Corkery v Marine Motors Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] IEHC 217 |
| Docket Number | Record No. 2014/4029P |
| Court | High Court |
and
[2023] IEHC 217
Record No. 2014/4029P
THE HIGH COURT
JUDGMENT of Mr. Justice Mark Heslin delivered on the 28th day of April 2023
. The second, third and fourth named defendants (the “BRP defendants”) issued a motion on 7 February 2022, which was initially returnable for 25 April 2022, seeking, inter alia the following relief:
-
1. an order dismissing the plaintiff's claim for want of prosecution due to the inordinate and inexcusable delay in the prosecution of these proceedings;
-
2. an order pursuant to Order 122, Rule 11 of the Rules of the Superior Courts (“RSC”) 1986 (as amended) dismissing the plaintiff's claim for want of prosecution
. Order 122, r. 11 of the RSC provides that where there has been no proceeding for two years, a defendant may apply to this Court to dismiss the claim for ‘want of prosecution’. On the hearing of such an application, this Court may order that the matter be dismissed, or may make such other order as the Court deems just.
. The approach which this Court should take to an application to dismiss on delay grounds is well-known. The touchstone remains the decision of the Supreme Court in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459. Almost a quarter of a century later, in AIG v. Fitzpatrick [2020] IECA 99 the Court of Appeal (Whelan J.) confirmed that:
“ …the principles applicable in any consideration of an application to strike out proceedings on grounds of delay which occurs post-commencement are set out in the leading Supreme Court decision of Primor Plc v. Stokes Kennedy Crowley” (see para. 16)
. The test as outlined by Hamilton CJ in Primor is as follows:-
“ The principles of law relevant to the consideration of the issues raised in this Appeal may be summarised as follows:-
(a) the Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the Court is entitled to take into consideration and have regard to:
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case are such as 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,
(iii) any delay on the part of the defendant because litigation is a two party operation the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.” (see pp. 475, 476)
. Primor essentially lays down a 3-part test, in that this Court must ask:
(1) is the delay inordinate?;
(2) is the delay inexcusable?; and
(3) if the delay is both inordinate and inexcusable, is the balance of justice in favour of, or against, the case being allowed to proceed?
. An alternative strand of jurisprudence derives from the decision in O'Domhnaill v Merrick [1984] I.R. 151 (see also Toal v Duignan (No.1) and (No.2) [1991] ILRM 135 [1991] ILRM 140), establishing a jurisdiction to dismiss a claim where the interests of justice require this, in particular, when the delay is likely to result in an unfair trial. In essence, the focus of the O'Domhnaill approach or ‘test’ is far less about culpability for delay, but on the core question of risk to a fair trial. As stated in McBrearty v North Western Health Board & Ors. [2010] IESC 27 “ Whilst frequently concerned with pre-proceedings delay, in fact, the test is not fault based but is rather focussed on the risk of an unfair trial”. Appropriate questions for this Court to ask ( per the O'Domhnaill approach) were set out in the Supreme Court's decision (McKechnie J) in Comcast International Holdings Incorporated v. Minister for Public Enterprise [2012] IESC 50 (at para. 40) as follows:-
“(i) Is there a real and serious risk of an unfair trial, and/or of an unjust result;
(ii) Is there a clear and patent injustice in asking the defendant to defend; or
(iii) Does it place an inexcusable and unfair burden on such defendant to so defend?”
. Before proceeding further, I wish to express my sincere thanks to Mr. Howard SC who moved the application on behalf of the BRP defendants, and to Mr. Sreenan SC, who opposed it on the plaintiff's behalf. Both made oral submissions with skill and clarity. Both also provided the Court with detailed written submissions which were of great assistance. Nothing I say in this judgment takes away from the foregoing. However, the outcome of this application falls to be determined, not by submissions, but by the very particular facts of the present case examined against well established principles.
. There was no material dispute between learned counsel as to the appropriate legal principles, so recently set out with clarity in the Court of Appeal's decision of 28 October 2022 in Cave Projects Ltd. v. Gilhooley & Ors. [2022] IECA 245 (in particular, paras. 35–37). This Court's judgment has been guided by those principles. However, a central theme in the authorities is that each case is unique and must be assessed as such. Thus, regardless of how skilfully made, submissions must yield to facts. For this reason, the focus of the Court's judgment is on the facts which I now propose to look at in chronological order.
. It was submitted on behalf of the BRP defendants that the plaintiff is guilty of pre-commencement delay and that all three elements of the Primor test are met. Whether this is so, requires a careful consideration of the pleadings and the evidence, comprising the affidavits sworn in the context of this motion together with the exhibits thereto. That careful consideration produces the following chronology (and, in addition to dates used as headings, certain dates have been underlined in the following text, for the sake of clarity).
. According to his pleaded claim, the relevant accident occurred on 9 June 2012. Briefly put, the plaintiff claims that, on 9 June 2012, he was using a rigid inflatable boat (“RIB”) which was fitted with an engine purchased, in about 2007, by the plaintiff from the first named defendant. The plaintiff asserts that, towards the end of his day's outing, when at sea, he became aware that the “kill cord” on the engine was not working. He claims that, when travelling in conditions described as calm to light waves, the RIB appeared to hit an object in the water and went into a turn. He asserts that he was thrown from the RIB into the sea and that the RIB continued running, travelling in an approximate 50m turning-circle, and struck the plaintiff on numerous occasions, as a result of which he sustained personal injuries. Among the injuries for which the plaintiff seeks compensation is “ a traumatic amputation of his left arm above the elbow”; as well as shock; anxiety; depression; phantom pain around the left stump; pain going down his right shoulder; and gross disruption of social, domestic, and vocational life, in addition to adverse impact on family relationships. The plaintiff also pleads that he can no longer work in the normal way as a self-employed plumber, and he seeks damages for loss of earnings. I will presently make reference to the personal injuries summons in which the foregoing is pleaded.
. At para. 6 of his 11 April 2022 affidavit, the plaintiff's solicitor, Mr Boland makes the following under to averments: “ The plaintiff had suffered life-threatening injuries and had almost died as a result of the incident herein. He was hospitalised for a considerable period initially.” I refer to the foregoing because it seems to me to be relevant to the question of when the plaintiff first gave instructions to a solicitor. The present case is not one where, for example, a plaintiff was unfortunate enough to sustain soft tissue injuries in a road traffic accident which, although painful, would not prevent their attendance at a solicitor's office soon after the index event. The circumstances in the present case are utterly different and it seems to me that it would be entirely unfair, given the nature and seriousness of the injuries sustained by the plaintiff, to criticise him for not...
To continue reading
Request your trial