High Court of Ireland Decisions

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THE HIGH COURT

[2025] IEHC 240

[Record No. 2019/4371P]

BETWEEN

CHLOE DEEGAN

PLAINTIFF

AND

 

DARREN CAMPBELL

DEFENDANT

JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 22^nd day of April 2025.

 

1.           This is the plaintiff's application to extend time to appeal an order made by the Deputy Master on 10 October 2023 striking out the plaintiff's action for failure to make full and proper discovery in accordance with an order made by this Court on 19 July 2021. For the reasons set out below, I extend time for the appeal, and I allow the appeal to set aside the impugned order.

Application to extend time

2.           Order 38 of the Rules of the Superior Courts allows this Court to extend time and confers a discretion to be exercised upon such terms, if any, as the justice of the case might require. The leading case in the area is that of the Supreme Court in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] IR 170, where Lavery J. accepted counsel's submission that the following conditions were proper matters before the court to consider in determining whether time should be extended: -

(i) The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

(ii) He must show the existence of something like mistake (and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient).

(iii) He must establish that an arguable ground of appeal exists.

3.           Those conditions are to be considered in relation to all the circumstances of the case but it is always a matter for the discretion of the court whether to extend time, as pointed out by Irvine J. (as she was then) in Seniors Money Mortgages (Ireland) DAC v. Gately & McGovern (judgment of the Court of Appeal delivered 29 June 2018):-

"They are matters for the proper consideration of the court and the court's discretion remains a perfectly free one regardless of whether all or any of those criteria are established. However, they do guide the court."

This approach was cited with approval by O'Malley J. when that decision came before the Supreme Court which dismissed the appeal (Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3).

4.           I proceed to assess each of these three matters by reference to the facts of this case.

(i)         Intention to appeal

5.           The defendant challenges the plaintiff's case that she had an intention to appeal within the requisite time period of ten days committed for an appeal, because there are no averments by the plaintiff or the plaintiff's solicitor in any of many affidavits they each swore, confirming that the plaintiff had formed an intention to appeal within the requisite ten-day time limit. The defendant highlights the numerous affidavits sworn that do not make any such averment. The plaintiff relies on an affidavit sworn by the plaintiff on 7 December 2023 (though not served until many months later in May 2024) in which the plaintiff avers the following: -

(1)          That she was informed by her lead counsel that, on 10 October 2023, the Deputy Master struck out her proceedings.

(2)          That she believes she has a very strong case.

(3)          That she is entitled to justice in a hearing.

(4)          She criticises the approach adopted by the Deputy Master.

(5)          She says she has had injustice done to her.

(6)          She asks for the Deputy Master's order to be set aside, and the pleadings reinstated.

6.           The plaintiff's affidavit does evidence a desire and intention to appeal the decision of the Deputy Master but is silent on when that intention was formed. There is nothing in the affidavit to suggest it was, or was not, formed within the requisite ten-day period. Neither is there anything to confirm when the plaintiff was told by her lead counsel that the Deputy Master had struck out her proceedings.

7.           The plaintiff asked the Court to consider the affidavit evidence in light of steps taken by the plaintiff's then (and now sadly deceased) senior counsel who went into the High Court two days after the making of the Deputy Master's order, to make an ex parte application to lodge an appeal. Whilst the application was refused, the plaintiff relies on the fact of it having been made as evidence of the plaintiff having formed an intention to appeal within the ten days following the making of the impugned order. Counsel for the defendant acknowledges the application having been made, and in fact, is the only other person available to the Court who was also present when the application was made. Counsel for the defendant made it clear that, whilst she disputed the sufficiency of the plaintiff's evidence of having formulated the intention within the ten-day period, she did not question any of the plaintiff's then senior counsel's conduct and did not question the fact that he would have only made the application to lodge an appeal that he did, on the plaintiff's instruction.

8.           In those circumstances, and in spite of the absence of the averment one would expect to see in an application to extend time of the formulation of an intention to appeal within the ten-day period, the evidence of the plaintiff's then senior counsel having made that application to lodge an appeal two days after the impugned order was made, satisfies me that the plaintiff did form an intention to appeal within the required time after the making of the impugned order.

