[New search]
[Printable RTF version]
[Help]
Collins v. Bus Atha Cliath [1999] IESC 69 (22nd October, 1999)
THE
SUPREME COURT
297/96
DENHAM
J
MURPHY
J
LYNCH
J
BETWEEN:
MARGARET
COLLINS
PLAINTIFF/APPELLANT
AND
BUS
ATHA CLIATH/ DUBLIN BUS AND BUS EIREANN
DEFENDANT/RESPONDENT
Judgment
of Murphy J delivered the 22nd Day of October 1999 [Nem. Diss.]
1. This
is an appeal from the Order of Mr Justice Flood made on the 21st day of
October, I 996, whereby it was ordered that:-
“This
action be dismissed for want of prosecution.”
2. The
matter has its origins in an accident which happened or is alleged to have
happened in the month of May 1985. The Defendants were notified of the
potential claim in June 1985 but proceedings were not instituted until the
plenary summons herein was issued on the 6th May 1988.
3. The
delay, and that there was, in instituting the proceedings was not fatal to the
Plaintiffs claim. On the other hand it was pointed out by Henchy J in
Sheehan
v. Amond
[1982] IR
235
that where there is delay in instituting proceedings the subsequent steps
should be taken with expedition. Henchy J summarised the position (at page 237)
in the following terms:-
“As
the plaintiff’s next friend, the plaintiff’s father got a solicitor
to issue a plenary summons in the High Court against the defendant in February,
1969, which was just within the three year limitation period. No explanation
has been given for that delay. It is a statutorily permitted delay but (as has
been pointed out in some of the cases), when the period of limitation for
instituting proceedings has been all but allowed to expire, a plaintiffs
solicitor should thereafter be astute to ensure that he is not dilatory in
regard to any of the further procedural steps that are necessary to avoid the
taint of prejudicial delay.”
4. That
is an observation which has been cited and applied in numerous subsequent cases.
5. On
the 27th March 1990 the Plaintiff served notice of intention to proceed within
one month from the date thereof. That intention was not implemented. A further
notice of intention to proceed dated the 28th March 1993 was served but again
no steps were taken in pursuance thereof. A third notice of intention to
proceed is dated the 4th March 1996 and subsequent to that a Statement of Claim
was delivered on the 19th April 1996. The essence
of
the
Plaintiffs claim is to be found in paragraph 4 of that pleading which is in the
following terms:-
“On
or about the 30th day of May 1985 the Plaintiff was a lawful passenger
travelling on Number 70 bus in the Merchants Quay area in the vicinity of
Blackhall
-2-
Place,
Dublin 7, when owing to the negligence and breach of duty of the Defendants
their servants or agents and each of them and either of them the Plaintiff was
violently thrown to the ground.”
6. The
Defendants served a notice for particulars on the 3rd May, 1996, to which a
reply was made on the 20th June 1996.
7. The
notice of motion dated the 31st July 1996 and returned for hearing by Mr
Justice Flood n the 21st October 1996 the Defendants sought:-
“An
order dismissing the Plaintiff’s claim herein on the grounds that the
Defendants are prejudiced in defending this claim by reason of an inexcusable
delay on the part of the Plaintiff in prosecuting her claim herein.”
8. The
motion to the High Court was grounded on the affidavit of Colm Costello
solicitor on behalf of the Defendants.
9. Mr
Costello set out the history of the matter and contended that the
Plaintiff’s delay was inordinate and inexcusable. He claimed further that
the Defendants were prejudiced by the delay for a variety of reasons. He
asserted in his affidavit that in 1992 the Claims Department had closed its
file on the case. He asserted that investigation of the Plaintiffs claim had
ceased. He stated that his clients had instructed him that there would be a
full defence to the action on the grounds that a cyclist had cycled across the
path of the bus in
-3-
question
and in doing so broke the traffic lights. This had created an emergency. He
specifically deposed that the driver of the bus in question, a Mr Stafford had
died. It was expressly stated that Mr Stafford had died in 1988. Whether this
death occurred before or matter the institution of the proceedings has not been
made clear. However, Mr Costello went on to explain the difficulties which had
been encountered in dealing with the claim after the Plaintiff had sought to
reactivate it. One potential witness is apparently unable to assist the
Defendants and it is claimed - and obviously must be the case - that any
medical examination of the Plaintiff at this stage would be of little value in
assessing the injuries sustained in the alleged accident.
10. Mr
Justice Flood made the order sought but did not allow the costs of the motion
or action and there is no cross-appeal before this Court in relation to such
costs.
11. The
matter was heard before Mr Justice Flood on the affidavit of Mr Costello and
the exhibits contained therein. No affidavit was sworn by or on behalf of the
Plaintiff. The circumstances bear a striking similarity to the facts in
Sheehan
.v. Amond
,
to
which I have already referred, and in respect of which Henchy J commented (at
page 239) as follows:-
“When
the motion came before the High Court on the 2nd November, 1981, the facts
which I have set out spoke for themselves. They called out for an explanation
as to why the plaintiff’s action was treated with what seems to have been
casualness to point of indifference, and for a reason why the defendant should
be called on to make his defence long after any reasonable system of law would
expect a defendant to be in a position to marshal his defence to a serious
claim against him in respect of a long-past road accident. But once again the
case is conspicuous for a
-4-
resounding
silence. Not one word of evidence was tendered in the High Court by, or on
behalf of the plaintiffs solicitor to explain, justify or even make
understandable the manner in which he had allowed the plaintiffs case to
acquire the appearance of extinction, or to suggest why the defendant should be
expected to cope with a claim which had become enmeshed in the cobwebs of
history. Nevertheless, although the evidence of inactivity and of seeming
negligence was all on one side (i.e., that of the plaintiffs solicitor), the
High Court judge allowed the action to proceed provided notice of trial was
served within one week.
