Bowe v Sheriff and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 30 January 2025
• Neutral Citation: [2025] IECA 14
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2024/23

Between/

John Bowe

Plaintiff/Appellant

and

Rory Sherriff, The Commissioner of An Garda Síochána, Ireland and The Attorney General

Defendants/Respondents

[2025] IECA 14

Whelan J.

Pilkington J.

Meenan J.

Court of Appeal Record Number: 2024/23

THE COURT OF APPEAL

Personal injuries – Discovery – Special circumstances – Appellant appealing against an order setting aside an order which struck out the defendant’s defence for failure to comply with an order for discovery – Whether the trial judge erred in finding that “special circumstances” existed within the meaning of O. 27, r. 15(2) RSC

Facts: The appellant, Mr Bowe, instituted proceedings by personal injury summons on 26 January 2017. The reliefs claimed included damages for personal injury loss and damage arising from alleged battery, negligence and breach of duty by the first defendant, Garda Sherriff, and “other unknown members of an Garda Síochána” on 5 December 2014 and negligence, breach of duty and vicarious liability on the part of the second and third defendants, the Commissioner of An Garda Síochána and Ireland. The appellant appealed to the Court of Appeal against an order of the High Court (O’Connor J) made on 19 December 2023 setting aside (for recited special circumstances) an order made by the Deputy Master of the High Court on 3 May 2022 which struck out the defendant’s defence for failure to comply with an order for discovery made on 25 January 2021. The plaintiff contended that the trial judge erred in granting the orders and, in particular, in finding that “special circumstances” existed within the meaning of O. 27, r. 15(2) of the Rules of the Superior Courts (RSC).

Held by Whelan J that no basis had been identified for interfering with the judgment and orders of the trial judge and his reasoning and conclusions on the facts as warranting the exercise of his discretion. With regard to the extension of time, in the context of how the hearing was conducted and the approach of the parties to the Eire Continental Trading Co. Ltd v Clonmel Foods [1955] I.R. 170/Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3 jurisprudence, Whelan J held that no valid basis had been identified for interfering with the approach of the judge. Whelan J held that a proper analysis was carried out by the judge for the purposes of the exercise of a discretion pursuant to O. 27, r. 15(2) RSC. Whelan J held that the judge correctly had regard to the analysis and dicta of Ferriter J in De Souza v Liffey Meats [2023] IEHC 402 and the earlier decision of the Court of Appeal in Murphy v Health Service Executive [2021] IECA 3. Whelan J held that the dicta of Murray J in McGuinn v The Commissioner & Others [2011] IESC 33 was apposite. Whelan J held that the approach in the appeal was to assess whether or not the approach and conclusions of O’Connor J in the High Court judge were reasonable in all of the circumstances; further, insofar as an order was required extending time to comply with the order for discovery (which was validly set aside) authorities such as Mercantile Credit Corporation of Ireland v Heelan [1998] 1 I.R. 81 demonstrated the correctness of the High Court’s approach. Whelan J held that no valid basis had been identified which would warrant interfering with the application of the rules, the exercising of the judge’s discretion or said orders in light of the special circumstances and the interests of justice.

Whelan J dismissed the appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 30 ^th day of January 2025

1 . This is an appeal against an order of Mr. Justice O'Connor made in the High Court on 19 ^th December 2023 (perfected on 8 ^th January 2024) setting aside (for recited special circumstances) an order made by the Deputy Master of the High Court on 3 ^rd May 2022 which struck out the Defendant's defence for failure to comply with an Order for Discovery made on 25 ^th January 2021.

2 . There had been no appearance by or on behalf of the defendants at the hearing of the said discovery motion. It is not in dispute that the order had been properly served on them. The discovery order not being complied with by the defendants within the time allowed, the plaintiff issued a motion to strike out the defence, at the hearing of which counsel on behalf of the Defendants attended court where time was extended for compliance with discovery to 25 ^th January 2022.

3 . That deadline not being met, a further motion to strike out the defence issued which was returnable before the Deputy Master on 3 ^rd May 2022. There was no appearance by or on behalf of the Defendants at the hearing of same and the orders sought were granted. The said order was served on the Defendants on 1 ^st June 2022. On 5 ^th October 2022 the Defendants issued a notice of motion seeking, inter alia, an order pursuant to O. 27 RSC setting aside the order of the Deputy Master. Additionally, orders were sought pursuant to O. 122, r. 7 RSC, as amended, to extend time to appeal the Deputy Master's order and to extend time to comply with same.

