Supreme Court allows appeal to refuse extension of time for serving statement of claim due to inordinate delay.

THE SUPREME COURT

S.C. NO. 201 OF 2001

Denham J.

Hardiman J.

McCracken J.

IRISH FAMILY PLANNING ASSOCIATION

PLAINTIFF/RESPONDENT

AND

YOUTH DEFENCE, MAURICE COLGAN, NIAMH NIC MHATHUNA, AND PATRICK MAHONY

DEFENDANTS/APPELLANTS

Judgment delivered on the 4th day of February, 2004 by Denham J.

1. Appeal

This is an appeal by Maurice Colgan and Niamh Nic Mhathuna, the second and third named defendants, hereinafter referred to as the

defendants, from the judgment and order of the High Court (Smyth J.) delivered on 25th June, 2001 and perfected on 3rd July, 2002

which enlarged the time for the delivery of the statement of claim on the defendants and set aside the order made by the Deputy

Master of the High Court on the 3rd May, 2001. The Irish Family Planning Association is the plaintiff and is hereinafter referred to as

the plaintiff.

2. Procedural Issue

The appeal raises an issue on procedure. Benedict Ó Floinn, B.L., who appeared on behalf of the defendants, submitted that there

was no issue of fact in the appeal, that at issue was a question of law. Counsel submitted that when an applicant in a motion such as

this comes before any court there is an onus on that applicant to place on affidavit an explanation of why the jurisdiction sought to

be invoked had not been exercised, i.e. in this case why the statement of claim had not been delivered within time, and that the

applicant must put before the court sufficient material to justify the invocation of the jurisdiction. On that legal issue he informed the

court that he had searched in the Rules, Courts Acts and cases but that he could not find any explicit statement of the law, other

than Hughes v. Hughes [1990] N.I. 295 which was the closest precedent.

On the other hand, Colman Fitzgerald, S.C., counsel for the plaintiff, submitted that the High Court judgment was correct, that the

test to be applied is as set out in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and if not then O’Domhnaill v. Merrick

[1984] I.R. 151, applies, as does Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561.

3. Facts

Thus the facts of the case are not in issue and are as follows. On the 8th March, 1999, the plaintiff obtained an interim injunction

against the defendants (amongst others). On the 9th March, 1999, the plenary summons was issued, the parties being those named

in the title of this case. The claim in the plenary summons is that:

“The Plaintiff’s Claim is as against the defendants and each of them, their servants or agents and in particular as against the

second and third named defendants as one of and as representing the first named defendants and is for:

(a) Damages for trespass,

(b) An injunction,”

On the 11th March, 1999 the plaintiff obtained an interlocutory injunction against the defendants restraining them from, pending the

trial of the action, trespassing on the plaintiff’s property, watching or besetting or carrying on any demonstration or manifestation

near or adjacent to the named premises, obstructing or attempting to obstruct or harass persons going into and leaving such clinics,

and intimidating or molesting or otherwise interfering with Tony O’Brien and/or any other member of the association. No further step

was taken until a motion for attachment and committal was brought by the plaintiff before the High Court on the 11th August, 1999.

A Memorandum of Appearance was entered on the 18th August, 1999, by a solicitor for the defendants. The form of the appearance

was amended so that it purported to be an appearance to the notice of motion (the words ‘Originating Summons’ having a line placed

through them). On the 18th August, 1999, the High Court made an order, the defendants undertaking to abide by the terms of the

order of the 11th March, 1999. Maurice Colgan appealed the order of the 18th August to the Supreme Court. He appeared in the

Supreme Court in person. His solicitor had not come off record. Apparently his solicitor took the view that she represented him only on

the motion. However, no formal order was sought discharging her. Mr. Colgan succeeded in his appeal to the Supreme Court on the

16th October, 2000. He then sought to discharge the order of attachment of the High Court. The matter of the solicitor being on

record then arose. In November, 2000 a notice of discharge of solicitor was filed. Mr. Colgan then brought a motion in the High Court

to have the injunction discharged. On the 29th January, 2001, the solicitor was reappointed as solicitor for Mr. Colgan. On the 12th

February, 2001, the High Court ordered that the injunction of the 11th March, 1999 as against Mr. Colgan be discharged, which order

was not appealed.

