Aherne v Motor Insurers Bureau of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 10 August 2012
• Neutral Citation: [2012] IEHC 351
• Docket Number: [No. 12398 P./2001]
• Court: High Court
• Date: 10 August 2012

Aherne v Motor Insurers Bureau of Ireland

BETWEEN

DAVID AHERNE

PLAINTIFF

AND

MOTOR INSURERS BUREAU OF IRELAND

DEFENDANT

[2012] IEHC 351

[No. 12398 P./2001]

THE HIGH COURT

Practice and procedure – Renewal of plenary summons – Personal injuries – Untraced motorist – Delay – Whether respondent prejudiced by delay in pursuing claim – Whether court should grant renewal of summons – Rules of the Superior Courts, 1986 – Statute of Limitations, 1957.

Facts The applicant had been involved in a motorcycle accident and had sustained serious injuries. Difficulties had ensued in identifying the driver of the other vehicle and the plaintiff accordingly issued proceedings against the respondent. Owing to various factors the plenary summons had lapsed and the applicant brought an application pursuant to the provisions of Order 8, r. 1 of the Rules of the Superior Courts, 1986 for the renewal of a plenary summons. On behalf of the respondent it was contended that the applicant had not shown good reason why the relief sought should be granted and it was not in the interests of justice that that the time be extended because of the hardship that this would impose on the respondent. The respondent submitted that it would be deprived of a defence under the Statute of Limitations, 1957 (as amended) and it would be substantially prejudiced in defending the claim by a delay of almost thirteen and a half years since the date of the alleged road traffic accident.

Held by Herbert J in granting the renewal: The respondent had been aware from the very beginning that the applicant intended to sue them. The respondent had also been aware that proceedings had been issued and the respondent had been asked to nominate solicitors to accept service of the proceedings. Despite the length of time that had passed since the date of the alleged road traffic accident, the court was satisfied that no actual or specific prejudice would be suffered by the respondent if the plenary summons were to be renewed. No evidence had been given that some identified person, whose evidence might be material in conducting the defence of the respondent, would no longer available to give evidence should the court grant the renewal. The balance of justice between the parties was in favour of extending the time and renewing the summons.

RSC O.8 r1

CHAMBERS v KENEFICK 2007 3 IR 526 2005/10/2105 2005 IEHC 402

BAULK v IRISH NATIONAL INSURANCE CO LTD 1969 IR 66 1971 105 ILTR 89

RSC O.108 r7

MCCOOEY v MIN FOR FINANCE & MCGEOUGH 1971 IR 159

O'BRIEN v FAHY T/A GREENHILLS RIDING SCHOOL UNREP SUPREME 21.3.1997 1997/11/3442

ROCHE v CLAYTON & ORS 1998 1 IR 596

MARTIN v MOY CONTRACTORS LTD UNREP 11.2.1999 1999/17/5117

MOLONEY v LACEY BUILDING & CIVIL ENGINEERING LTD & ORS 2010 4 IR 417 2010/36/9152 2010 IEHC 8

FIRMAN v ELLIS 1978 QB 886 1978 3 WLR 1 1978 2 AER 851

CHAPPELL v COOPER; PLAYER v BRUGUIERE 1980 1 WLR 958 1980 2 AER 463

MULCAHY v CORAS IOMPAIR EIREANN UNREP PEART 14.7.2011 2011/11/10977 2011 IEHC 292

CREEVY v BARRY-KINSELLA & ORS UNREP DUNNE 17.4.2008 2008/9/1750 2008 IEHC 100

ALLERGAN PHARMACEUTICALS (IRL) LTD v NOEL DEANE ROOFING & CLADDING LTD & ORS 2009 4 IR 438 2006/2/371 2006 IEHC 215

Mr. Justice Herbert

1 The plaintiff/applicant seeks an order, pursuant to the provisions of O. 8, r. 1 of the Rules of the Superior Courts, extending the time for leave to renew a plenary summons, 2001/ 12398 P, issued on the 2^nd August, 2001, but not served. The relevant part of the rule is as follows:-

"No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons.… and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action shall be limited and for all other purposes from the date of the issuing of the original summons."

