THE SUPREME COURT

Keane C.J.
Hardiman J.
Fennelly J.

261 & 338/02
BETWEEN
MICHAEL COLIN GEOFFREY MCMULLEN
PLAINTIFF
AND
CAREN FARRELL & ORS
DEFENDANTS

JUDGMENT delivered the 29th day of January 2004, by Keane C.J. [Nem Diss]

These proceedings have a long history.  They arise out of an action instituted as far back as the 19th March, 1986.  The claim made therein against the first, second, third and fourth named defendants, a firm of solicitors (hereafter “the respondents”) was dismissed and it was ordered that the respondents should recover from the plaintiff the costs of the proceedings when taxed and ascertained.

The taxation of the respondents’ costs took place before the late Taxing Master O’Connor on the 8th July and the 13th November, 1992.  On the 22nd December, 1992 a notice of motion seeking a review of the taxation was issued on behalf of the plaintiff. There were substantial delays in the obtaining of a final report of the Taxing Master and it did not become available until the 21st February 1997.

 The plaintiff’s then solicitors applied by notice of motion to the High Court to come off record in the proceedings and on the 9th June, 1997, that order was made and the proceedings were adjourned generally with liberty to re-enter.  The court was also informed on that occasion that the plaintiff was making an application against Ireland to the European Commission of Human Rights arising out of the manner in which the proceedings instituted by him in this jurisdiction had been dealt with by the Irish courts.  On the 21st October, 1998 the Commission issued its report, finding that there had been a violation of Article 6.1 of the European Convention of Human Rights and Fundamental Freedoms on the ground that the plaintiff’s case had not been heard within a reasonable time.

Thereafter no step was taken by the plaintiff to re-enter the proceedings.  On the 18th March, 2002, the respondents issued a notice of motion in which they sought an order dismissing the plaintiff’s application for a review of taxation for want of prosecution.  

On the hearing of the motion, the plaintiff said that the signature of the Commissioner for Oaths on the grounding affidavit of Donal Houlihan, solicitor, was indecipherable and that there was no independent address given for the Commissioner.  He further submitted that a notice of intention to proceed should have been served by the respondents.  That submission was rejected by Ó Caoimh J. who, however, said that he was not satisfied that the justice of the case required at that stage that the respondents’ application should be granted and that he considered the appropriate course was to allow a short interval to the plaintiff to re-enter the proceedings and prosecute them, in default of which the court would have no alternative to granting the relief sought.  He accordingly made an order on the 1st July, 2002 adjourning the motion for a period of three months.  The adjourned hearing came on before him on the 9th October and, the proceedings not having been re-entered in the interval, he made an order dismissing the plaintiff’s application for review of the taxation for want of prosecution.  The plaintiff has appealed to this court from both the orders of the 1st July, 2002 and the 9th October, 2002 and has appeared in person in this court as he did in the High Court.

The first submission made by the plaintiff was that there should have been what he described as a “full and frank disclosure” of all relevant documents in the proceedings in the High Court and that, as counsel for the respondent, Mr. Robert Barron, had not furnished the court at the hearing on the 1st July with a copy of the order of the High Court of the 9th June, 1997 adjourning the proceedings generally, the order made by Ó Caoimh J. on 1st July, 2002 should be set aside.

That submission is without foundation and wholly devoid of merit.  As is clear from the written judgment of Ó Caoimh J., he dealt with the matter on the perfectly correct basis that the proceedings had been adjourned generally with liberty to re-enter on the 9th June, 1997.  The plaintiff sought to rely on the fact that the curial part of the order read:

“AND IT IS ORDERED that these proceedings be adjourned generally with liberty to re-enter by letter.”

The plaintiff submitted that the court should have been informed that the re-entry was to be effected “by letter”, that the respondent should have written such a letter before issuing the present notice of motion and that, if this had been drawn to the attention of the learned High Court judge, he would or should have declined to grant the relief sought.  