(ii)        Mistake

9.           Counsel for the defendant argued by reference to a careful perusal of the many affidavits filed, that there was no averment as to the existence of a mistake in relation to the delay in lodging the appeal. However, the appeal was filed late which in itself demonstrates that a mistake was made, i.e. filing the appeal many weeks after it should have been filed, despite the steps taken by counsel a mere two days after the making of the impugned order, to seek to appeal it.

10.        The plaintiff relied on her solicitor's averment as to the records which were supposed to be disclosed only having come into his possession after the making of the impugned order by the Deputy Master. The plaintiff's solicitor did refer, in general terms, to difficulties encountered as a result of the illness of the plaintiff's then senior counsel.  He also referred to the plaintiff's difficulties in confronting the events that give rise to her claim against the defendant. Counsel for the plaintiff submitted that the three criteria of Eire Continental are not of equal importance and that the arguable grounds was the most important.

11.        The case law is clear that the three criteria of Eire Continental are not a mandatory checklist but, rather, constitute guidance for the court on the exercise of its discretion. Therefore, whilst I accept the argument made by counsel for the defendant in relation to the absence of any clear account of why there was a delay in lodging this appeal and seeking an extension of time, that absence does not in itself preclude the order extending time from being made.

(iii)       Arguable case

12.        I am satisfied that the plaintiff has established an arguable case that she will succeed in her appeal. I accept that arguable is not sufficient where there has been a long delay as applies here, but I am satisfied that the plaintiff's case for turning the impugned order is a lot stronger than just arguable, as can be seen from my decision on the substantive appeal set out below.

13.        In determining whether it is in the interest of justice to allow the defendant the finality of the impugned order, and the public interest in having closure to litigation (as referred to by Irvine J. (as she was then) in Seniors Money), I must consider the prospect of prejudice to the defendant by the extension of time and to the plaintiff by a refusal to extend time. The plaintiff has made extremely serious allegations against the defendant arising from matters she alleges took place during her minority, which are fully denied by the defendant. Counsel for the defendant asserted a prejudice to the defendant from what she said might be the dimming of witnesses' memory. No such actual difficulties were identified or averred to by the defendant and so this seems to be largely speculative. In any event, the defendant has been aware of the making of the plaintiff's allegations since the proceedings were issued in 2019 and so I do not consider that he will suffer any irremediable prejudice in the running of his defence by allowing this appeal to be brought, particularly given that he would have been aware from two days after the making of the impugned order that the plaintiff wished to appeal it, albeit he was not aware of her having actioned that intention by way of a motion until some months later. The prejudice to the plaintiff of losing her opportunity to litigate her claim in its entirety outweighs any prejudice sustained by the defendant through having to deal with litigation that he would have viewed as having come to an end with the making of the impugned order of the Deputy Master.

14.        In those circumstances, I exercise my discretion to allow the extension of time for the plaintiff to appeal the impugned order.

Appeal from Order to Dismiss for Failure to Make Discovery

15.        Order 31, rule 21 provides as follows:-

"If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly."

The order is discretionary and not mandatory. There is ample case law confirming the limited and extreme circumstances in which proceedings should be struck out pursuant to this order and the need for the court to be satisfied that there has been "wilful default or negligence" before this should happen (as per Hamilton C.J. in Mercantile Credit Company v. Heelan [1998] 1 IR 81). Ryan J. (as he was then) in Green Pastures (Donegal) v. Aurivo Co-operative Society Ltd [2014] IEHC 209 identified a standard of "malicious determination to evade the obligation to make discovery", which was adopted and applied by Baker J. in Go2CapeVerde Ltd v. Paradise Beach [2014] IEHC 531.  Baker J. identified a frequently cited three-part process as follows:-

(a) First, the court must ask itself whether the failure was "deliberate and malicious";

(b) Second, even where that is the case, the court must go on to consider whether there is a substantial risk of injustice which cannot be remedied by the making of an order for further and better discovery and/or appropriate order for costs. She stated:

"What this means in essence is that the court must be satisfied that the risk of injustice has been or can be ameliorated, and that the omitted documentation has or will be furnished before trial."

(c)Third, the court must consider the degree of contrition shown by a party in default and whether that party has shown a willingness to remedy the omission. It is then a matter for the court to determine whether the omission can be dealt with in a way that furthers the interests of both parties.

