Supreme Court dismisses appeal to extend time for statement of claim lacking cause of action against absent defendants.

THE SUPREME COURT

Record No: 201/01

Denham J

Hardiman J

McCracken J

Between:

Irish Family Planning Association

Plaintiff/ Respondent

AND

Youth Defence, Maurice Colgan, Niamh Nic Mahutna and Patrick Mahony

Defendants/ Appellants

Judgment of Mr Justice McCracken delivered the 4th day of February 2004.

On 8th March 1999 the Plaintiff obtained an interim injunction against the Defendants restraining them from trespassing on certain

property of the Plaintiff. On the following day, 9th March 1999, a plenary summons and a notice of motion returnable for 11th March

1999 claiming interlocutory injunctions were issued. The general endorsement of claim on the plenary summons read as follows:-

“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 defendant and is for:-

(a) Damages for trespass,

(b) an injunction.”

The notice of motion came on for hearing on 11th March 1999 in the absence of the Defendants, and in its order of that date the

Court deemed good and sufficient the service on the second, third and fourth named Defendants and granted an interlocutory

injunction in the following terms:-

“That the defendants and each of them their servants or agents any member or associate of Youth Defence or any person

with notice of the making of this order be restrained pending the trial of this action from

(A) Trespassing on the plaintiff’s property and in particular on any of the clinics operated by the plaintiff at Cathal Brugha

Street, Dublin 1 and/or Synge Street, Dublin 2, and/or The Square Tallaght and/or Head Office 16-17 Lower O’Connell Street,

Dublin 1.

(B) Watching, besetting or carrying on any demonstration or manifestation near or adjacent to those premises.

(C) Obstructing or attempting in any way to obstruct or harass persons going into and leaving such clinics in particular

members of the plaintiff’s staff and those who seek to avail of the services provided thereon by the plaintiff.

(D) Intimidating, molesting or otherwise interfering with Tony O’Brien and/or any other member of the Association and/or any

other member of staff of the Association by using crude and obnoxious language or otherwise.”

No appearance was entered on behalf of any of the Defendants and on 30th July 1999 the Plaintiff issued a notice of motion seeking

an order for attachment and committal against a number of persons including the second, third and fourth named Defendants for

alleged breach of the injunction. On 11th August 1999 the matter came before a Vacation sitting of the High Court. Although no

appearance had been entered on behalf of the Defendants, Counsel appeared, inter alia, on behalf of the second and third named

Defendants and the motion was adjourned for one week.

On 18th August 1999 a memorandum of appearance was entered at the Central Office by Ms Anne Greene, solicitor on behalf of the

second and third named Defendants, although it was never served on the Plaintiff or its solicitor. That memorandum purported to

enter an appearance “to the notice of motion dated 30th July 1999”, and Counsel instructed by Ms Greene appeared in Court on

behalf of, inter alia, the second and third named Defendants. In subsequent correspondence Ms Greene maintained that she did not

act for and had no instructions from the second and third named Defendants since 18th August 1999. On that date, the attachment

and committal proceedings as against the second and third named Defendants were adjourned generally with liberty to re-enter.

The second named Defendant, acting in person, appealed to the Supreme Court against the order of 18th August 1999 insofar as it

affected him, and on 16th October 2000 the Supreme Court ordered that the notice of motion against the second named Defendant

be dismissed and that he recover the costs of the High Court when taxed and ascertained.

On 17th November 2000 the second named Defendant, again acting in person, issued a notice of motion seeking to set aside a portion

of the order for the interlocutory injunction dated 11th March 1999. On 29th January 2001 Ms Greene filed a document which

purported to be a “notice of appointment of solicitor” in the Central Office in which she stated she had been appointed solicitor for

the second named Defendant. This notice was not served on the Plaintiff. The second named Defendant’s motion came before the

High Court on 12th February 2001 on which occasion the second named Defendant was represented by Counsel and it was ordered

that the order of 11th March 1999 as against the second named Defendant be discharged.

On 14th February 2001 the Plaintiff’s solicitors wrote to Ms Greene seeking consent to late delivery of a statement of claim, which

consent was refused, and on 8th May 2001 a motion seeking an order for extension of time was brought by the Defendants before the

Deputy Master. The Deputy Master refused to extend the time, and the Plaintiff appealed this refusal to the High Court, which Court

on 25th June 2001 set aside the order of the Deputy Master and extended the time for delivery of a statement of claim for a period of

one week. The second and third named Defendants have appealed that decision to this Court.

The Plaintiff has sought to justify its failure to serve a statement of claim on the basis as set out at paragraph 16 of the affidavit of

Michael Farrell that:-

“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.”

