Supreme Court dismisses appeal to set aside default judgment due to excessive 21-month delay by defendant's solicitor.

THE SUPREME COURT

Kearns P.

Murray J.

Fennelly J.

[S.C. No. 066 of 2009]

BETWEEN

JOSEPH McGUINN

PLAINTIFF/RESPONDENT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

JUDGMENT of Kearns P. delivered the 28th day of July, 2011.

This case addresses the principles applicable where a defendant moves to set aside a judgment obtained in default of defence.

Order 27, Rule 14(2) of the Rules of the Superior Courts (as substituted by S.I. 63/2004) provides:-

“Any judgment by default, whether under this Order or any other of these Rules, may be set aside by the Court upon

such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default

special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has

been set down under rule 8, such setting down may be dealt with by the Court in the same way as if a judgment by

default had been signed when the case was set down.”.

BACKGROUND

The plaintiff in these proceedings is a scaffolding contractor who resides in Castlebar, County Mayo. He alleges that on 8th April, 2003

five members of An Garda Siochana came to his place of employment while he was working there. He alleges that the Garda officers in

question pushed his employer, Michael Hopkins, to one side and that one of the officers then placed a gun to his head, spun him

around and pinned him to a wall.

He alleges that he was then informed that he was being arrested under s.30 of the Offences Against the State Act 1939 in relation to

a firearms offence and further that he was a suspect in an incident which occurred the previous day in Castlebar. The plaintiff and his

employer denied the allegations but the Gardai nonetheless handcuffed the plaintiff and placed him in the rear of a garda patrol car.

He was then driven to another location before being driven to his place of residence. It is alleged that the plaintiff was there required

to make a telephone call to a certain third party, following which a direction was given that the plaintiff be taken to the Garda Station

in Castlebar. He was detained there for approximately two and a half hours. In addition to his claim arising out of these alleged

events, the plaintiff further alleges a second instance of garda harassment on 6th March, 2004. In the proceedings brought by him

herein the plaintiff has claimed damages for unlawful arrest, false imprisonment and slander.

For their part, the defendants have denied that the plaintiff was wrongfully or recklessly arrested or that any violence or force was

inflicted on the plaintiff. In particular it is denied that a gun was placed to the plaintiff’s head. The Gardai had a warrant to search the

plaintiff’s property on the date in question and contend that the plaintiff had no objection to the Gardai searching his flat and further

contend that the plaintiff directed a member of An Garda Siochana to the location of his keys.

Proceedings by Plenary Summons were commenced on 12th April, 2005. An appearance thereto was entered on behalf of the

defendants on 17th November, 2005. A Statement of Claim was delivered on 8th February, 2006. No notice for particulars or defence

having thereafter been delivered by the defendants, the plaintiff’s solicitor wrote to the Chief State Solicitor’s office no less than six

times during the course of 2006 requesting a defence before ultimately issuing a Motion for Judgment in Default of Defence returnable

for 19th February, 2007. It was agreed between the solicitors for the plaintiff and the defendants that the motion would be struck

out on consent with an order extending time to the defendants to deliver their defence within three weeks. However, it would appear

that, notwithstanding this agreement, the motion was in fact adjourned for three weeks and reappeared in the Court Motion list on

12th March, 2007.

On that date there was no appearance on behalf of the defendant and the learned High Court judge (Herbert J.) made an “Unless

Order”, that is to say a conditional order providing that that judgment in default of defence would be granted unless a defence was

delivered by 21st March, 2009. The defendants were thus given a further eight days to file their defence. The plaintiff’s solicitor

informed the Chief State Solicitor of this development by letter dated 13th March, 2007. The solicitor for the defendant acknowledged

the position by letter dated 14th March, 2007 and in that letter Mr. Sean Murray, the solicitor in the Chief State Solicitor’s office who

was dealing with the matter, confirmed that the defence would issue to the plaintiff’s solicitors by fax on 21st March, 2007 and by

post thereafter.

The defence was not filed by 21st March, 2007 and on 28th March, 2007 the plaintiff’s solicitors warned that they were proceeding to

have the order perfected. By letter dated 28th March, 2007 the plaintiff’s solicitor wrote to Mr. Murray to that effect.