Understandably,
the defendant has appealed against that decision. In effect, his counsel
submits that it would be contrary to the fundamentals of fair court procedures
if after what would be at least 17 years after the accident in question, the
defendant were to be expected to mount an effective defence against a claim
which the plaintiff’s solicitor has inexplicably allowed so to fade into
the dim uncertainties of the past as to be beyond the reach of fair
litigation.”
12. The
delay of eight years in delivering the Statement of Claim, particularly having
regard to the tardiness in instituting the proceedings, must be designated as
“inordinate
“.
No effort has been made to excuse that delay and Counsel for the Appellant
candidly admitted that it could not be excused.
13. Counsel
on behalf of the Appellant argued that the learned trial Judge was not entitled
to dismiss the Plaintiffs claim for want of prosecution. He contended that in
accordance with
-5-
the
Order 122 Rule 11 of the Rules of the Superior Courts an action cannot be
dismissed for ant of prosecution where proceedings have been taken in the two
years prior to the application. Counsel is correct in that submission. However,
I am afraid that it relates more to the form of the order as drawn up than to
the substance of the ruling made and the judgment given by the learned Judge of
the High Court. The application before him was not an application to dismiss
for want of prosecution. It was a similar but distinct application, in the
terms already quoted, to dismiss for reasons of delay - delay which was both
inordinate and inexcusable and prejudicial to the Defendants. This distinction
has been recognised in many cases of which
NIHE
.v. Wimpey
[1989] NI 395
is
one example. In this jurisdiction the position of parties to litigation is
protected by the Constitution. This Is expressly recognised in the principles
enunciated by the Chief Justice in
Primor
Plc .v. Stokes Kennedy Crowley
[1996]
2 IR 459
at
475 to which Counsel referred. The statement by the Chief Justice reaffirmed
the proposition that the Courts have an inherent jurisdiction to control their
own procedure and to dismiss a claim when the interests of justice require them
to do so. In addition he pointed out that even where inordinate and inexcusable
delay had been established that the Court was required to exercise a judgment
as to whether on the facts the balance of justice was in favour of or against
the proceeding. This involved consideration of the implied constitutional
principle of basic fairness of procedures. In particular the Court was required
to consider whether the delay and consequent prejudice in the special facts of
the case were such as to make it unfair to the defendant to allow the action to
proceed and to make it just to strike out the plaintiffs action.
14. It
was submitted by Counsel on behalf of the Appellant that the admitted delay did
not significantly prejudice the defence of the proceedings. Secondly, it was
contended that the decision of the Defendants, as explained in the affidavit of
Mr Costello, to close their file
-6-
on
the case in 1992 was ill advised and should not have been taken except in the
context of in application then made to strike out the Plaintiff’s claim
for want of prosecution.
15. In
relation to the prejudice alleged by the Respondent’s and disputed by the
Appellant it is accepted that the death of the Respondents bus driver occurred
before protracted delay had taken place. On the other hand, it must be conceded
that if the action had proceeded with reasonable dispatch the Respondents might
not have been deprived of his evidence. With regard to the difficulty of
obtaining appropriate medical evidence Counsel on behalf of the Respondents
properly informed the Court that an examination of the Plaintiff had been
carried out by a doctor on behalf of the Respondents in 1987. It was indicated
the doctor concerned had retired and that no examination had been made since
1987. Again, the Court was informed that a statement had been taken by the
Respondents from their driver and an issue was debated before the Court as to
whether the admission of that statement would enable the proceedings to
continue without substantial injustice to either party. It seems to vie that in
all of the circumstances of the case such an arrangement would not provide a
solution to the difficulties which exist. If evidence was called by the
Plaintiff contradicting the statement of the deceased driver, serious injustice
might be caused and in any event the problem with regard to medical evidence
would remain unresolved. Furthermore there is the difficulty that other
witnesses which the Respondents might have called are not now available. In
any event the recollection of any witness of events which occurred 14 years ago
must be of questionable value.
16. The
fact that the Respondents did not apply in 1992 to have the proceedings
struck-out for Lint of prosecution may be a factor to be taken into account but
in the context of the facts the present case it is one to which little weight
could be attached. It does not seem to me
-7-
that
the inactivity of the Respondents in that regard or their actions in seeking
particulars in ii lie of 1996 could amount to acquiescence in the delay on the
part of the Appellant. So far from it, it seems to me that the Respondents
reviewed fully and fairly their position as it appeared after the belated
delivery of the Statement of Claim and concluded correctly that they would be
gravely prejudiced in the presentation of their defence after the inordinate
and inexcusable delay which had by then occurred. In my view the learned Judge
of the High Court was correct in striking-out the Plaintiffs claim. I believe
that the form in which lie order was expressed was incorrect. It did not
reflect the judgment on the facts submitted to the Court or the form in which
the application had been brought. I would dismiss the appeal but rectify the
terms in which the order of the High Court has been expressed by ordering that
the action be dismissed for inordinate and inexcusable delay on the part of the
Plaintiff to the prejudice of the Defendant.
-8-
© 1999 Irish Supreme Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/1999/69.html