Background

4 . The within proceedings were instituted by personal injury summons on 26 ^th January 2017. The reliefs claimed include damages for personal injury loss and damage arising from alleged battery, negligence and breach of duty by the first defendant and “other unknown members of an Garda Síochána” on 5 ^th December 2014 and negligence, breach of duty and vicarious liability on the part of the second and third named defendants. The matter is to be tried by jury. Prior to the institution of proceedings, the Personal Injuries Assessment Board issued an authorisation on 17 ^th February 2016. The personal injury summons was served almost a year later. Appearances were entered on behalf of all defendants in early 2017. A notice for particulars was served on 6 ^th March 2017 and the defendants' defence was delivered in the first instance on 5 ^th May 2017.

5 . It appears that the plaintiff was convicted on fourteen counts of dangerous driving before the District Court on 5 ^th December 2018 arising from the events in question. The issue of severity of sentence alone was appealed to the Circuit Criminal court and concluded on 12 ^th February 2019.

Ex tempore judgment

6 . The Defendants' motion to reinstate their defence issued on 5 ^th October 2022 and was adjourned from time to time by Mr. Justice Ferriter in the High Court to await the outcome of a pending interlocutory application of relevance which ultimately resulted in the judgment De Souza v. Liffey Meats [2023] IEHC 402 (“ De Souza”). The Defendants' motion was ultimately heard by O'Connor J. on 19 ^th December 2022. He delivered his judgment ex tempore and subsequently a written copy of same was furnished. He observed “it is in the interest of justice and good court management to make orders on foot of this outstanding motion today with a summary of my reasons.” He set out the terms of the order he proposed to make, indicating “I will hear further submissions from counsel after they have considered the reasons.” (para. 5) He granted an order pursuant to O. 27, r. 15(2) RSC setting aside “what is effectively the judgment by default granted by the Deputy Master on 3 May 2022 due to the following special circumstances:

The judge identified a third “special circumstance” as —

“(c) the inability of the said solicitor due to challenges without the day-to-day structure of his previous office structure to care for his files coupled with the facts deposed to about his health and hospitalisations.”

• (i) the plaintiff was aware from at least the delivery of the defence on 5 May 2017…up to the 3 May 2022…and from at least a date in October 2022 to date, that the defendants intended to keep liability in issue in these proceedings at the trial before a jury;

• (ii) the solicitor designated by the Chief State Solicitor to take instructions and to act as solicitor for the defendants in these proceedings in his affidavit sworn on 26 ^th June 2023 has outlined without challenge on behalf of the plaintiff the following facts, inter alia:

  (a) the connectivity difficulties which had impacted the file management after the imposition of restrictions to combat Covid-19 from March 2020 up to September 2020;”

  “(b) the continuing ICT issues and inability to monitor incoming post during the Level 4 and 5 Covid-19 lockdown periods.”

7 . The substance of these affidavits will be considered hereafter. The Plaintiff did not contest the said affidavits particularly the final affidavit of the solicitor and same was admitted ultimately without challenge or cross-examination.

Of the defendants' conduct the judge had regard to:

“(d) the efforts made by the defendants and the said solicitor to collate the documents for discovery and the ultimate making of an affidavit as to documents sworn on 10 October 2022 (albeit only served on 15 June 2023);

(e) the handing over of a folder containing copies of all those documents discovered on 19 December 2023;

(f) the appointment of a new solicitor by the Chief State Solicitor since early June 2023 to replace the said solicitor to advise, take instructions, brief counsel, and do for a solicitor does for his/her clients in respect of these proceedings.

(g) It is in the interests of justice that the defendants and particularly the first named defendant, a member of an Garda Síochána, be afforded the opportunity to vindicate his reputation before a jury.”

He set aside the order of the Deputy Master of 3 ^rd May 2022 and extended time, inter alia, to comply with the order for discovery made by the High Court (Cross J., 25 ^th January 2021).

The appeal

8 . The Plaintiff contends that the trial judge erred in granting the orders and, in particular, in finding that “ special circumstances” existed within the meaning of O.27, r. 15(2) RSC. It is contended that...