2 The defendant/respondent opposes the application on the grounds that the applicant has not shown good reason why the relief sought should be granted and, should the court determine otherwise, it is not in the interests of justice between the parties that the time be extended because of the hardship that this would impose on the respondent, (Chambers v. Kenefick [2007] 3 I.R. 526 at 530 per. Finlay Geoghegan J.). The hardship identified by the respondent is firstly, that it would be deprived of a defence under the Statute of Limitations 1957 (as amended) and secondly, it would be substantially prejudiced in defending this claim by the delay of almost thirteen and a half years since the date of the alleged road traffic accident on the 25^th February, 1999.

3 The facts are set out in the principal affidavit, sworn on the 18^th October, 2011, and, supplemental affidavit, sworn on the 5^th July, 2012, of Siobhan P. Fahy, solicitor and principal of the firm of Fahy Law, solicitors for the applicant and, in the replying affidavit of Thomas J. O'Halloran, solicitor for the respondent sworn on the 18^th June, 2012.

25th February, 1999	The applicant claims that he was riding his Suzuki G.S. 850 motorcycle on the public roadway at or near Griffin's Cross, Limerick, when a vehicle collided with the rear of the motorcycle driving him into a field as a consequence of which he sustained very serious injuries.
30th August, 2000	The applicant's previous solicitors notified the respondent by registered post of a, "hit and run" accident and asked to be provided with a questionnaire.
20th April, 2001	The applicant's previous solicitors sent a reminder to the

	respondent.
25th April, 2001	The requested questionnaire was received from the respondent.
20thJuly, 2001	The questionnaire was completed and returned to the respondent. A reply in the negative was given to the question, - "did gardaí investigate". It was stated that Henry Street Gardaí attended at the scene. No Garda report had been obtained, no witness statements were available and no prosecution was pending under the Road Traffic Acts.
25thJuly, 2001	The respondent acknowledged receipt of the completed questionnaire and advised the applicant's previous solicitors that they were investigating the insurance and other aspects of the matter and would be in touch.
30th July, 2001	The applicant's previous solicitors wrote to the respondent asking them to nominate an Insurance Company to handle the claim.
2nd August, 2001	The applicant's previous solicitors issued, - but did not serve, - a plenary summons, 2001 No. 12398 P, claiming compensation pursuant to the provisions of the agreement between the respondent and the Minister for the Environment made on the 31st December, 1988, for personal injuries, loss, damage and expense occasioned to the applicant by reason of the negligence, breach of duty and breach of statutory duty of an untraced motorist.
30th August, 2001	By letter of this date the respondent asserted that the applicant could not prosecute such a claim against the respondent.
2nd October, 2001	By a letter of this date, marked "without prejudice", (this was waived at the hearing of this application) the applicant's previous solicitors indicated that they did not accept this opinion of the respondent and asked the respondent to nominate solicitors to accept service of the proceedings. This letter also advised the respondent of the following matters:-

4 (i) Members of the Garda Síochána did not carry out any investigation of the accident despite the seriousness of the injuries suffered by the applicant.

5 (ii) A Mr. John Colbert would state that he was "flagged down" by the driver of a pick-up truck at the scene of the accident.

6 (iii) This pick-up truck was facing towards the field and the driver appeared very agitated. Mr. Colbert considered that this man was involved in the accident.

7 (iv) Mr. O'Sullivan, consulting engineer, (Report and photographs from John G. O'Sullivan, consulting engineers were enclosed with this letter), considered that the damage to the applicant's motorcycle was consistent with its being struck in the rear by a vehicle with "bull-bars" or the like on the front of the vehicle.

8 (v) Mr. John Colbert stated that the pick-up truck at the scene of the accident was equipped with "bull-bars" on the front.

14th January, 2002	The applicant's previous solicitors wrote to the respondent advising it that they had ascertained that Mr. Desmond O'Neill, Mr. Michael McMahon and Mr. David O'Connor may have been responsible for the accident and the respondent would also be liable.
21st January, 2002	By a letter of this date the respondent wrote to the applicant's previous solicitors stating that "they were filing their papers", in "Aherne v. Untraced Motorist".
24th January, 2002	The previous solicitors for the applicant requested a reply to their letter of the 14th January, 2002.
4th February, 2002	The previous solicitors for the applicant issued a plenary summons, 2002 No. 1531 P, claiming damages against Desmond O'Neill, Michael McMahon, David O'Connor and the respondent.
17th June, 2002	The respondent wrote again to the applicant's previous solicitors

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