A defence was eventually furnished to the plaintiff’s solicitors on 20th April, 2007 but was returned to the Chief State Solicitor’s office

on 26th April, 2007 with a cover letter indicating that the plaintiff’s solicitor was not in a position to accept same. The letter returning

the defence set out in some detail the list of opportunities afforded to the defendants to file the defence following the service of the

Statement of Claim in February, 2006.

In May, 2007, the solicitor for the defendants indicated that his clients intended to bring a motion to set aside the order and

judgment at the earliest opportunity. However, nothing further occurred. On 11th July, 2007 the plaintiff’s solicitors furnished a copy

of the perfected Order of Herbert J. to the State Chief Solicitor’s office and advised that, as per the terms of the Order, the plaintiff

was proceeding to have the matter listed for hearing. A year later, on 27th May, 2008, the plaintiff’s solicitor wrote to the solicitor for

the defendants indicating their intention to set the matter down for trial. On 12th June, 2008 the solicitor for the defendants replied

indicating that he was taking his clients instructions. On 20th June, 2008, and again on 15th July, 2008, the plaintiff’s solicitors wrote

warning that a Notice of Intention to Proceed would be served if there was no response from the defendant. No reply was received to

either letter. Notice of Intention to Proceed was then served on 30th July, 2008.

Notice of Trial was served on 24th September, 2008 and on 21st October, 2008 the plaintiff’s solicitor wrote to the solicitor for the

defendants enclosing all up to date medical reports in respect of the plaintiff and a schedule of witnesses intended to be called by the

plaintiff at the trial of the action. It was further indicated that counsel would be attending the Dublin Personal Injuries List on 29th

October, 2008 to seek a date for hearing. At that juncture, the solicitor for the defendants contacted the plaintiff’s solicitor by

telephone with a request to delay the application until after 3rd December, 2008 to afford him an opportunity to consider the medical

reports which had been filed on behalf of the plaintiff and, if necessary, to have the plaintiff medically examined by the defendants’

medical expert. While the plaintiff’s solicitors agreed to this course, nothing further was heard from the defendants and on 9th

December, 2008 the plaintiff’s solicitor wrote again indicating that counsel for the plaintiff would seek a date for hearing in late

January, 2009 and would be making the application on 10th December, 2008.

At that juncture a further period was sought by the solicitor for the defendants to arrange to have the plaintiff medically examined

but, having regard to the delays already encountered in the matter, the plaintiff’s solicitor decided to proceed with the application

and seek to have the matter called on. On 10th December, 2008 the plaintiff’s solicitor received correspondence from the solicitor for

the defendants dated 9th December, 2008 indicating that he would be making an application by way of Motion on Notice seeking to

set aside the Order of Mr. Justice Herbert dated 12th March, 2007.

The solicitor for the defendants wrote a further letter on 10th December, 2008 indicating that the plaintiff was to be examined by Dr.

Patricia Casey, Professor of Psychiatry at the Mater Hospital, on 11th February, 2009. Counsel for the plaintiff attended before Quirke

J. on 10th December, 2008 seeking a date for hearing in late February, 2009 in light of the medical appointment arranged for 11th

February, 2009.

On 22nd December, 2008 a motion to set aside the judgment was brought by the solicitors for the defendants and made returnable

for 12th January, 2009. That motion was ultimately heard and decided by the High Court (Cooke J.) on 9th February, 2009.

In the affidavit grounding that application, Mr. Murray stated that it had been the defendants’ intentions at all times to fully contest

the action. Exhibited in the affidavit was a copy of the defence which it had been hoped to file. The only ground relied upon by Mr.

Murray by way of special circumstance was the fact that the original motion for judgment was not dealt with in the manner which had

been agreed between the solicitors in that, instead of being struck out, the motion was adjourned in circumstances where three

weeks later a conditional order for judgment in default of defence was made instead. Mr. Murray further deposed to his belief that

there were good grounds upon which to defend the action. He further contended that the defendants would suffer grave prejudice if

the Order was not set aside.

However, having heard the arguments of both sides, Cooke J. refused the relief sought by the defendants and directed that the costs

of the motion be awarded to the plaintiff.

