C (N) v McG (P) and Others

JurisdictionIreland
JudgeMr. Justice McCarthy
Judgment Date18 September 2009
Neutral Citation[2009] IEHC 438
CourtHigh Court
Date18 September 2009

[2009] IEHC 438

THE HIGH COURT

[No. 9144P/2000]
C (N) v McG (P) & Ors

BETWEEN

N.C. (A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HER MOTHER AND NEXT FRIEND M.C.)
PLAINTIFF

AND

P.McG., G.C., K.M., C.M., THE MINISTER FOR EDUCATION, THE MID-WESTERN HEALTH BOARD, IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR HEALTH AND CHILDREN
DEFENDANTS

O'KEEFFE v HICKEY & ORS UNREP SUPREME 19.12.2008 2008/50/10575 2008 IESC 72

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

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

R (J) v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2007 2006/49/10426 2007 IESC 7

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

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

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

BRENNAN v FITZPATRICK UNREP SUPREME 23.11.2001 2001/2/430

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

DESMOND v MGN LTD UNREP SUPREME 15.10.2008 2008/11/2410 2008 IESC 56

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

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

PRACTICE AND PROCEDURE

Strike out

Want of prosecution - Plaintiff minor and of unsound mind - Alleged delay generally in prosecution of claim - Applicable legal principles - Whether delay inordinate and inexcusable - Onus of establishing delay on party seeking to dismiss proceedings - Relevant factors to take into account - Discretion - Balance of justice - Inherent jurisdiction - Interests of justice - Basic fairness of procedures- Conduct of defendant - Prejudice - Whether each case must depend on its own circumstances - Complexity of case - Whether any justification in awaiting outcome of criminal trial - Whether higher obligation of expedition from disposition of criminal proceedings onwards because of late institution of proceedings - Whether delay excusable - Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290 followed; Stevens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, HC, Clarke J, 28/4/2005 ) approved; O'Keeffe v Hickey [2008] IESC 72, [2009] 2 IR 302; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 4; JR v Minister for Justice [2007] IESC 7, (Unrep, SC, 1/2/2007) and McMullen v Ireland (Unrep, ECHR, 29/7/2004) considered; Manning v Benson and Hedges Ltd [2004] IEHC 316, [2004] 3 IR 556; O'Connor v John Player and Sons Ltd [2004] 2 ILRM 321; Enwyns v Independent Newspapers [2003] 1 IR 583; Brennan v Fitzpatrick (Unrep, SC, 21/11/2001); Byrne v Minister for Defence [2005] IEHC 147, [2005] 1 IR 577 and Desmond v MGN Ltd [2008] IESC 56, (Unrep, SC, 15/10/2008) distinguished - European Convention on Human Rights Act 2003 (No 20), s 4 - European Convention for the Protection of Human Rights and Fundamental Freedoms, article 6(1)- Application refused (2000/9144P - McCarthy J - 18/9/2009) [2009] IEHC 438

C (N) v McG (P) and others

Facts: The first named defendant sought to strike out the claim of the plaintiff for want of prosecution due to the failure to set down the action. The plaintiffs were mentally handicapped to various degrees and the first plaintiff alleged that she had been the victim of sexual abuse in particular in 1996 and 1997 by a teacher. The issue arose as to whether the delay was inordinate and inexcusable and where the balance of justice lay. Difficulties had been encountered in obtaining discovery.

Held by McCarthy J. that the case was a matter of great complexity on account of the plaintiffs being persons of unsound mind. This was a marginal case. There was no doubt but that the delay was excusable and the balance of justice favoured the plaintiff proceedings. The particular facts of the case excused the delay. The first defendant had failed to discharge the burden of proof on him.

Reporter: E.F.

1

Judgment of Mr. Justice McCarthy dated the 18th day of September 2009

2

1. This is an application by the first defendant, made by notice of motion dated 10 th October, 2007, to strike out the plaintiff's claim for want of prosecution, due to the plaintiff's failure to set the matter down for trial; the matter was proceeded with not merely on the basis a failure to set the action down but also on the basis of alleged delay generally in terms of its prosecution. The principal grounding affidavit is that of Mr. John Devane, Solicitor for the first defendant sworn on the same day. The notice of motion was made returnable for the 17 th December, 2007 and was adjourned from time to time due to the exigencies of the list until ultimately heard. The principal replying affidavit is that of Mr. Glen Cooper, of Dundon Carolan, solicitors for the plaintiff, sworn on 17 th December, 2007 and further affidavits by both solicitors, with one sworn by the plaintiff, the last being that of Mr. Cooper of 30 th January, 2009 have been sworn. There are also before the court motions issued by the first defendant for leave to amend his defence for the purpose of pleading the statutes of limitation and a motion issued by the plaintiff for directions as to the management hereafter of the action. Of course the latter are relevant only if the relief now sought by the first defendant is refused.

