Alan Barry v Renaissance Security Services Ltd and Mateusz Grzeskowika

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 20 May 2022
• Neutral Citation: [2022] IECA 115
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/154

Between/

Alan Barry

Plaintiff/Respondent

and

Renaissance Security Services Limited and Mateusz Grzeskowika

Defendants/Appellants

[2022] IECA 115

Whelan J.

Faherty J.

Binchy J.

Appeal Number: 2020/154

THE COURT OF APPEAL

Personal injuries – Want of prosecution – Inordinate and inexcusable delay – Appellants seeking to strike out the respondent’s claim for want of prosecution on the grounds of inordinate and inexcusable delay – Whether the balance of justice favoured the dismissal of the proceedings

Facts: The plaintiff/respondent, Mr Barry, claimed damages for personal injuries, loss and other damage suffered by the plaintiff by reason of a trespass to the person of the plaintiff, assault and battery on the plaintiff and/or by reason of the negligence and/or breach of duty (including statutory duty) of the defendants/appellants, Renaissance Security Services Ltd and Mr Grzeskowika. The defendants appealed to the Court of Appeal against the refusal of the High Court to strike out the plaintiff’s claim for want of prosecution on the grounds of inordinate and inexcusable delay. The motion Judge (Cross J) held that while there had been inordinate and inexcusable delay the balance of justice did not warrant the dismissal of the proceedings. The defendants agreed with the finding of inordinate and inexcusable delay but asserted that the motion Judge erred in finding that the balance of justice did not warrant the striking out of the proceedings. They contended that the Judge made a number of factual errors that vitiated his finding as to where the balance of justice lay. They submitted that matters could not just be reduced to making findings of inordinate and inexcusable delay on the part of the plaintiff and then balancing that delay against an absence of special prejudice to the defendants, as the motion Judge appeared to do. The defendants said that contrary to the finding of the High Court, the balance of justice favoured the dismissal of the proceedings.

Held by Faherty J that the Judge was within his discretion in arriving at the findings he made; he did so on the facts of the case before him, having considered same against the relevant legal principles. Faherty J held that it cannot be gainsaid but that the relative prejudice to the plaintiff flowing from the order sought by the defendants was absolute and severe whereas the prejudice contended for by the defendants in Ms Dunne’s supplemental affidavit was largely hypothetical and unsubstantiated (and notably, even such as it was, only contended for on affidavit by the solicitor for the first defendant’s insurers). Faherty J held that this was a consideration, and a countervailing factor, for the motion Judge to take account of (as he clearly did when he opined that the alleged prejudice was not identified save in the most general terms) in circumstances where the jurisdiction to strike out a claim for delay is clearly confined to exceptional cases. Faherty J held that while the plaintiff’s delay was as found by the court below to be inordinate and inexcusable (such that for the future progress of the proceedings the plaintiff must be subjected to a very strict timeframe), the circumstances of the case were not such that the plaintiff’s claim should be dismissed.

Faherty J upheld the decision of the motion Judge and the order of 7 July 2020 and, accordingly, dismissed the appeal. Faherty J held that as the defendants had not succeeded in their appeal, the plaintiff should be entitled to his costs.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty dated the 20 ^th day of May 2022

1 . This is the defendants' appeal against the refusal of the High Court to strike out the plaintiff's claim, for want of prosecution on the grounds of inordinate and inexcusable delay. The motion Judge (Cross J.) held that while there had been inordinate and inexcusable delay the balance of justice did not warrant the dismissal of the proceedings.

2 . The defendants agree with the finding of inordinate and inexcusable delay but assert that the motion Judge erred in finding that the balance of justice did not warrant the striking out of the proceedings. They contend that the Judge made a number of factual errors that vitiate his finding as to where the balance of justice lay. They submit that matters cannot just be reduced to making findings of inordinate and inexcusable delay on the part of the plaintiff and then balancing that delay against an absence of special prejudice to the defendants, as the motion Judge appeared to do. The defendants say that contrary to the finding of the High Court, the balance of justice favoured the dismissal of the proceedings.

Chronology

3 . The chronology of the proceedings is as follows.