Following the making and perfecting of his Order on 10th February, 2009, the defendants served a Notice of Appeal on the solicitor for

the plaintiff on 3rd March, 2009, the last day of the time allowed for the making of such an appeal. In the interim, the plaintiff’s

solicitor had written to the defendants’ solicitor on 18th February, 2009 indicating that counsel for the plaintiff would be applying for a

date for hearing on 4th March, 2009. On that date Quirke J. having heard that the motion to set aside was refused listed the case for

hearing on 13th May, 2009.

The solicitor for the defendants then sent a letter for voluntary discovery to the plaintiff’s solicitor on 8th April, 2009. The request

was based on the report of Dr. Casey of the examination of the plaintiff on 11th February, 2009 but no copy of the report was

furnished to the plaintiff’s solicitor until 11th May, 2009. A further letter for voluntary discovery was sent on 17th April, 2009 which

contained further categories of documentation sought by the defendants. Both requests for voluntary discovery were outside the

time prescribed by the Rules of the Superior Courts.

On 13th May, 2009 counsel for the defendants made an application for an adjournment of the hearing due to the fact that his medical

expert, Dr. Casey, would not be available on 14th May, 2009 should the matter run over to that date. On that occasion the issue as

to whether or not the defendants should be allowed call medical evidence in relation to the claim arose given that there was no

defence filed on their behalf. Quirke J. adjourned the hearing of the case, firstly to 26th May, 2009, and thereafter to 14th July, 2009

with priority.

For the purposes of the appeal to this Court, Mr. Sean Murray has sworn a further affidavit which addresses in somewhat greater

detail the reasons for the hitherto unexplained delay in addressing the various procedural steps required to be taken in the office of

the Chief State Solicitor. He very candidly and fairly acknowledges that there has been excessive delay, consisting of a delay from

21st March, 2007 (being the date upon which judgment as ordered by Herbert J. came into effect) until 22nd December, 2008 (the

date of issue of the Notice of Motion to set aside the judgment), being a delay in the order of twenty-one months. He accepts full

responsibility for this delay and states:-

“The only explanation I can offer this honourable court for such delay is that same was due to a combination of pressure

of work and oversight on my part and I accept that this does not excuse such a significant period of delay in the

circumstances.”

At a later point in his affidavit, Mr. Murray notes that when the matter was listed for hearing in the High Court personal injuries list on

13th May 2009, the plaintiff’s legal advisers in accordance with their letter of 24th April, 2009 argued that the defendants ought not

to be allowed call any evidence at all in the case. Quirke J., however, indicated that in his view the defendants were entitled to call

evidence in relation to issues affecting quantum and the assessment of damages.

Subsequent to the adjournment of the hearing on 13th May, 2009, Mr. Murray deposes that as a result of representations made by

the first named defendant, a different senior counsel was retained in the case and that that senior counsel had a consultation with

the relevant garda witnesses involved in the circumstances of both incidents the subject matter of the proceedings. Those witnesses

indicated at a consultation held on 21st May, 2009 their serious concerns about the fact that judgment in default of defence had

been obtained and that the absence of a defence amounted in effect to an admission of liability on their part. Mr. Murray deposed to

the fact that the members of the Gardai concerned have communicated to their own legal advisers their concerns that failure to

defend the proceedings would damage their reputation as members of An Garda Siochana in the locality where they serve.

Mr. Murray further deposes that if the evidence available to the defendants from the Gardai (i.e. in respect of liability) is allowed in

evidence, and if that evidence is accepted, that the defendants have a good defence to the case. Any suggestion that the delay

might have prejudiced the plaintiff could be overcome by the defendants’ willingness that the case be tried on 14th July, 2009

whereas the defendants would suffer substantial prejudice if deprived of the entitlement to defend the action.

JUDGMENT OF THE HIGH COURT

As indicated above, the High Court (Cooke J.) determined this motion by means of an ex tempore ruling delivered on 9th February,

2009.

The learned High Court judge considered that there had been inordinate and inexcusable delay by the defendants in moving to set

aside the judgment obtained on 12th March, 2007 and that, having regard in particular to the forbearance exhibited by the plaintiff’s

solicitors in issuing warnings of intention to proceed in the period from May to October, 2008, it would be inconsistent with doing

justice between the parties to grant the defendants motion. In particular the learned High Court judge noted:-

“In the court’s view a defendant who finds that judgment in default of defence has been recovered against him has a

duty to move promptly to set aside that judgment if liability is to be contested.”