16.        Counsel for the defendant focused on what she said was the opportunity afforded to the plaintiff to make further and better discovery and, in spite of that and a number of adjournments before the Deputy Master, the plaintiff continued to make inadequate discovery at the same as averring on affidavit that fulsome discovery had been made when it was or ought to have been obvious that it had not. The frustrations of the defendant and his solicitor is both apparent and understandable. Nevertheless, I do not agree that the plaintiff's less than urgent and somewhat unsatisfactory approach to making discovery can be equated to or viewed as more serious than the conduct of a party who has destroyed documentation that should have been made available for discovery, something that has grounded a number of unsuccessful applications to strike out proceedings. An order striking out proceedings is not intended to punish performance in making discovery.  Collins J. in McNulty v. Governor and Company of Bank of Ireland [2021] IECA 182 held:

"The object of the Rule 21 jurisdiction is to ensure that parties to litigation comply with orders for discovery rather than to punish defaulters. Therefore, if the default can be remedied, and a fair trial can be had, an order striking out a claim or defence will not be appropriate." (at para. 57).

17.        There are, as pointed out by Holland J. in Hurley v. Valero Energy (Ireland) Ltd [2022] IEHC 651, degrees of irremediable prejudice or remediation of prejudice and whether the party has been deprived of a fair trial which he said can be a matter of degree and extent. He pointed out the following as matters to be borne in mind:-

·         "the constitutional right of access to the Courts.

·         that this is a motion for final - not interlocutory - relief: that is, dismissing a plenary action on information less than likely to be available at trial on oral evidence and on, as in this case, affidavit evidence in the absence of cross-examination.

·         that, in consequence the trial judge is likely to be appreciably better placed than am I to discern where justice lies in consequence of the destruction of documents.

·          that if this motion fails that outcome will not constrict the trial judge in the exercise of his/her constitutional duty to ensure a fair trial." (at para. 79)

18.        The balancing exercise must also take account of the comments of Baker J. in Go2CapeVerde where she said the courts have a particular role in ensuring that discovery is fulsome, which must be balanced against the principle that justice is best achieved by a trial on oral evidence.

19.        The defendant points to the many inadequacies of the plaintiff's discovery to date and the various affidavits that have been sworn by the plaintiff and her solicitor. However, the question is whether the plaintiff's noncompliance with the discovery order made by consent on 19 July 2021, can be remedied and the confidence this Court can have in the plaintiff's ability or willingness to do so. It is significant that the plaintiff's solicitor has obtained documents that come within the discovery the plaintiff is required to make since the date on which the Deputy Master made the order dismissing the proceedings. The plaintiff's solicitor has averred to the difficulties he encountered in obtaining that documentation and the many phone calls he and the plaintiff's mother made to secure the documents. This has not been challenged by the defendant and no notice of intention to cross-examine the plaintiff's solicitor has been filed.

20.        The defendant says they have no confidence that any affidavit of discovery that might be prepared and sworn at this stage will be adequate because the plaintiff was already given that opportunity and did not take it. However, the current circumstances are very different to those that prevailed back then. I include in that the fact that the consequences of any non-compliance by the plaintiff with directions made by the Deputy Master were not communicated by the plaintiff's senior counsel to the plaintiff's solicitor as the hearing took place at a time shortly before he took ill.

21.        The plaintiff's solicitor says he now has the documents required for the affidavit of discovery and is confident that the discovery order can be complied with in full. If his confidence turns out to be misplaced, there remains the possibility of serious consequences for the plaintiff, including steps that may be taken by the trial judge or even in any further interlocutory application that may be made before the matter goes to trial.

22.        In conclusion, I do not consider the facts of this case and the shortcomings in making discovery that did occur merit, in all the circumstances, the making of the "drastic remedy" (Phonographic Performance (Ireland) Limited v. Cody [1998] 4 IR 504, per Keane J. at 510) of an order pursuant to O. 31, r. 21. I, therefore, allow the plaintiff's appeal and set aside the order of the Deputy Master striking out the plaintiff's proceedings. There must, however, be some consequences for the plaintiff of having put the defendant to the trouble of having to deal with the plaintiff's unsatisfactory approach to making discovery.  I will hear counsel further on possible final orders at 10am on 29 April next.

 

Counsel for the plaintiff: Ruaidhrí Giblin BL

Counsel for the defendant: Hayley O'Donnell BL