement of claim in this case. We are proceeding to strike this claim out."

7. The plaintiff's advisers now account for the delay between the cause of the action arising and the issue of the writ, and the delay from the issue of the writ until the service of the statement of claim by asserting that although a drafted statement of claim had been sitting on the plaintiff's solicitors file from February 1998, it was not served because attempts were being made to clarify the medical issues. It is further asserted that attempts were made to assess and clarify the position which the plaintiff faced in that whilst he had not returned to work from December 1994, he had nevertheless not been retired or dismissed by the defendant and was still technically considered to an employee of the defendant even though he had not been receiving pay since December 1995. In short the plaintiff makes the case that it was thought appropriate to delay service of the statement of claim until the plaintiff's employment position had crystallised and his advisers were in a position to serve a fully accurate and informed statement of claim. At this stage I should say that given the tenor of the correspondence between the plaintiff's solicitor and the plaintiff's orthopaedic consultant Mr Adair FRCS particularly after February 1998, I believe that there is a measure of credibility in these assertions in light of the nature of the injury and the pre-existing condition that existed in the plaintiff's back. There did exist a measure of uncertainty with reference to his employment.

8. A number of issues fall to be considered in this matter:

(1) Under RSC (NI) Ord. 18, r 1, unless the court gives leave to the contrary, a plaintiff must serve a statement of claim on the defendant before the expiration of six weeks after the defendant enters an appearance. The court may extend the time under Ord. 3, r 5 on such terms as it thinks just. If the plaintiff fails to serve a statement of claim within the time fixed by the Rules, the defendant may apply for an order to dismiss the action. The court has also an inherent jurisdiction to dismiss an action for want of prosecution. Accordingly it is entitled to have resort either to the specific power contained in Ord. 19, r 1 or to the inherent jurisdiction (see J Braithwaite & Sons Limited -v- Anley Maritime Agencies Limited (1990) 4 NIJB 43 at 53-54. Mr McEwan who appeared on behalf of the plaintiff/respondent argued that the service of the statement of claim before the hearing of the summons in this matter is fatal to the defendant's application albeit that it has been served outside the time prescribed by the Rules of the Supreme Court. To this end he relies on the Braithwaite decision. This argument is wholly misconceived. The matter has subsequently been considered in Neill -v- Corbett 1992 NI 251 where the court reviewed the principles governing dismissal for want of prosecution pursuant to Ord. 19, r 1, under the inherent jurisdiction of the court and also under Ord. 3, r 5. At page 254J Carswell J (as he then was) said:

"... The defendant is left with a choice of courses of action if the plaintiff is guilty of delay in serving his statement of claim. If the statement of claim is served out of time, he may refuse to accept it, and may require the plaintiff to obtain an order from the court extending the time. If the court declines to extend the time, then the action cannot proceed and may be struck out. ... He may on the other hand move to strike out the action under Ord. 19, r 1 or the inherent jurisdiction and may be disposed to take this course if no statement of claim has been served and he wishes to bring the matter to a head (although a wise defendant may be mindful of the proverbial advice about sleeping dogs). If he takes this course, the court will consider the issue of delay on the lines of the approach set out in Allen -v- Sir Alfred McAlpine & Sons Ltd 1968 1 AER 543 ... subject to the qualification in Birkett -v- James (1977) 2 AER 801. Even if the court declines to dismiss the action under either of these heads, the defendant may still have a second barrel. If he has refused to accept late service of a statement of claim, the plaintiff will be compelled to seek an extension of time. As Fox LJ pointed out in Price -v- Dannimac Ltd, it does not automatically follow that the one application governs the other, and the plaintiff will still have to persuade the court that it is a proper case to extend time for delivery of the statement of claim. When it comes to do so, the length of the delay since the entry of an appearance and the reasons for that delay will be very material factors. I conclude this review of the applicable principles by observing that the service of a statement of claim by the plaintiff's solicitors does not have the effect of curing the default, as it would have been under earlier versions of the Rules. It was held in Clough -v- Clough (1968) 1 AER 1179, (1968) 1 WLR 525 under the identical English provision that even if a statement of claim was served the court retains a discretion to dismiss the action for want of prosecution."

