Boliden Tara Mines Ltd v Irish Pensions Trust Ltd

JurisdictionIreland
CourtHigh Court
Judgethe Master of the High Court
Judgment Date05 February 2014
Neutral Citation[2014] JILL-IEHC 020501
Docket Number[No. 362 P/2006]
Date05 February 2014

[2014] JILL-IEHC 020501

THE HIGH COURT

[No. 362 P/2006]
Boliden Tara Mines Ltd v Irish Pensions Trust Ltd

BETWEEN

BOLIDEN TARA MINES LIMITED
PLAINTIFF

AND

IRISH PENSIONS TRUST LIMITED
DEFENDANT

RSC O.63 r1(5)

RSC O.20 r2

RSC O.27 r1

RSC O.122 r11

RSC O.122

RSC O.99 r6

RSC O.31 r21

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DOWD v KERRY CO COUNCIL & GALVIN 1970 IR 27

O'REILLY (AN INFANT) v CORAS IOMPAIR EIREANN 1973 IR 278

FINLAY v MURTAGH 1979 IR 249

SHEEHAN v AMOND 1982 IR 235

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140 1990/8/2334

MURPHY v MIN FOR DEFENCE & ORS 1991 2 IR 161 1991/4/981

SUN v OSSEOUS LTD 1992 1 IR 425 1991/10/2412

CELTIC CERAMICS LTD & ORS v INDUSTRIAL DEVELOPMENT AUTHORITY & HUNT 1993 ILRM 248 1992/10/3185

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512 1994/4/946

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

MURPHY (A MINOR) v J DONOHOE LTD & ORS (NO 2) 1996 1 IR 123

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

SOUTHERN MINERAL OIL LTD (IN LIQUIDATION) & SILK OIL (IRL) LTD (IN LIQUIDATION) v COONEY & FLAHERTY 1997 3 IR 549 1998/31/12299

WHEARTY T/A WHEARTY BROS v AGRICULTURAL CREDIT CORP LTD & ORS UNREP MCCRACKEN 31.10.1997 1998/34/13262

MERCANTILE CREDIT COMPANY OF IRELAND LTD & HIGHLAND FINANCE IRL LTD v HEELAN & ORS 1998 1 IR 81 1995/4/1150

TRUCK & MACHINERY SALES LTD v GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP PLC UNREP GEOGHEGAN 12.11.1999 1999/24/7888

DUNNE v ELECTRICITY SUPPLY BOARD UNREP LAFFOY 19.10.1999 1999/10/2485

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 12 ELR 33 2001/6/1371

SILVERDALE & HEWETTS TRAVEL AGENCIES LTD v ITALIATOUR LTD T/A OFFSHORE WORLD CUP 94 & ORS 2001 1 ILRM 464 2000/16/6277

KELLY v O'LEARY 2001 2 IR 526 2001/13/3651

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275

EWINS v INDEPENDENT NEWSPAPERS (IRL) LTD & PURCELL 2003 1 IR 583 2003/21/4763

DEKRA EIREANN TEO v MIN FOR THE ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084 2004 IEHC 112

O'CONNOR v JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321 2004/37/8672 2004 IEHC 99

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876 2004 IEHC 316

IRISH FAMILY PLANNING ASSOCIATION v YOUTH DEFENCE & ORS 2004 1 IR 374 2004 2 ILRM 19 2004/23/5238 2004 IESC 11

PJ CARROLL & CO LTD & ORS v MIN FOR HEALTH & ORS (NO 2) 2005 3 IR 457 2005/10/2026 2005 IEHC 267

KEOGH v WYETH LABORATORIES INC & JOHN WYETH & BROTHER LTD 2006 1 IR 345 2005 2 ILRM 508 2005/34/7132 2005 IESC 46

BYRNE v MIN FOR DEFENCE & ORS 2005 1 IR 577 2005/7/1413 2005 IEHC 147

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

MCGRATH v IRISH ISPAT LTD (IN VOLUNTARY LIQUIDATION) 2006 3 IR 261 2006/35/7581 2006 IESC 43

KATEGROVE LTD (IN RECEIVERSHIP) & ORS v ANGLO IRISH BANK CORP PLC UNREP CLARKE 5.7.2006 2006/31/6555 2006 IEHC 210

WOLFE v WOLFE & ORS UNREP FINLAY GEOGHEGAN 15.3.2006 2006/59/12482 2006 IEHC 106

CROWLEY v ROCHE PRODUCTS (IRL) LTD & ORS UNREP HONOHAN 20.1.2006 2006/13/2654 2006 IEHC 6

DEVOY v DPP 2008 4 IR 235 2008/12/2458 2008 IESC 13

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

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

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

O'CONNOR v NURENDALE LTD T/A PANDA WASTE SERVICES UNREP HOGAN 22.10.2010 2010/40/10232 2010 IEHC 387

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

MCFARLANE v IRELAND 2011 52 EHRR 20 2010 ECHR 1272

DONNELLAN v WESTPORT TEXTILES LTD (IN VOLUNTARY LIQUIDATION) & ORS UNREP HOGAN 18.1.2011 2011/14/3448 2011 IEHC 11

REDMOND v JUSTICE FLOOD & ORS UNREP GILLIGAN 28.3.2012 2012/40/11990 2012 IEHC 253

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

LISMORE BUILDERS LTD (IN RECEIVERSHIP) v BANK OF IRELAND FINANCE LTD & DELOITTE HASKINS & SELLS UNREP SUPREME 8.2.2012 2013/30/8902 2013 IESC 6