While noting there may have been a misunderstanding as to the striking out or adjournment of the original motion for judgment, the

defendants were clearly aware of the obligation to recover its position by a delivery of a defence on numerous occasions. They had

promised to do so within the eight days provided for in the court order and as promised in their letter of 14th March, 2007. The

learned High Court judge also stated:-

“It can hardly be doubted that if the motion had been brought at any time during 2007 it would have stood a reasonable

chance of being allowed. That the Chief State Solicitor was alive to the need to take such a step is evident from the

correspondence at the beginning of May, 2007. Instead, nothing was done throughout 2007 and it was the plaintiff’s

solicitor who reactivated matters in May of the following year.”

The learned trial judge further noted that even when the plaintiff’s solicitor effectively offered opportunities to the Chief State

Solicitor’s office to mend its hand, nothing was done. Even when the plaintiff’s solicitor began preparations for the hearing, the Chief

State Solicitor’s office did not move to assert any intention to contest liability but effectively acquiesced in the steps taken in the

trial preparations being undertaken by the plaintiff. The defence merely sought time to examine the medical reports and conduct their

own medical examination. Cooke J. concluded his ruling as follows:-

“Finally, the court was heavily influenced in rejecting the motion by the complete absence from the defendants’

grounding affidavit of any explanation or excuse for the failure to take any step towards re-asserting an intention to

contest liability between April, 2007 and December, 2008. Such delay in the circumstances was inordinate and unexcused

and in the absence of any mitigating explanation the court considered that it had no evidential basis upon which it might

have been inclined in the defendants favour on the motion.”

SUBMISSIONS ON APPEAL

Mr. Hugh Mohan, senior counsel on behalf of the defendants, submitted that he had satisfied the onus of proof necessary to obtain

relief by demonstrating that there had been “special circumstances” as required by Order 27, Rule 14(2) of the Rules of the Superior

Courts. Those special circumstances consisted of the misunderstanding between the solicitors whereby the original motion for

judgment was not struck out, but instead was adjourned for three weeks following which an “Unless Order” was made in the plaintiff’s

favour. He submitted that an “Unless Order” was a very serious order to make and one not usually made on a first motion for

judgment. Furthermore, the defendants were in a position to deliver their defence within a relatively short period of time after the

default judgment became effective. There was thus, he submitted, no good reason why the court should not exercise its discretion in

favour of the defendants.

He submitted that the learned trial judge was in error in holding that there was “an overriding obligation” on the defendants to move

promptly to set aside the judgment and that their rights and entitlements were lost on account of their delay in applying to the court.

No such requirement was contained in the relevant Rule and, he submitted, the learned trial judge had fettered his discretion by

reading the Rule in that particular manner. In support, Mr. Mohan invoked the dicta of Lord Atkin in Evans v. Bartlam [1937] A.C. 473

where he adverted to the wide discretionary power given to a judge to set aside a default judgment. Lord Atkin had noted (at

p.480):-

“The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One

is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant

must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is

another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed

to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously

the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court

will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside

who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of

their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or

by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by

a failure to follow any of the rules of procedure.

But in any case in my opinion the Court does not, and I doubt whether it can, lay down rigid rules which deprive it of

jurisdiction.”

Mr. Mohan also cited in support the principles enunciated by Sir Roger Ormrod in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping

Co. Inc. [1986] 2 Lloyds in the following manner:-

“(i) A judgment signed in default is a regular judgment from which, subject to (ii) below, the plaintiff derives rights of

property;

(ii) The Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms

“unconditional” and the court should not “lay down rigid rules which deprive it of jurisdiction” (per Lord Atkin at p.486);

(iii) The purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed

automatically on default;

(iv) The primary consideration is whether the defendant “has merits to which the court should pay heed” (per Lord

Wright at p.489) not as a rule of law but as a matter of common sense, since there is no point in setting aside a

judgment if the defendant has no defence and if he has shown “merits” …;

(v) Again as a matter of common sense, thought not making it a condition precedent, the court will take into account

the explanation as to how it came about that the defendant … found himself bound by a judgment regularly obtained to

which he could have set up some serious defence.”

