Supreme Court allows appeal granting one week to file claim despite gross delay in personal injury action.

[2004] IESC 98

THE SUPREME COURT

28/03

Denham J.

Hardiman J.

Fennelly J.

Between:

MARK JOHN GILROY

Plaintiff/Appellant

and

MARY FLYNN

Defendant/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 3rd day of December, 2004.

1. This is the plaintiff’s appeal against the order of the High Court (Johnson J.), perfected on the 20th January, 2003 whereby the

learned trial judge dismissed the plaintiff’s appeal from the order of the Master of the 29th June, 2002 striking out the plaintiff’s claim

for want of prosecution.

2. This is a personal injuries action. The accident giving rise to the litigation happened on the 15th September, 1997. Despite this, no

statement of claim has yet been delivered, although the plaintiff says that one has existed in draft form since November, 2002. Even

that, however, is more than five years after the accident.

3. The chronology of the case tells its own unfortunate tale of a certain manner of prosecuting personal injuries actions in particular

which, as Mr. Gerard Clarke S.C. counsel for the plaintiff correctly contended, was not uncommon.

4. The plaintiff issued his proceedings on the 18th August, 2000 about two years and eleven months after the accident. He did not

however then proceed to serve the defendant but wrote to a firm who he thought to be the defendant’s insurers giving them, for the

first time, an intimation of his claim. He served the proceedings on the 30th January, 2001. A statement of claim was sought by the

defendant by her solicitor’s letter dated the 6th February, 2001. This request was repeated on the 8th February, 2001 and the 28th

August, 2001. The latter letter warned of an intention to bring a motion against the plaintiff. On the 30th October, 2001 the plaintiff’s

solicitors broke his silence by stating that they were awaiting an MRI scan. On the 30th November, 2001 the Master of the High Court

extended the time for delivery of a statement of claim by three weeks. This was done on consent, without any suggestion on the part

of the plaintiff that the time was inadequate. The correspondence then goes into what one might call its second phase.

5. On the 11th December, 2001 the defendant again demanded delivery of a statement of claim. On the 17th January, 2002 the

plaintiff’s solicitor said that he was awaiting “an addendum” to his medical adviser’s report. On the following day the defendant’s

solicitor urged him to file his statement of claim and “make any necessary amendments that arise when up-to-date medicals come to

hand”. He said he was insisting on delivery of the statement of claim within seven days. By a further letter of the 28th January, 2002

the defendant’s solicitor threatened a further motion. On the 11th February, 2002 the plaintiff’s solicitor assured him that “you will get

a statement of claim from us shortly”.

6. By letter of the 12th February the defendant again demanded a statement of claim and threatened a motion. On the 29th April he

wrote again pointing that he had no response to the previous letter and that he was now issuing a further motion. On the 27th June

the Master of the High Court dismissed the plaintiff’s claim for want of prosecution with costs to the defendant.

7. The plaintiff appealed this order to the High Court and it was affirmed on the 13th January, 2003. The plaintiff appealed again to

this Court. In October, 2003 the Books of Appeal appear to have been outstanding because the defendant put the plaintiff on notice

that he would bring a motion to dismiss his appeal for want of prosecution unless the plaintiff “made efforts” to have the appeal dealt

with. The appeal was subsequently certified and listed for hearing on the 29th October, 2004.

8. It is fair to say that the plaintiff has been dilatory in a high degree. Indeed, it was not contested that he had been guilty of

inordinate delay and it was not seriously contested that the delay was inexcusable. It was however urged that the delay was not

gross by the standards of actual practice in these matters and that, in any event, the interests of justice required that the matter

proceed. Mr. Clarke S.C. also relied heavily on an assertion that the case will proceed on an assessment only basis: he derived this

information from the fact that the owner of the vehicle had already been paid his damages by or on behalf of the defendant. Mr.

Clarke’s assertions in this regard were not contradicted.

9. Mr. Clarke relied principally on the judgment of the High Court in Rainsford v. Limerick Corporation [1995] 2 ILRM 561. In particular

it was submitted, on the authority of this case, that even assuming or conceding the plaintiff’s delay to be both inordinate and

inexcusable, the Court must still proceed to exercise a discretion as to whether, on the facts, the “balance of justice” is in favour, or

against, the continuance of the case. In this regard, the gravity of the claim and the consequence of dismissal for the claimant is a

material consideration. Also relevant, according, to the judgment of Finlay P. (as he then was) is the extent of the litigant’s personal,

as opposed to vicarious, blameworthiness for the delay.

10. Finlay P. eventually exercised his discretion in favour of the plaintiff in Rainsford on the basis that “the balance of justice is in

favour of permitting this action to proceed and that the chances of a major injustice being done to the plaintiff were the action now

to be dismissed is significantly greater than the chance that a major injustice would be done to the defendants by allowing to

proceed”.

Decision.

11. It is important to make the point that there have been significant developments in this area since the decision of the High Court in

Rainsford or in Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459. By statutory instrument 63 of 2004, Order 27 of the Rules of

the Superior Courts has been significantly amended in particular by the following provision:

(1) If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that

purpose, the defendant may, subject to the provision of rule 1A, at the expiration of that time apply to the Court to

dismiss the action, with costs, for want of prosecution; and on the hearing of the first such application, the Court may

order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just;

and on the hearing of any subsequent application, the Court shall order the action to be dismissed as aforesaid, unless

the Court is satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure”.

12. Secondly, the Courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to

allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued. Thirdly,

following such cases as McMullen v. Ireland [ECHR 422 97/98. 29 July, 2004] and the European Convention on Human Rights Act,

2003 the Courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities,

civil or criminal, are determined within a reasonable time.

13. These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence

must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also

mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope.

The principles they enunciate may themselves be revisited in an appropriate case. In particular, the assumption that even grave delay

will not lead to the dismissal of an action if it is not on the part of the plaintiff personally, but of a professional adviser, may prove an

unreliable one.

14. In the circumstances of this case, and in particular because of the uncontradicted assertion that it will be an assessment, I would

allow the appeal, set aside the order of the High Court and substitute for it an order giving the plaintiff one week from today’s date to

file a statement of claim.

15. It hardly needs saying that any further delay in the taking of any step in this action in the context of the gross delay that has

already occurred will expose the plaintiff to a very serious risk of the dismissal of his action.