4 . The incident (an alleged assault) which gave rise to the proceedings occurred on 24/25 July 2011. As can be seen therefore, the claim is of some considerable antiquity. The plaintiff made an application to the PIAB on 23 July 2013 and a grant of authorisation issued on 23 September 2013. The plenary summons issued on 20 March 2014. The plaintiff's claim is for damages for personal injuries, loss and other damage suffered by the plaintiff by reason of a trespass to the person of the plaintiff, assault and battery on the plaintiff and/or by reason of the negligence and/or breach of duty (including statutory duty) of the defendants. The plenary summons was served personally on the defendants approximately a year later on 13 March 2015.

5 . The defendants' solicitors wrote on three occasions (20 April 2015, 6 May 2015 and 11 May 2015) seeking the original of the plenary summons, evidence of service of the proceedings on the defendants and the plaintiff's consent to the late filing of an appearance. This correspondence was ultimately responded to on 15 May 2015, the plaintiff's solicitors advising that the proceedings had been served on the defendants directly.

6 . On 18 May 2015, the defendants' solicitors wrote again seeking consent to the late filing of an appearance, confirmation of the date of service on the defendants and sight of the affidavit of service of the plenary summons. They repeated those requests on 3 June 2015 following which the plaintiff's solicitor responded on 15 June 2015 consenting to the late entry of an appearance.

7 . An appearance was entered on behalf of both defendants on 17 June 2015. A month later, on 15 July 2015, the defendants wrote to the plaintiff's solicitor seeking the affidavit of service of the proceedings on the defendants, a certified copy of the plenary summons and the statement of claim. They wrote twice on 13 August 2015 seeking this documentation and warning that in the event of the plaintiff failing to deliver the documentation within 21 days, the defendants would proceed by way of motion, without further notice, seeking to strike out the plaintiff's claim for failure to deliver a statement of claim and prove service. In their second letter, the defendants' solicitors remarked that there was considerable delay in issuing the proceedings and that their instructions were to fully defend same. They again called on the plaintiff to serve an original and true copy of the plenary summons for the purposes of endorsing service and they repeated their warning regarding the failure to deliver a statement of claim.

8 . The plaintiff's solicitors responded on 17 August 2015 to the effect that they were “desperately” seeking to contact the plaintiff and had been trying for some time. The defendants' solicitors responded on 18 August 2015 noting the position and offering a further short period for the delivery of the statement of claim. They sought, however, the affidavit of personal service on both defendants and a certified copy of the plenary summons, stating that they did not see how the failure to make contact with the plaintiff was germane to the provision of this documentation. By 22 September 2015, the defendants were still seeking the affidavit of personal service and a certified copy of the plenary summons. In their letter to the plaintiff's solicitors they stated:

“Once valid service has been proved and we are in receipt of certified copy Pleadings we will be seeking immediate delivery of a statement of claim as we are anxious to advance these proceedings by way of a full Defence noting that the incident, subject matter of the proceedings, occurred as far back as the 25 ^th July, 2011 and we believe that the Defendants have already been prejudiced by the Plaintiff's delays.”

9 . The defendants next wrote on 20 October 2015 noting that no reply had been forthcoming to their correspondence of 18 August 2015 and 22 September 2015. They repeated their earlier assertion that they were prejudiced by the plaintiff's delays.

10 . They wrote again on 19 November 2015 reminding the plaintiff's solicitor that the documentation sought, including the statement of claim, remained outstanding and advising that they intended proceeding by way of motion relying on their letter of 13 August 2015. They went on to state:

“We call upon you to confirm by return that you have established contact with your client and he is proceeding with his claim and we reiterate that we are of the opinion that the case is Statute Barred and the Defendant has been significantly compromised by the delay in the Plaintiff bringing proceedings herein and same will be strenuously defended.”

11 . On 23 November 2015, the plaintiff's solicitors wrote apologising for not replying to the defendants' correspondence of August, September and October 2015. They advised that they had been unable to contact the plaintiff and opined that there must be some good reason as to why he had not responded to their letters.

12 . This correspondence was followed up with another letter from the plaintiff's solicitors on 22 December 2015 again advising that they had been unable to...