In his ex tempore judgment in the High Court Smyth J severely criticised the actions of the second and third named Defendants in

relation to their appearances and commented that “they were playing ducks and drakes”. He clearly took the view that the behaviour

of the Defendants sufficiently excused the failure to file a statement of claim. While it is of course the privilege of a litigant to

conduct some or all of his case personally, and to instruct and withdraw instructions to a solicitor as he thinks fit, nevertheless the

actions of the Defendants and their solicitor, and the Defendants’ solicitor’s complete failure to comply with the rules of Court and

failure to serve any of the purported notices, which were filed by her appear to me to have been calculated to confuse. Indeed, on a

strict reading of the Rules, neither solicitor nor Counsel on behalf of the second and third named Defendants are properly before the

Court, and certainly there appears to have been no appearance ever entered on behalf of the third named Defendant. In my view, the

criticisms of the second and third named Defendants by Smyth J were fully justified.

It has been urged on the Court on behalf of the Defendants that, as the Plaintiff is seeking relief from the Court, there is an onus on

the Plaintiff to place on affidavit an explanation of the failure to deliver a statement of claim, and that the Plaintiff must put before

the Court sufficient material to justify the exercise of the Court’s jurisdiction. On the other hand, the Plaintiff argues that the

authorities in fact support the proposition that the onus is on the party opposing the extension of time. They point to the well known

case of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 499 where the principles were set out in the judgment of Hamilton CJ at

page 475 where he said:-

“The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:-

A The Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of

justice requires them to do so;

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 or against the proceeding of the case.”

Similarly in Rainsford v The Mayor Alderman and Burgesses of the City of Limerick [1995] 2 ILRM 561 Finlay P said at page 567:-

“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.”

The present case differs from both of these cases, however, in that what is before the Court is purely a motion seeking an extension

of time to serve the statement of claim. While such a motion was also before the Court in Rainsford, there was also a cross-appeal in

that case seeking an order striking out the proceedings for want of prosecution. In the Primor case the situation was wholly different,

in that that pleadings had in fact been closed, and there was no question of extending time. It was purely an application on behalf of

the defendants to strike out the proceedings for want of prosecution. In such circumstances, the defendant is actively seeking the

termination of the proceedings, and insofar as there may be an onus of proof, it is logical that that onus should be on the defendant.

In the present case the Defendants are not seeking any relief from the Court, but are simply opposing an application by the Plaintiff

for a discretionary remedy which it is open to the Court to grant.

I think that perhaps the phrase “onus of proof” is an unfortunate one where a discretionary remedy is being sought. This motion is not

one in which a plaintiff has to prove facts which, if successfully proved, will ensure a verdict in its favour. There are no facts in

dispute in this motion. This is a case in which a plaintiff puts such facts as it thinks fit before the Court, and the Court then

considers, not whether the plaintiff has proved its case, but whether as a matter of discretion the order sought by the plaintiff should

be granted. I prefer the reasoning of the Northern Ireland High Court in Hughes v Hughes [1990] NI 295 where Carswell J said at page

498:-

“In Smith v Secretary of State for the Environment an appeal against a planning enforcement notice was filed 27 days after

the expiry of the time of 28 days prescribed by the rules for an appeal to the High Court. Some months later the applicant’s

solicitors made an application to extend the time. The grounding affidavit sworn by the applicant’s solicitor gave a recital of

the passage of time divided into a series of periods which elapsed between the taking of various preparatory steps by the

applicant’s solicitors and counsel. No explanation at all was given in the affidavit for allowing the matter to run out of time, and

the court was left unaware whether the solicitor knew that there was a time limit, or if so what it was, or whether his clients

did not give him firm instructions to proceed until too late, or what the reason was for the delay. Glidewell LJ said in the

course of his judgment:

‘Accordingly in my view the first and essential criterion for the exercise of discretion to extend time is not satisfied in

this case. There is no explanation and therefore there is no material upon which the learned Judge could have exercised

his discretion to extend the time.’

The Court of Appeal therefore held that it was not necessary to go into the other arguments about the weighing of the several

factors or the balancing of prejudice.

If Glidewell LJ intended to say in this passage that where no reason or excuse is given for the delay the Court cannot exercise

its discretion in his favour, then I should have some difficulty in accepting the proposition in such a bald form. It may be noted

that in Ratnam v Cumarasamy no material of any kind upon which the court could weigh any factors for and against the

application was placed before the court. I doubt therefore whether it would be right to rely upon Lord Guest’s remarks in that

case as authority for the proposition that an application is ruled out in limine if no explanation for the delay is given, even

though there is other material from which the court may draw conclusions about other factors.”

In fact in this case an explanation of sorts was given by the Plaintiff in paragraph sixteen of the Plaintiff’s solicitors affidavit, which is

quoted above. It is, in effect, seeking to blame the delay on the actions of the Defendants themselves, and clearly the behaviour of

the Defendants is relevant to the exercise of the Court’s discretion. Whether it is sufficient to show that the delay has been

excusable must be open to question, particularly in the light of the fact that this motion was not brought until the interlocutory

injunction had been discharged by order of the Court. However, in my view that is not the basic issue in this case. The approach

which the Court should take was set out in a judgment of Henchy J in O’Domhnaill v Merrick [1984] IR 151 at page 157 where he

said:-

“Whether the delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not

likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the

defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the

problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her delayed claim

against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be

expected to defend.”