By notice of motion dated the 19th February, 2001, the plaintiff sought an order pursuant to O. 63, r. 1 (5) of the Rules of the

Superior Courts enlarging the time for the delivery of the statement of claim on the defendants. On the 3rd May, 2001, the Deputy

Master of the High Court refused the application. The plaintiff appealed to the High Court. On the 25th June, 2001, the High Court

determined that the order of the Deputy Master be set aside and time was extended for the service of the statement of claim by one

week. Against that order the defendants filed an appeal on the 20th July, 2001.

4. High Court

There was no written judgment of the High Court. Counsel for the plaintiff and defendants drafted separate notes of the judgment.

There was delay in doing this. On the 7th May, 2003, on the drafts being before Smyth J., he noted:

“It is now almost 2 years since the motion was signed and so long since the matter was before me that I must rely on counsel’s

note. There being no dispute on what I decided I have signed each and it must rest at that.”

It was agreed by counsel that the learned High Court judge held that there had been enough procedural shadow-boxing in this case,

and that it was a matter that should be brought to trial as soon as possible. The learned trial judge said that he did not want to get

into the merits of the case. He stated that it sufficed to say that the plaintiff’s claim in the statement of claim sought damages and

an injunction, which was granted; that then the injunction was discharged; that that is distinguishable; that the defendants were

sometimes represented and sometimes not; and that they were playing ducks and drakes. The learned trial judge was satisfied as per

paragraph 16 of the grounding affidavit. He held that the plaintiff could have served the statement of claim personally but that then

the solicitor would have complained. He stated that the parties should get on with the business of the case. He said that the

Supreme Court has laid out the test in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. He made an order extending the time

for the delivery of a statement of claim, and three weeks thereafter for the filing of the defence. He stated that the case should get

on.

The explanation in paragraph 16 of the affidavit of Michael Farrell of the 19th February, 2001, is as follows:

“I say that the Plaintiff is anxious and desirous of prosecuting the within proceedings and that a Statement of Claim has been

prepared on behalf of the Plaintiff herein. I say that it was unclear how the said Statement of Claim should be delivered given

the confusion over the representation of the Second and Third named Defendants or even whether the said Defendants required

delivery of a Statement.”

The reason for the significant delay between the order of the High Court and this appeal was not explained.

5. Grounds of Appeal

The grounds of appeal set out in the notice of appeal of the defendants are as follows:

“(1) That the learned trial judge misdirected himself in law in applying the case of Primor v. Stokes Kennedy Crowley [1996] 2

I.R. 146 to an application to extend the time for the delivery of a statement of claim by the Plaintiff/Respondent herein.

(2) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the fact that the

onus was on the Plaintiff/Respondent to establish that it was right and proper for the time limited for the delivery of the

statement of claim to be extended.

(3) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the Rules of the

Superior Courts.

(4) The learned trial judge failed to have any or any due regard for the fact that the Plaintiff/Respondent had withheld the

delivery of a statement of claim for an improper purpose and/or had been guilty of inexcusable and inordinate delay and an

abuse of the process of this High Court by failing to deliver the said statement of claim.

(5) The learned trial judge misdirected himself in law/or in fact in that he failed to accord any or any proper weight to the fact

that the issue of whether the Plaintiff had been guilty of inexcusable and inordinate delay in or about the delivery of the said

statement of claim was res judicata by reason of the judgment of Mr. Justice Lavan delivered on the 12th February, 2001 which

judgment discharged an interlocutory injunction against the Second Named Defendant/Appellant on the grounds that the

Plaintiff/Respondent was guilty of inordinate and abuse of process of the court in failing to bring the substantive proceedings to

trial.

(6) The learned trial judge erred in fact and acted contrary to the balance of the evidence of finding that the

Plaintiff/Respondent put before the Court any or any proper reason for the failure to deliver a statement of claim within the

period provided for in the Rules of the Superior Courts.