Mr. Mohan further submitted that by its judgment in Croke v. Waterford Crystal Limited and Another [2005] 2 I.R. 383 this court had

emphasised, albeit in the context of an application to amend proceedings, the importance of having the real issues between the

parties determined at trial.

Mr. Mohan argued that the court should engage in a two stage process. Firstly, the general rules which apply to Order 13, Rule 11 of

the Rules of the Superior Courts and which applied to Order 27, Rule 14 prior to the 2004 amendment thereof should be considered.

While Order 13, Rule 11 refers specifically to setting aside a judgment where there has been no appearance, the general principle that

a court may set aside or vary a judgment “upon such terms as may be just” should still inform the approach of the court to the

defendants’ application in this case. The second stage of the process required the court to consider whether the defendants have a

good defence on the merits. He submitted that the affidavit evidence established the fact of a good defence and facts concerning

the manner in which the judgment came to be granted which would justify the court in exercising its discretion to set aside the

judgment.

Mr. Conor Maguire, senior counsel for the plaintiff, contended that a complete sea change had been wrought by the amendment of

Order 27, Rule 14 in 2004. An applicant for relief must now demonstrate “special circumstances (to be recited in the Order) which

existed at the time of the default which both explain and justify the failure to deliver” the pleading in question.

That this was a substantial change in the existing rules which rendered redundant much of the pre-existing jurisprudence is evident

from decisions of this Court in the analogous situation of applications to dismiss for want of prosecution brought under Order 27, Rule

14 (1). In those cases a plaintiff is now also obliged to also demonstrate “special circumstances” to explain and justify his failure to

deliver a Statement of Claim. These principles had been enunciated in cases such as Gilroy v. Flynn [2005] 1 I.L.R.M. 290 and

Stephens v. Paul Flynn [2008] 4 I.R. 31. These decisions also took account of the passing into law of the European Convention on

Human Rights Act 2003. Article 6 of the European Convention for the Protection of Human Rights & Fundamental Freedoms specifically

provides that in the determination of civil rights, everyone is entitled to a fair and public hearing “within a reasonable time” by a court

or tribunal and that a plaintiff should not be shut out from obtaining his remedy where there has been inordinate delay in defending

the claim as found by the learned trial judge and as indeed was accepted by the defendants,.

Mr. Maguire submitted that the test is not whether the defendants have a defence with a reasonable prospect of success but rather

whether there were special circumstances at the time of the default which justify and explain the failure. Alternatively, if special

circumstances existed at the time of the failure to file a defence, the circumstances in question cease to be “special” when the

defendants allow twenty-one months to elapse before seeking to set aside a judgment.

In reply, Mr. Mohan, while acknowledging the applicability to his case of the jurisprudence in relation to claims to dismiss for want of

prosecution, submitted that the interests of justice required that he be allowed defend the proceedings. He contended that the

plaintiff had failed to establish or even allege that he had suffered any specific prejudice as a result of delay. Any penalty to be

suffered by the defence could be adequately reflected in an appropriate costs order.

DISCUSSION

The first matter I wish to consider is the specific terminology of Order 27, Rule 14(2) of the Rules of the Superior Courts in relation to

an application of this nature. The Rule specifically provides that a judgment obtained by default may be set aside by the court if the

court is satisfied that “at the time of the default special circumstances (to be recited in the Order) existed which explain and justify

the failure”. This particular form of wording is certainly open to the interpretation that the court may, or should, set aside a judgment

only where the special circumstances may be said to have arisen at the time of the default. However, any such approach to

interpretation would, in my view, be mistaken, illogical and absurd. For example, if at any time after judgment had been entered the

solicitor dealing with the matter on behalf of a defendant had become seriously ill or had lost his papers through fire or theft, such

special circumstances could not be said to have arisen at the time of the default and it would therefore follow that an applicant for

relief would be unable to satisfy the requirements of the Rule. That would be plainly absurd. Equally absurd, it seems to me, would be

to interpret the Rule as meaning that, once special circumstances at the time of the default were established, an applicant thereafter

had limitless time in which to apply to the court for relief. That would also be absurd, because plainly a special circumstance at one

particular time may cease to be such following a lengthy period of inactivity by or on behalf of the party entitled to rely on that

special circumstance.

