Carroll v Seamus Kerrigan Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 03 March 2017
• Neutral Citation: [2017] IECA 66
• Date: 03 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 66 Appeal No. 2016/201

BETWEEN/

CHARLES CARROLL

PLAINTIFF / APPELLANT

- AND -

SEAMUS KERRIGAN LIMITED

FIRST NAMED DEFENDANT

- AND -

MICHAEL CRAWFORD (TRADING UNDER THE STYLE AND TITLE OF MICHAEL CRAWFORD AND CO. SOLICITORS)

SECOND NAMED DEFENDANT / RESPONDENT

[2017] IECA 66

Irvine J.

Irvine J.

Sheehan J.

Hogan J.

Neutral Citation Number: [2017] IECA 66

Appeal No. 2016/201

THE COURT OF APPEAL

Inordinate and inexcusable delay – Negligence – Personal injuries – Appellant seeking damages for negligence – Whether appellant’s claim should have been dismissed on the grounds of inordinate and inexcusable delay

Facts: The plaintiff/appellant, Mr Carroll, allegedly sustained an injury while in the employ of the first defendant, Seamus Kerrigan Ltd, on the 25th January, 2001. He maintained that on that date he was struck in the jaw by a pellet from an air rifle discharged by a fellow employee. When he commenced his proceedings by personal injuries summons on the 1st April, 2008, Mr Carroll claimed negligence on the part of his employer for permitting a loaded air rifle to be present on its premises and in allowing it to be deployed by a fellow employee. Fearful of the possibility that his action against his employer had become statute barred, he also joined as a second defendant to the proceedings Mr Crawford, the respondent, on the basis that he was negligent in failing to issue the proceedings against his employer, so as to ensure that his claim for personal injuries was not defeated by virtue of the application of the provisions of the Statute of Limitations. By order of the High Court made on 21st January, 2011, his claim against his employer was dismissed on the grounds that the claim was statute barred. By notice of motion issued on the 31st March, 2014, the respondent brought a motion to dismiss the appellant’s claim for want of prosecution or alternatively on the grounds of inordinate and inexcusable delay. That application was heard by Cross J on the 28th July, 2014, at which stage the Court held that Mr Carroll had been guilty of inordinate and inexcusable delay in the manner in which he had progressed his action. However Cross J, having considered the affidavit sworn on behalf of Mr Carroll, was satisfied that the balance of justice nonetheless favoured permitting the action to proceed to trial and declined the relief sought. By notice of motion dated the 23rd December, 2015, the respondent then brought its second application to dismiss the claim for want of prosecution under O. 36, r. 12 of the Rules of the Superior Courts 1986 and in the alternative pursuant to the court’s inherent jurisdiction on the grounds of inordinate and inexcusable delay. By the order of O’Regan J made on the 11th April, 2016, Mr Carroll’s claim was dismissed for inordinate and inexcusable delay. The appellant appealed to the Court of Appeal against the order of O’Regan J. The appellant accepted that the delay was inordinate but he did not accept that it was inexcusable.

Held by Irvine J that, having regard to (i) the finding of Cross J in July, 2014 that Mr Carroll was guilty of inordinate and inexcusable delay in the manner in which he had progressed his proceedings, (ii) Mr Carroll’s solicitor’s promise to progress the proceedings thereafter with all due expedition, (iii) the failure on the part of Mr Carroll to take any step to progress his action between August, 2014 and December, 2015 and (iv) the failure on the part of Mr Carroll to advance any countervailing circumstances which might reasonably absolve him of that delay, she was satisfied that the trial judge was correct when she determined that the balance of justice favoured the dismissal of the proceedings.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 3rd day of March 2017

1 This is the plaintiff's appeal against the order of the High Court (O'Regan J.) made on 11th April, 2016, whereby she dismissed the within proceedings against the second named defendant, on the grounds of inordinate and inexcusable delay.

2 The proceedings arise out of an injury allegedly sustained by the plaintiff (‘Mr. Carroll’) while in the employ of the first named defendant on the 25th January, 2001. He maintains that on that date he was struck in the jaw by a pellet from an air rifle discharged by a fellow employee.