…”

6. Order 63 Rule 1 (5)

This is an application under O. 63 r. 1 (5) of the Rules of the Superior Courts for an extension of time within which to file the

statement of claim. The said rules states:

“In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following

orders:-

…

(5) An order for enlargement of the time for doing any act or taking any step in any action or matter.”

7. Submissions

Counsel for the defendants submitted that the learned High Court judge erred. He submitted that (a) when an applicant comes before

a court there is an onus on that applicant; (b) that the applicant must place before the court sufficient material to justify the

invocation of the jurisdiction, and (c) that thereafter the court weighs the explanation. He submitted that the High Court erred in

casting the onus on the defendants, and that many issues may arise on the explanation. However, in this case (c) did not arise as

the plaintiff did not accept where the onus lay and did not advance an explanation.

Opposing the appeal, counsel for the plaintiff submitted that the High Court had not erred. He submitted that the test was whether

there had been inordinate and inexcusable delay and that the onus was on the person opposing the motion. If there was inordinate

and inexcusable delay then it was for the court to weigh the relevant matters.

8. Difficulties

However, during the submissions, responding to queries from the court, it became clear that there were further difficulties. The

relevant portion of the plenary summons was the claim for “damages for trespass.” The statement of claim (which was served within a

week of the High Court order) contains no allegation against the second and third named defendants. It sets out that the first named

defendant is an unincorporated body, that the second named defendant is a member of the first named defendant, that the third

named defendant is also a member, that on the 6th March, 1999, a group of about twelve members of the first named defendant

unlawfully entered without authority and occupied a clinic premises of the plaintiff. There is no allegation that the defendants were in

this group. There are other allegations but they do not relate to the defendants. Counsel for the plaintiff accepted that there were no

allegations against the defendants in the statement of claim, and that on the face of the document it did not allege that the

defendants had breached the law. Counsel for the plaintiff submitted that this was merely an application for an extension of time

within which to serve the statement of claim and referred to powers under the rules of court by which a statement of claim could be

amended.

9. Decision

This is an application for an extension of time within which to serve a statement of claim on the defendants. There is no statement

alleging a wrongful act of the defendants in the statement of claim before the court. The fact that there are powers in the rules to

enable applications to amend a statement of claim is not sufficient to cure this difficulty. This is so even though it could be submitted

that there was no appearance and that pursuant to O. 28 r. 2 such amendment might be made without motion. The fact is that the

plaintiff has brought this motion and continues to pursue its objective. It is notable that it is a situation also where the defendants

could consider applying to the court to disallow the amendment under O. 28 r. 4.

The statement of claim does not disclose any actionable case against the defendants. It is not sufficient to allege guilt by

association, to allege that Youth Defence committed the actions and that the defendants are members of Youth Defence. There are

no facts alleged against the defendants which give rise to a cause of action. Indeed, counsel for the plaintiff stated that it would not

be the case against the defendants that they entered the premises.

The case relates to past events. The pleadings allege wrongful acts in 1999. The injunction against the second named defendant has

been discharged. The third named defendant gave an undertaking. The remaining issue on the summons is trespass. It is now clear

that there are no allegations that the defendants entered the premises of the plaintiff. The fact that they were members of Youth

Defence is not sufficient to base such a claim. There is no claim of conspiracy. While counsel for the plaintiff accepted that the

statement of claim was defective, he submitted that that was not the issue that it could be amended. I do not accept this

submission. The issue is whether the High Court erred in extending time to the plaintiff within which to serve the statement of claim

before the court.

The circumstances of this case are such that because of the actions of the defendants it could be argued that there has been no

appearance. In such a situation the plaintiff would not be out of time within which to serve the statement of claim. Consequently,

there would be no need to seek to extend time – or seek a court order to extend time. However, counsel for the plaintiff has

continued to seek the extension of time within which to serve the statement of claim.

