Brennan v Iarnród Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr,Miss Justice Carroll,Mrs. Justice Denham,Mr. Justice Blayney
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 1558
• Docket Number: [1989 No. 5357 P.],5357P/1989
• Court: High Court
• Date: 01 January 1993

1992 WJSC-HC 1558

THE HIGH COURT

5357P/1989

BRENNAN v. IARNROD ElREANN

BETWEEN

SHIRLEY BRENNAN

PLAINTIFF

AND

IARNROD EIREANN BRENTWOOD SECURITY LIMITED AND FIVESTARPROTECTION SERVICES LIMITED

DEFENDANTS

Synopsis:

PRACTICE

Defence

Lodgment - Time limit - Extension - Application - Refusal - Damages claimed for personal injuries - Application made after failure of negotiations for compromise of plaintiff's action - Disclosure of plaintiff's medical reports during negotiations - Rules of the Superior Courts, 1986, order 22, r. 1 - (1989/5337 P - Barr J. - 20/1/92) - [1992] 2 I.R. 167 - [1993] ILRM 134

|Brennan v. Iarnrod Eireann|

1 Judgment of Mr. Justice Barrdelivered the 20th day of January, 1992.

2 This is an application by the defendants, all of whom are now represented by the same solicitors, to make a lodgment and amend their Defences accordingly, though time for so doing has expired.

3 I have been informed by counsel that representatives of the parties have met on two occasions and negotiations have taken place in an effort to settle the plaintiff's claim. In that connection the plaintiff's solicitor furnished to the solicitors for the defendants copies of all medical reports in his possession relating to the plaintiff's injuries. A settlement did not emerge and the defendants now wish to have the leave of the court to make a late lodgment. In my view it would be unfair to the plaintiff to accede to that application. Bona fide settlement negotiations in personal injury actions are often in the best interest of the parties and are to be encouraged. They require candour by all concerned and an exchange of medical reports is part andparcel of the process. It seems to me that if such negotiations are unfruitful, the defendant ought not to be allowed to capitalize on the plaintiff's full disclosure of his or her case as to personal injuries and/or on liability, and to use the information obtained in such negotiations as a measure for calculating what is intended to be a tight lodgment. If, in the absence of special circumstances, defendants were allowed to make or amend lodgments after unsuccessful settlement negotiations of that sort then two undesirable consequences might follow. First, it may cause plaintiffs and their advisers not to expose fully their situation as to personal injuries and/or liability in early settlement negotiations with defendants in case they may find themselves providing the basis for lodgments which might be more dangerous from the plaintiff's point of view than otherwise might have been the case. Secondly, it could encourage some defendants or their indemnifiers to enter into spurious settlement negotiations, the actual purpose of which is to ascertain comprehensive information about the plaintiff's case with a view to making a late lodgment based thereon.

4 There are circumstances where, in fairness to the defendant, the court should exercise its discretion in favour of allowing a late lodgment notwithstanding a full disclosure of the plaintiff's case in course of unsuccessful settlement negotiations. For example, where it emerges for the first time during such negotiations that the plaintiff's injuries, or the sequelae thereof, are more serious than pleaded on his behalf. It is not suggested in the instant case that the plaintiff's injuries have transpired to be different or moreserious than indicated in the particulars pleaded. The only explanation in support of the application put forward by Mr. O'Connor in his grounding affidavit is that he now acts for the second as well as for the first and third defendants and that liability is no longer in issue. The plaintiff's claim against all defendants is that she was savaged by a guard dog as she alighted as a passenger from a Dart train. The dog was on the train in the ostensible care and control of a security guard being an employee of the third defendants. It is not contended that it was ever perceived by Mr. O'Connor or his clients that they or any of them ever had a good defence to the plaintiff's claim. It does not seem to me that there are sufficient grounds for permitting a late lodgment and I refuse the application with costs to the plaintiff.

5 Doc. No. 1124J(JQ)

6 Judgment of Miss Justice Carrolldelivered the 25thday of March 1992.

7 The Plaintiff Mr. Gay Byrne a well known media personality, commenced an action on the 26th of March 1986 against the personal representative of his accountant Charles Russell Murphy (C.R.M.) who died on the 12th of April 1984, and also against seven further Defendants as alleged partners of C.R.M. and against the Institute of Chartered Accountants in Ireland. The amount claimed was £72,000. Judgment in default of defence was given for that amount against the personal representative of C.R.M. on the 20th of June 1988.