3 When he commenced his proceedings by personal injuries summons on the 1st April, 2008, Mr. Carroll claimed negligence on the part of his employer for permitting a loaded air rifle to be present on its premises and in allowing it to be deployed by a fellow employee, Mr. Rory Fallon. Fearful of the possibility that his action against his employer had become statute barred, he also joined as a defendant to the proceedings Michael Crawford (trading under the style and title of Michael Crawford and Co. Solicitors), on the basis that he was negligent in failing to issue the proceedings against his employer, so as to ensure that his claim for personal injuries was not defeated by virtue of the application of the provisions of the Statute of Limitations. His concerns in this regard were well founded in that by order of the High Court made on 21st January, 2011, his claim against his employer was dismissed on the grounds that the claim was statute barred.

4 For the purposes of the within proceedings Mr. Carroll retained the services of Damien Tansey Solicitor, of Damien Tansey and Associates, Sligo. The respondent has at all times been represented by Patrick McEllin & Son of Claremorris, Co. Mayo.

5 It is unnecessary to rehearse in any great detail the facts deposed to in the affidavits which were before the High Court at the time it dismissed Mr. Carroll's claim against the respondent, Mr. Crawford. However, the following chronology sets out the dates which are most material to the decision of the High Court under consideration on this appeal.

The chronology

25 th January 2001: Mr. Carroll injured at work

1 st March 2002: Mr. Carroll moves to the U.S.A.

March 2005: Mr. Damien Tansey comes on record for Mr. Carroll

12 th July 2006: Mr. Carroll returns from the U.S.A.

1 st April 2008: Personal injury summons issues

17 th June 2008: Respondent enters an appearance

24 th July 2008: Respondent's notice for particulars

1 st December 2008: Replies to particulars

17 th April 2009: Defence delivered

11 th March 2010: Appellant sets the case down for trial

21 st January 2011: Appellant's claim against the first named defendant dismissed

1 st October 2013: Notice of trial struck out as no appearance by the appellant at the call over.

31 st March 2014: Respondent issues motion to dismiss for delay.

28 th July 2014: Respondent's motion refused.

Directed to set the case down and progress with expedition

30 th January 2015: Mr. Carroll's solicitor, Mr. Damien Tansey, leaves Callan Tansey solicitors.

2 nd February 2015: Respondent's solicitor writes to Mr. Carroll's solicitors enquiring as to when they propose filing a certificate of readiness and seeking a hearing date.

21 st October 2015: Respondent issues a notice of intention to proceed.

23 rd December 2015: Respondent issues second motion to dismiss for delay.

6 As is apparent from the aforementioned chronology, by notice of motion issued on the 31st March, 2014, the respondent brought a motion to dismiss the appellant's claim for want of prosecution or alternatively on the grounds of inordinate and inexcusable delay. That application was heard by Cross J. on the 28th July, 2014, (‘the 2014 motion’) at which stage the Court held that Mr. Carroll had been guilty of inordinate and inexcusable delay in the manner in which he had progressed his action. However Cross J., having considered the detailed affidavit sworn by Mr. Tansey on behalf of Mr. Carroll, was satisfied that the balance of justice nonetheless favoured permitting the action proceed to trial and declined the relief sought. It is however pertinent to note that at paragraph 10 of his affidavit, sworn for the purpose of resisting the application to have his client's proceedings dismissed, Mr. Tansey stated as follows:-

‘I further say and confirm that in the event that the reliefs sought by the said Defendant being refused, the Plaintiff shall proceed with all due expedition and shall ensure that the within proceedings obtain a hearing date as soon as is reasonably possible.’

7 This assurance notwithstanding, the plaintiff nonetheless took no further steps in the matter, despite having survived the earlier strike out motion. By notice of motion dated the 23rd December, 2015, the respondent then brought its second application to dismiss the claim for want of prosecution under O. 36, r. 12 of the Rules of the Superior Courts 1986 and in the alternative pursuant to the court's inherent jurisdiction on the grounds of inordinate and inexcusable delay.

8 As has already been made clear by the order of O'Regan J. made on the 11th April, 2016, Mr. Carroll's claim was dismissed for inordinate and inexcusable delay. The High Court judge expressed herself satisfied that the delay in the prosecution of the proceedings was such as to ‘put justice to the hazard’ and that in such circumstances the justice of the case warranted the dismissal of the claim against the respondent.

Submissions

9 Mr. Mulloy S.C., on behalf of the appellant, accepts that the appellant's delay was inordinate but he does not accept that it was inexcusable. The fact that Cross J. made such a determination in July, 2014 does not bind this Court. It is entitled to make its own assessment as to whether the delay was inexcusable. Some allowance, he submits, should be made for the fact that Mr. Tansey left the partnership of Callan Tansey in January, 2015 and his vast caseload had to be reassigned. However, if this Court is...