It hardly needs to be said that such a submission is totally without foundation.  The provision for the re-entry of the proceedings by letter was in ease of the plaintiff and dispensed him from the necessity of bringing a formal notice of motion in order to re-activate the review of taxation.  It imposed no obligation whatever on the respondent as a preliminary to issuing the notice of motion.  As for the plaintiff’s submission that Mr. Barron had been personally guilty of “secretive” conduct and “sleight of hand” in not producing this order to the High Court, I am satisfied that, while the court will always allow every possible indulgence to a lay litigant that can be afforded without injustice to the other party, those remarks by the plaintiff, which were made with every deliberation, were a calculated reflection on counsel’s professional integrity and were wholly baseless.  The order of the 9th June, 1997 could have been taken up by the plaintiff at any stage from the Central Office and there was not the slightest justification for his suggestion that it was deliberately concealed from the court or from him.

The plaintiff again complained in this court, as he had in the court below, that the signature of the Commissioner for Oaths on the grounding affidavit was indecipherable and that no independent address was given.  Rules 17 and 18 of Order 40 of the Rules of the Superior Courts provide that an affidavit is not to be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used or before his clerk or partner.  The signature of the Commissioner in this case in certainly difficult to decipher but the court was informed during the hearing and accepted that it was that of a solicitor who was not a partner in the firm of solicitors acting for the respondents herein.  

The plaintiff again relied in this court on the submission that he advanced in the High Court, i.e. that a notice of intention to proceed should have been served on behalf of the respondent before the present motion was issued.  

Order 122, Rule 11 of the Rules of the Superior Courts provides that

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed.  In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss the same for want of prosecution, and on the hearing of such application the court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the court may seem just.  A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”

The meaning of this rule is quite clear.  Where a party wishes to proceed in a cause of matter in which there has been no proceeding for a year or more, he must give one month’s notice of his intention to proceed before he can take any further step in the proceedings.  The second part of the rule enables a defendant, where there has been no proceeding for two years or more from the last proceeding, to obtain an order that the proceedings be dismissed for want of prosecution.  A defendant making such an application is not a party “who desires to proceed” within the meaning of the first sentence: on the contrary, he is seeking the dismissal of the proceedings.  The experience of the members of the court is that it has never been considered necessary for a defendant seeking to have an action dismissed for want of prosecution to serve any notice of intention to proceed, since there is nothing in the wording of r. 11 to indicate that that was the intention of the rule making authority.

The court was referred to two authorities of long standing which make it clear that that is indeed the position.  Order 64, Rule 15, of the Rules of the Supreme Court (Ireland), 1905, set out with a commentary at p. 867 of Wylie’s Judicature Acts is in identical terms to O. 122 r. 11.  In Bradley –v- Comerford [29 ILTR 55] the Queen’s Bench Division granted an application to dismiss for want of prosecution, having inquired from counsel for the defendant whether such a notice had been served and counsel having submitted that there was no necessity for such a notice.  There had been no appearance for the plaintiff in that case, but the view of the law taken by the Queen’s Bench Division was confirmed in McCaul –v- Guardians of Carrickmacross Union [29 ILTR 96], where the same point was taken on behalf of a plaintiff resisting the application.  

The learned High Court judge, accordingly, clearly had jurisdiction to make an order, if he was satisfied that the justice of the case so required, dismissing the application for review of taxation for want of prosecution.  Manifestly, for so long as the plaintiff declines to re-enter that review for hearing, the defendants are wholly unable to recover the amount of their costs as taxed and ascertained by the Taxing Master from the plaintiff which, in the absence of a review, they would be fully entitled to do.  It would be remarkably unjust if the plaintiff, by the simple expedient of declining to re-enter the review for hearing, could deprive the defendants indefinitely of costs which are unarguably owing to them.  It is noteworthy that the plaintiff, when asked by this court whether he had any intention of proceeding with the review of taxation at any stage, declined to answer.  I have no doubt that the learned High Court judge, having given the plaintiff ample opportunity to re-enter the proceedings by writing a simple letter to that effect and the plaintiff having failed to do so, was fully entitled to dismiss the proceedings for want of prosecution.

I would dismiss both appeals and affirm the two orders of the High Court.