I am satisfied that on an application before a court to extend time for the service of a statement of claim the court has an inherent

jurisdiction to control the procedure and to dismiss an application when the justice of the case so requires. There is an onus on an

applicant to present a statement of claim in an appropriate form. A moving party has such a basic onus in all applications. In some

situations an onus may then shift to the defence or respondents. However, there is a fundamental onus on an applicant to present an

application in appropriate form and with the relevant facts and documents. When the application relates to an application for an

extension of time within which to serve a statement of claim, a draft statement of claim should be exhibited. A court in considering

the application may also consider the draft statement of claim. The statement of claim should contain the material facts upon which

the plaintiff relies to establish a cause of action. If the statement of claim discloses no cause of action against the defendants then

the court has and should exercise an inherent jurisdiction to regulate its proceedings. In so exercising its jurisdiction a court may not

order the extension of time for the service of a document which is defective on its face. It would be contrary to common sense and

to reason for a court knowingly to order that time be extended to enable the service of a statement of claim which on its face shows

no cause of action.

The lack of a cause of action on the statement of claim was not drawn to the attention of the High Court when dealing with this

matter on a busy Monday list. It is the jurisprudence of this court that it is a court of appeal and that issues should first be the

subject of legal argument and decision in a court of trial. However, in this case, it is accepted that the statement of claim is

defective. I am satisfied that the submission of counsel for the plaintiff that it may be amended in the future is not a ground which

saves this application. In view of the fact that the statement of claim is defective, in that it does not contain a cause of action

against the defendants, I would allow the appeal and refuse the application to extend time within which to serve the statement of

claim.

In addition, I am of the opinion that when a plaintiff has obtained an interlocutory injunction on foot of a plenary summons it is wholly

inappropriate that having achieved the benefit of the equitable jurisdiction of the court the plaintiff should be dilatory in serving the

statement of claim. In Hytrac Conveyors v. Conveyors International [1982] 3 All E.R. 415 at p. 417 Lawton L.J. held

“In this case, as a result of the attempt to get an interlocutory injunction before the delivery of the statement of claim, weeks

passed and by the middle of July still no statement of claim had been delivered. This was particularly unfortunate from the point

of view of the fourth, fifth, sixth and seventh, defendants, who said that they were on the fringes of the case and did not

know what allegations were being made against them at all. As a result of pressure put on the plaintiffs by the defendants, the

plaintiffs asked at long last for extension of time in which to deliver a statement of claim. By this time the first seven

defendants had applied under Ord. 19, r. 1 for the action to be dismissed on the ground of inordinate delay. Whitford J. granted

that application.

… he said:

‘It is not right that the plaintiff should start this action without knowing what form his statement of claim will take until

after the interlocutory proceedings are completed. It is very important in a case concerning copyright and breach of

confidence that the exact ambit of the plaintiffs’ claim be made known and if charges of conspiracy are to be raised it is

wholly inappropriate that it be brought in at a later stage if it could properly be pleaded in the first instance.’

For my part, I agree with that approach. It has to be remembered by all concerned that we do not have in this country an

inquisitorial procedure for civil litigation. Our procedure is accusatorial. Those who make charges must state right at the

beginning what they are and what facts they are based on. They must not use Anton Piller orders as a means of finding out

what sort of charges they can make. They must deliver their statement of claim within the time specified in the rules, unless

the court orders otherwise.

I would refuse the application.”

I also agree with that approach. Those who make charges must state at an early stage what they are and on what facts they are

based. And while Hytrac was a case relating to Anton Piller orders, the principles apply equally to situations where an injunction has

been granted. As a general principle the rules of court should not be utilised, or facilitated by court orders, to ambush parties. Nor

should extensive delay be condoned. And, of course, the court should not facilitate the service of defective documents.

That decision is sufficient to resolve the appeal. The issues raised by counsel and the references to Rainsford v. Corporation of

Limerick [1995] 2 I.L.R.M. 561, O’Domhnaill v. Merrick [1984] I.R. 151, Daly v. Limerick Corporation, unreported judgment of the

Supreme Court, Keane C.J. of 7th March, 2000, Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and Hughes v. Hughes

[1990] N.I. 295 while of great interest do not now arise for decision. It has long been the jurisprudence of this court that it will not

decide a moot.

10. Conclusion

For the reasons given I would allow the appeal and refuse the application to extend time within which to serve the statement of

claim.