Secondly, while counsel for the applicant accepted that the jurisprudence developed in relation to Order 27, Rule 14 (1) of the Rules

of the Superior Courts has direct relevance and application to the granting of relief under Order 27, Rule 14 (2), it seems to me that

the application to move expeditiously must be far greater on a party against whom a judgment has been entered than that which

devolves on a lethargic plaintiff to advance his proceedings. A judgment is a solemn order of the court and is usually final

notwithstanding that it may be subject to appeal. As noted in Halsburys Laws of England (4th Ed.) Vol 26 para 559:-

“Application to set aside a judgment or order in default of appearance or defence which is regular should be made as

soon as possible after it comes to the knowledge of the defendant.”

This is necessarily the case given that a judgment is conclusive as between the parties and their privies and is conclusive evidence

against all the world of its existence, date and legal consequences. While the Rules of the Superior Courts provide no time limit for the

making of an application to set aside, Order 30 Rule 1 of the Circuit Court Rules provides that such an application be made not later

than 10 days after the party against whom judgment has been given becomes aware of that fact. Order 30 Rule 2 provides that every

such application must “set forth clearly and briefly the reasons why the party applying did not deliver an appearance or did not

deliver a defence, as the case may be, the nature of the fraud, misrepresentation, surprise or mistake relied upon, and the grounds

of defence to the action in which the judgment was given”

Cordial’s Consolidated Circuit Court Rules (Practice and Procedure) (Round Hall 2001) at C 145 makes clear that where a party fails to

move within the 10 day period, the issue of the party’s delay will be a material factor in the judge’s exercise of his discretion.

Thirdly, I think it must be seen as fundamental to the Court’s approach in applications of this nature that the introduction of the

requirement to demonstrate “special circumstances (to be inserted in the Order)” significantly raises the threshold for an applicant

over any requirements which existed under the former Order 27, Rule 14. The amendment effected by S.I. 63/2004 can only be seen

as ushering in a new era where inordinate delays, which might have been countenanced in the past, should be eradicated from

modern legal culture. This is a view forcefully expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. 290 and by Clarke J. in the

High Court and by this Court in Stephens v. Paul Flynn [2008] 4 I.R. 31.

Fourthly, I think some consideration of the role and effect of the European Convention on Human Rights Act 2003 must inform the

Court’s approach to applications of this nature, be they under Order 27, Rule 14(1) or Rule 14(2).

It will be recalled that the preamble to the Act recites that the Act of 2003 is “an Act to enable further effect to be given, subject to

the Constitution, to certain provisions of the Convention for the Protection of Human Rights & Fundamental Freedoms”.

Section 2 of the Act of 2003 provides that:-

“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the

rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations

under the Convention provisions.”

Section 4 of the Act of 2003 contains the dual requirement that judicial notice “shall” be taken of the Convention provisions and of

any decision or judgment of the European Court of Human Rights. This section is the counterpart of s. 2 of the Human Rights Act

1998 in the U.K. which provides that a court in determining a question which has arisen in connection with a Convention right must

take into account, inter alia, judgments and decisions of the European Court of Human Rights. The phrase ‘judicial notice’ necessarily

involves having regard to the content of the Convention’s provisions, just as, for example, arises in the instance of the Civil Liability

(assessment of Hearing Injury) Act 1998 which requires that a court, in all proceedings claiming damages for personal injury arising

from a hearing injury, shall take judicial notice of the Report of an Expert Hearing Group and have regard to certain matters in the

Report when assessing damages. The weight to be attached to the material in respect of which the court is required to take judicial

notice remains, of course, a matter for the court.

I do not see the role of an Irish court therefore as being confined exclusively to s.2 of the Act of 2003. The stand alone provision

contained in s.4 provides that judicial notice “shall” be taken of the Convention provisions. Further, while every organ of the State is

obliged to perform its functions in a manner compatible with the State’s obligation under the Convention provisions, the idea that a

court, notwithstanding that it is excluded from the definition of organ of the State’’, could proceed on the basis of indifference to the

principles contained in the Convention, strikes me as a startling proposition indeed.