DESMOND v DOYLE & ORS UNREP SUPREME 17.12.2013 2013/13/3668 2013 IESC 59

the Master of the High Court
1

This is another "delay" case.

2

The plenary summons was issued on 30th January, 2006. In the books provided to the Court for the purpose of this application there is a document purporting to be the Statement of Claim delivered on 9th April, 2013, but, of course, as of now this document is only a draft since the defendant has declined to accept delivery thereof.

3

There is a delay of a little over seven years in this case. The plaintiff now moves the Court, under O. 63, r. 1(5) of the Rules of the Superior Courts, for an extension of time within which to deliver the Statement of Claim.

4

The rules provides that the Master may make such an order: Order 63, r. 1(5) gives practical effect to the inherent jurisdiction of the court to waive non-compliance with O. 20, r. 2, assigning this quasi judicial function to the Master. This assignment is of some significance as it is in the general scheme of the rules that only relatively non-controversial matters are designated as appropriate to the Master's List, and the matter is likely to be disposed of consent or, at the very most, with not much opposition.

5

But one cannot read O. 63, r. 1(5) in isolation. The same state of the litigation may give rise to a dismissal of the plaintiff's claim for want of prosecution. The specifics of that rule may also inform the court's decision on an O. 63, r. 1(5) application.

6

The rule governing the situation is Order 27, rule 1. Until relatively recently, this was the basis of an unfettered discretion to adjourn, dismiss or "make such other order as the court shall think just", but a recent amendment to the rule now distinguishes between a first application and any subsequent application. That distinction itself suggests that a first application should not result in an order of the sort specified for the subsequent application; that it would be disproportionate. On the second application, however, the court is to make an "unless" order dismissing the action "unless the court is satisfied that special circumstances (to the recited in the order) exist which explain and justify the failure".

7

The amendment to the rule seems to confirm that the court's predisposition should be to hear and accommodate a plaintiff's difficulties in finalising his statement of claim, and that if a defendant desires to oppose the application he should make an application to dismiss under O. 122, r. 11 (no proceeding for in excess of two years) and not otherwise. Or to put it another way, that the tests for a successful application under O. 27, r. 1 (dismissal for non-delivery of statement of claim within 21 days), should be identical to the O. 122 application. It would follow that O. 63, r. 1(5) applications will follow the same route of inquiry.

8

There is judicial support of this synthesis found in the judgment of McCracken J. inIrish Family Planning (29) in which the time for delivery of the statement of claim was not extended (because as drafted, it was unstatable) where he concluded at p. 388 that excusability was not the issue, but that:

"the approach which the court should take is (quoting HenchyJ. in (5)) to strike a balance between a plaintiff's need to carry on his or her delayed claim and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend; and (at page 390) that the court ought to examine the nature of the claim being made by the plaintiff. "

9

And so, a plaintiff's failure to deliver the statement of claim within the specified time (and his motion to extend time) may find him running the full gauntlet of the tests governing a defendant's application to dismiss under the court's inherent jurisdiction to prevent a miscarriage of justice. Small wonder, then, that Barrington J. commented in (13) at p. 141 that "those who ignore the rules run the risk of finding themselves on an uncharted sea ".

10

Since the 1970 case ofDowd (1) the superior courts have produced fifty odd decisions (some unreported) in which the court's approach to these issues is explored. Whether this has been a productive use of judicial time is for others to judge. There has been too much duplication of effort, in my view. I have listed these 50 cases. Each such judgment identifies the element or elements of the proceedings which were identified as material, and the weight attached to each by the Court in each case. I propose merely to offer a distillation.

11

Note, firstly, that O Dálaigh C J. did not use the word "excusable" in that first case. Note also that he is not over concerned with compliance with the rules of the court. "The rules are the servant, not the master, of justice" (Page 42) and the ratio is in the passage:

"It is, of course, desirable that the timetable as laid down in the rides, should be adhered to, but the question remains whether the delay and consequent (my emphasis) prejudice in the special facts of the case are such to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action."

12

The essence of excusability is, it is submitted, clearer when one considers the consequences of inexcusability. If non-compliance with a particular rule (or court order) is inexcusable, there will be a sanction, but it should be proportionate. Since O Dálaigh C.J. did...

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