3

2. This is one only of a number of similar or related actions. Those which are similar are the actions of N.G., M.R. and A.O'M., (all of whom are also persons of unsound mind, not so found, and who also sue by their mothers and next friends, B.G., L.R. and E.O'M., respectively. There are five additional actions which are related, namely, those of M.C., B.G. and L.R. (mothers and next friends as aforesaid) and those of P.O'M. and E.O'M. (husband and wife and the latter of whom is, as aforesaid, a mother and next friend, also). It seems to me clear that the present and the three similar actions are on all fours so far as this motion is concerned and similar motions have been issued in all nine. The focus at the hearing was upon the present and similar actions (i.e. the children's cases). There is no substantial disagreement between the parties that the disposition of the three other primary cases must be same as the present one, in due course. Different considerations may apply to those of the parents. No separate argument was considered so far as they are concerned and I will of course, in so far as the parties may require hear them further: prima facie, however, it would appear that the point made on their behalf that their actions must follow, in point of time, those of their children, would appear to be well made having regard to their nature.

4

3. I have been furnished by counsel for the plaintiff with a chronology of events in terms of the pleadings and proceedings, which I set out hereunder:-

CHRONOLOGY
5

· 4th August 2000: Plenary Summons issued.

6

· 30th August 2000: Appearance by State Defendants.

7

· 28th September 20400: Appearance by School Defendants.

8

· 14th June 2001: Letter to John Devane Solicitor requesting that he file Appearance on behalf of P.McG..

9

· 30th July 2001: Filed Notice of Motion for Judgment in Default of Appearance by P.McG..

10

· 31st July 2001: Order renewing the Plenary Summons for six months.

11

· 5th September 2001: Appearance by Mid-Western Health Board.

12

· 22nd October 2001: Hearing of Notice of Motion for Judgment in Default of Appearance by P.McG..

13

· 25th February 2002: Order for substituted service upon. the second named Defendant G.C. by delivery to John Devane

14

· 27th November 2002: Entry of Appearance on behalf of P.McG..

15

· 5th December 2002: P.McG. files motion to strike out for failure to deliver Statement of Claim

16

· 21st February 2003: Hearing of P.McG.'s motion to strike out for failure to deliver Statement of Claim

17

· 6th March 2003: Statement of Clam delivered

18

· 15th April 2003: P.McG. Notice for Particulars

19

· 28th May 2003: School's Notice for Particulars.

20

· 12th January 2004: P.McG.'s motion to strike our claims for failure to reply to particulars

21

· 29th January 2004: Plaintiffs Replies to P.McG.'s particulars.

22

· 29th January 2004: Plaintiffs replies to School's Notice for Particulars. 26th February 2004: Defence by P.McG..

23

· 27th February 2004: Demand letters for Defence to School, Health Board and State

24

· 3rd June 2404: Further demand letters for Defence to School, Health Board and State

25

· 30th June 2004: Further demand letters for Defence to School, Health Board and State

26

· 30th July 2004: Defence by School.

27

· 28th October 2004: Filed Notice of Motion in Default of Defence against the State and Health Board

28

· 22nd November 2004: Hearing of Notice of Motion in Default of Defence against the State and Health Hoard

29

· 31st January 2005: Health Board Defence received.

30

· 28th February 2005: Filed Notice of Motion in Default of Defence against the State.

31

· 14th March 2005: Hearing of Notice of Motion in Default of Defence against the State.

32

· 14th March 2005: Defence delivered by the State Defendants.

33

· 15th March 2006: Notice requesting voluntary discovery from the School and the Health Board.

34

· 31st March 2006: Health Board refuses to make voluntary discovery 4th April 2006: School states it is taking instructions

35

· May 2006: Attempt to file Notice of Motion for discovery, but problems with solicitors on record in Central Office

36

· 8th June 2006: Notice of Change of Name of Solicitor delivered by the Solicitors for the Plaintiff.

37

· 27th June 2006: Appearance on behalf of the School re-filed.

38

· 5th September 2406: filed Notice of Motion for Discovery, against the School and the Health Board.

39

· 30th November 2006: Motion for discovery...

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3 cases
  • McNamara v Irish Life Assurance Plc
    • Ireland
    • High Court
    • 6 July 2017
    ...of the defendant that there is no precise point in time by which delay can be said to have become ‘ inordinate’, referring to NC v. PMcG [2009] IEHC 438 and Delaney & McGrath, Civil Procedure in the Superior Courts, 3rd Ed. (Dublin, 2012) at para. 15–12. 69 The defendant argues that the fac......
  • Maxwell v Irish Life Assurance Plc
    • Ireland
    • High Court
    • 7 March 2018
    ...answer to the question: what constitutes an inordinate delay in the prosecution of proceedings? As McCarthy J explained in NC v PMcG [2009] IEHC 438 (at para. 17), whether inordinate delay arises is a mixed question of fact and law dependent upon the circumstances of each case. 37 The defen......
  • Promontoria (Aran) Ltd v O'Connor
    • Ireland
    • High Court
    • 21 December 2017
    ...requires the dismissal of the proceedings. Cases on the inordinacy of delay, to which the court has had regard, include NC v. PMcG [2009] IEHC 438, Morrissey v. Analog Devices BV [2007] IEHC 70, O'Connor v. John Player and Sons Ltd [2004] 2 ILRM 321, and Connolly's Red Mills v. Torc Grain a......

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