Article 6 of the European Convention specifically provides:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

As was noted by both parties to the appeal in Desmond v. MGN Limited (Unreported, Supreme Court, 15th October, 2008) this does

not mean that the Convention, even in the form in which it has been incorporated into Irish domestic law, is to be taken as providing

horizontal enforceable rights as between private litigants. Both parties in that case, however, accepted that, when exercising its

discretion under Order 27, the court must remain mindful of obligations imposed on it by the Convention given that those obligations

exist quite independently of the action or inaction of the parties to the litigation.

While I expressed the view in that case that the provisions of the Act of 2003 and the requirements of the Convention added a

further consideration to the list of factors which were enumerated in Rainsford v. Limerick Corporation [1995] 1 IRLM 561 and Primor

Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (a view not shared by my learned colleague, Geoghegan J.), I think it important to

record that in delivering judgment on behalf of the majority of the court in that case Macken J. expressly resiled from considering

whether the provisions of the Act or the Convention came into play on the basis that there was “ample extant Irish jurisprudence on

the matter without doing so”.

In repeating what I said in Desmond v. MGN Limited, I stress that I am not suggesting that the Convention is to be seen as having

any effect other than the specific sub-constitutional role assigned to it by the Act of 2003. Nor am I saying that the jurisprudence of

the European Court of Human Rights mandates that proceedings be struck out or dismissed for delay.

I do not therefore believe that the principles enunciated in the two great Irish cases of Rainsford and Primor respectively should be

seen as written in tablets of stone or as being incapable of further development in modern times where previously tolerated delays are

no longer seen as justifiable.

Finally, the decision of a court to grant or refuse relief in applications of this nature is ultimately a discretionary matter. I would

reiterate the views expressed by Lynch J. in Martin v. Moy Contractors (Unreported, Supreme Court, 11th February, 1999) in which

he stated at p.13:-

“The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided

that the High Court decision is within the limits of reasonable discretion this Court should not interfere with it. In this

case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally followed

from such reasoning and is also therefore clearly valid. There is accordingly no basis on which this court should interfere

with the judgment of the learned President …”

DECISION

In my view the applicant has clearly demonstrated that there were “special circumstances” at the time when judgment was obtained

in the High Court in this case such as to enable an application to set aside the judgment to be brought. The defendants’ solicitor was

clearly unaware that the Motion for Judgment, instead of being struck out, had been adjourned for three weeks. He was equally

unaware that an “Unless Order” had been made by Herbert J. until notified to that effect by the plaintiff’s solicitors. These were

clearly special circumstances, and I would be of the view that any application brought within a few weeks of discovering that

judgment had been obtained would undoubtedly have been successful. Such an application would have been brought promptly.

However, that is not what happened. It took an incredible period of twenty-one months for the defendants’ solicitor to bring the

present application under Order 27, Rule 14 of the Rules of the Superior Courts. This was not against a backdrop where the plaintiff

and his advisers remained inactive or indifferent to the progress of the litigation. On the contrary, both before and after judgment the

plaintiff’s solicitors repeatedly stressed their anxiety to move the proceedings forward as quickly as possible. This is most definitely

not a case where any blame can be laid at the door of the plaintiff or his legal advisers.

Mr. Murray, the solicitor dealing with this matter in the Chief State Solicitor’s office, has very honestly and admirably admitted that

the fault for the delay in this case was entirely his. Unfortunately, his affidavit does not detail what may have been perfectly

understandable reasons for the delay in question.

In seeking relief in these circumstances, the case law further demonstrates that some real defence on the merits must be shown to

exist. Beyond stating that the members of the Garda Siochana against whom allegations have been made are both apprehensive and

indignant that a judgment which affects their reputations remains intact, the affidavit does not go on to specify, other than through

denials, what the details of the defendants’ case might be.

It seems clear to me that the interests of justice require that a plaintiff be entitled to rely on a default judgment when no challenge is

brought within a reasonable time to the entry of such judgment. I would stress again that the onus and duty falling on a defendant in

these circumstances must be seen as far greater than that which devolves on a plaintiff who has been lethargic or inactive in

pursuing his remedy. I would dismiss the appeal.