9. Accordingly there is no substance in this first point by Mr McEwan.

(2) Secondly Mr McEwan argues that the summons issued by the defendant relies solely on Order 19 rule 1 and makes no reference to the inherent jurisdiction of the court. Mr Ferrity, who appears on behalf of the defendant/appellant, declines to so confine himself and has relied on the inherent jurisdiction of the court in argument before me. In my view where the court has an inherent jurisdiction, this can be exercised by the court of its own motion. It can be evoked without recourse to Order 19 rule 1. (see Neill -v- Corbett at page 254H and Valentine on Civil Proceedings in the Supreme Court at page 195). Accordingly I am of the view that the defendant is entitled to rely on the inherent jurisdiction of the court in this matter.

(3) In Costelow -v- Somerset County Council (1993) 1 WLR 256, (1993) 1 ADR 952, the Court of Appeal in England gave guidance for courts confronted by a situation where a defendant applies to have an action dismissed because of a failure by the plaintiff to take steps in the proceedings within the time required by the rules and where the plaintiff at the same time applies for an extension of time under Order 3, Rule 5 to take the step in question. Two principles are to be considered. The first is that the rules of court and the associated rules of practice devised in the public interest to promote the expeditious dispatch of litigation must be observed. The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default unless the default causes prejudice to his opponent for which an award of costs cannot compensate. Neither principle is absolute, but the court's practice has been to treat the existence of such prejudice as a crucial and often decisive factor.

10. In so far as there has been delay in this matter, I find that the reason rendered by the plaintiff's solicitor for delaying does not excuse the delay but I do not find the delay inordinate in the circumstances. I believe a statement of claim could well have been filed putting the defendant on notice of the gravamen of the case, but equally so, given the notice that was accorded to the defendant of the nature of the claim in the correspondence to which I have earlier referred, I do not believe that the delay was in any way inordinate.

11. Secondly, in assessing the degree of prejudice thereby created by this delay, I do not consider that the delay in serving the statement of claim has caused the defendant additional prejudice of more than minimal degree. I am of this view for the following reasons:

(a) Other than in one respect which I shall deal with below, the defendant did not seek to allege that there was any specific item of prejudice accruing such as a witness who could no longer be found, a witness who had died, or a witness who could no longer remember relevant matters because of the passage of time. The correspondence from the plaintiff's solicitor of August 1995 was relatively specific in its allegations and the defendant was thus to some extent put on notice from a relatively early stage of the precise nature of the allegations being made. The risk assessment carried out on the plaintiff's employment (copies of which have been retained) must have assisted in this regard. Mr Ferrity relied on the principle expressed by McGonigal LJ in Houston -v- James P Corry & Co Ltd (1972) NIJB at page 4 when he said:

"It appears to me that where there is a delay of some years the inference of serious prejudice is properly to be drawn from the delay itself."

12. In this instance I consider that the notice given to the defendant of the nature of the allegation at a relatively early stage, coupled with the absence of any specific prejudice (subject to the one matter I shall deal with shortly) allows that inference to be rebutted.

(b) Mr Ferrity argued that in this case the defendant suffered a specific prejudice in that the delay permitted a significant increase in the sum to be recovered by the Compensation Recovery Unit should the plaintiff succeed. I do not accept that this is a material prejudice in this instance. The plaintiff's claim includes a claim for loss of earning which is ongoing. If his actions fails, then there is no figure to be repaid by the defendant to the Compensation Recovery Unit. If the plaintiff succeeds, then the likelihood is that the special damage will be in the region of or in excess of the sum to be recovered by the Compensation Recovery Unit and therefore no additional cost will have accrued to the defendant. Alternatively, since the plaintiff claims past and future loss, even had the case been determined at a very early stage when the special damage would have been commensurately less, and of course the sum to be recovered by the Compensation Recovery Unit would also have been less, the likelihood is that the future loss would have been larger than now will be the case with the passage of time should he be successful. In short, I do not consider that this defendant has suffered any material prejudice or has incurred a risk of prejudice. In the circumstances therefore I affirm the decisions of the Master.

13. The Master awarded the costs of the original hearings to the defendant. I affirm that finding. Insofar as the costs of this appeal are concerned, I award costs to the plaintiff. It was appropriate that the Master should award costs to the defendant because the summonses had been occasioned by delay on the part of the plaintiff. However, the defendant has chosen to challenge the Master's decisions and accordingly since the defendant has now lost those appeals, costs must follow the event and I award them to the plaintiff for this appeal hearing.