In all the authorities which have been cited the Court has examined the nature of the claim which the Plaintiff has sought to put

forward as a part of the particular circumstances of each case. In the Primor case O’Flaherty J at page 521 referred to the fact that

the plaintiff had little hope of success in making out any plausible case in negligence. In the Rainsford case Finlay P at page 570

said:-

“What the defendants there seek to have dismissed is no mere trivial or ordinary action but one which is probably vital to the

future material prospects of the plaintiff. No action brought by a litigant to the courts should be considered unimportant or

trivial if a bona fide cause of action exists. In relation, however, to the exercise of a discretion as to where the balance of

justice may lie it seems to me that a material consideration must be the gravity of the claim concerned and the

consequences of its dismissal upon the injured claimants.”

In Daly v Limerick Corporation (Supreme Court unreported 7th March 2002) Keane CJ said at page 3 of the unreported judgment:-

“It seems to me and I think all the authorities bear this out that in exercising a judgment in that regard, the court has to

consider what sort of case they are dealing with and look at the case as a whole and in that context one inevitably has to ask

oneself what exactly the plaintiff’s case is in these proceedings. Although it was clothed at one stage as a claim for personal

injuries, we are not dealing with a case such as arose in O’Domhnaill v Merrick or Rainsford v Limerick Corporation or Toal v

Duignan, in which, unarguably, the plaintiff had suffered serious personal injuries in circumstances where one might perceive

possible liability on the part of the defendants. That is clearly a factor which weighs with the court before it ultimately shuts

out somebody from their constitional right of access to the courts. In saying that, I am not saying, of course, that this is

confined to personal injury cases, although as it happens some of the leading cases have been personal injuries cases. When

one looks at this case as pleaded, it appears to be a case in which the plaintiff is essentially claiming that the defendants,

Limerick Corporation, failed to exercise in his favour the statutory power, which they undoubtedly enjoy or enjoyed at all

events at the relevant times for the purpose of these proceedings, to make a grant of compensation to him, having regard to

the fact that he had had to leave this premises as a result of their dangerous and dilapidated state.”

He then went on to examine the strength of that claim, and also whether the claim by its nature ought to have been taken by way of

judicial review.

It is quite clear, therefore, from the authorities that in applications to extend the time for service of a statement of claim, the Court

ought to examine the nature of the claim being made by the plaintiff. In the present case, the plenary summons merely claims

damages for trespass and an injunction. In fact, pursuant to the order of the High Court, the Plaintiff filed a statement of claim before

the notice of appeal was lodged, and that statement of claim is now before the Court. The statement of claim sets out certain events

which it is alleged took place on 6th March 1999 whereby certain persons who are members and/or associates of the first named

Defendant are alleged to have committed acts of trespass. While it is alleged that the fourth named Defendant was one of those

persons, there is no allegation that either the second named Defendant or the third named Defendant were present on this occasion

or committed any of the acts complained of. Counsel for the Respondent has now conceded that the second and third named

Defendants were not present on the occasion complained of, and did not trespass on the Plaintiff’s property. In the light of this, it is

not surprising that the interlocutory injunction against the second named Defendant was lifted, and one must wonder whether, if the

second and third named Defendants had been represented at the interlocutory hearing, the injunction would ever have been granted.

It now transpires that the real case sought to be made against the second and third named Defendants is that, as officers of the first

named Defendant, in some way they directed the events of 6th March 1999, and conspired with others to have the trespass take

place. It is now over four years since the plenary summons was issued in these proceedings, and this case has never been made on

paper by the Plaintiff. Neither the plenary summons nor the statement of claim makes any claim for damages for conspiracy, nor does

the grounding affidavit of the Plaintiff’s solicitor in this motion.

The Plaintiff argues that this could be remedied by an amendment to the statement of claim under Order 28 Rule 2, and that in fact it

would be entitled as of right to make such an amendment, as the Defendants have not entered any valid appearance. This may well

be so, but it is to ignore Order 28 Rule 4, which allows the opposing party in such circumstances to apply to the Court to disallow the

amendments. I think it is most unlikely that any Court would allow such amendments in the present case after this length of time.

Be that at it may, what is now before this Court is an application to extend time to serve a statement of claim which on the face of it

does not disclose any cause of action against the Defendants. Even if the delay in serving the statement of claim is excusable in that

it is due to the actions of the Defendants, quite clearly the Court could not allow an extension of time to serve a statement of claim

which does not disclose a cause of action, and in my view, even if there is a right to amend the statement of claim under Order 28

Rule 2, the Court in its discretion ought not to extend the time so as to allow the Plaintiff to serve the statement of claim that is now

proposed on the basis that it may be allowed to mend its hand later.

I should comment on one of the findings of Finlay P in the Rainsford case where he said at page 567:-

“Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the

proceedings.”

While that maybe a comment which is valid in the context of an application to dismiss proceedings, in my view it has no application

whatever to an application such as the present to extend the time for service of a statement of claim.

Accordingly, I would allow this appeal and refuse the application to extend time.