8 By Notice of Motion dated the 6th of October 1989 four of the Defendants, Messrs. Raphael Doyle-Kilty, Owen Murphy, Conor Dignan and the present applicant Patrick Campbell,brought this Motion for attachment and committal on the grounds of contempt by Mr. Byrne "in persistently indulging in publicizing his opinions and views on the matters in issue in these proceedings in a manner likely to prejudice the course of justice". That Motion precipitated settlement of the action on the 10th of October 1989 with all of the remaining Defendants except Mr. Campbell and also settlement of this Motion with all the moving parties except Mr. Campbell. As part of the settlement a statement was read to the Court acknowledging that the Defendants who compromised were not partners of C.R.M., were not guilty of improper behaviour and were not guilty of misappropriation of funds. Mr. Campbell refused to compromise. Notice of discontinuance of the action against him was served on the 10th of October 1989.

9 Mr. Campbell has insisted on the contempt Motion being heard. The Motion was issued not only against Mr. Byrne but also against Eanna Brophy, a journalist who worked for the Sunday Press and Michael Keane as Editor of the Sunday Press. All three Defendants filed Affidavits. Mr. Brophy and Mr. Keane came into Court and indicated their apologies if the Court considered contempt had taken place. Mr. Byrne did not.

10 Counsel for Mr. Campbell said that his client did not seek to send Mr. Byrne to prison for contempt but he did seek recognition by the Court of contempt on the part of Mr. Byrne.

11 The particular matters alleged to constitute contempt grounding the Motion are set out in the Affidavit of Mr. Sowman Solicitor for Mr. Campbell. He complains about Mr. Byrne's ability to attract and generate substantial mediacomment in newspapers, radio, T.V. and periodicals and about substantial press comment giving Mr. Byrne's side. The first example he gives concerns the front page of the Sunday Tribune newspaper dated the 20th of December 1987 which carried an article written by Deirdre Purcell with the heading "Gaybo hopes for backing in cash "fraud" campaign". The article said that Mr. Byrne was suing not only the Institute of Chartered Accountants but also four accountants whom he claimed were partners of the late Russell Murphy, all of whom denied the allegation. The article has a number of quotes from Mr. Byrne including "I've no opiton," he added. "If I don't do anything they walk away with it and I'm left in the situation where no one has to do anything".

12 Mr. Campbell's Solicitor acting for him and three other Defendants wrote on the 22nd of December 1987 taking exception to the suggestion that if he (Mr. Byrne) did not act, the moneys he was alleged to have lost would be left with their clients. They asked that the case would be dealt with in the proper way, ultimately in a Court of law and not by a one sided debate laced with unsupported innuendoes. They asked that Mr. Byrne would resist the temptation to use his ability to generate media comments to further his claim.

13 Mr. Byrne's Solicitors replied on the 20th of January 1988 and explained the circumstances of the interview. They said Mr. Byrne had never mentioned their clients but talked in general terms and he could not be held responsible for journalists' interpretation of his conversation nor for the heading. They said he had never sought financial help.

14 The next complaint refers to chapter 7 of Mr. Byrne's autobiography "The Time of My Life" which deals with his involvement with C.R.M.. Mr. Sowman says (at paragraph 6)that following publication it was decided not to take any proceedings on the basis of publication of the book alone inspite of his client's very real resentment at the publicity being sought by the Plaintiff.

15 The next complaint concerns an article which appeared in the Sunday Press on the 1st of October 1989 written by Eanna Brophy under the headline "Gay still suing Russell Murphy's colleagues". The portions of the article singled out by Mr. Sowman are as follows:-

"The broadcaster told the Sunday Press that the outspoken comments he makes in his book do not in any way out across the legal process.... I fully intend to go ahead with the case, he said, although it is still causing me a great deal of annoyance andaggravation."

16 (The article then detailed the elements of the case naming theDefendants).

17 "Mr. Byrne said that the case is "still pending" and that no High Court date has yet been set for hearing. "The legal eagles are still arguing back and forth" he said.

"His contention is that the accountants named in the writ should have known what Russell Murphy was doing over the period of eight years, during which Mr. Byrne's money (and that of other clients, including Hugh Leonard), went missing. Their defence is that they were not partners, but mere employees of their firm."

"But their names appeared as partners on the firm'sletter-heads" Mr. Byrne alleges "and they were registered as partners with the Institute of Chartered...