Costello v MacGeehin P/A MacGeehin Toale Solicitors

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] IEHC 442
• Court: High Court
• Docket Number: 2015 / 3343 P

Between

Judi Costello

Plaintiff

and

Colm MacGeehin, Lillian Nagle and Brendan Toale Practicing Under the Style and Title of MacGeehin Toale Solicitors

Defendants

[2022] IEHC 442

2015 / 3343 P

THE HIGH COURT

Damages – Inordinate and inexcusable delay – Balance of justice – Defendants seeking an order striking out/dismissing the plaintiff’s claim for inordinate and inexcusable delay – Whether the balance of justice favoured the continuance of the proceedings

Facts: The plaintiff, Ms Costello, issued a plenary summons in which she made a claim against the defendants, Mr MacGeehin, Ms Nagle and Mr Toale, for damages to include aggravated damages, for negligence, breach of contract, breach of duty (including breach of statutory duty), misrepresentation, fraudulent concealment, and deceit, as well as interest and costs. By motion dated 22 April, 2021 the defendants sought the following orders: (i) an order striking out/dismissing the plaintiff’s claim for inordinate and inexcusable delay pursuant to the inherent jurisdiction of the High Court; (ii) alternatively, an order striking out/dismissing the plaintiff’s claim for inordinate and inexcusable delay pursuant to O. 122, r. 11 of the Rules of the Superior Courts.

Held by Heslin J that, on the facts of the case, countervailing circumstances tipped the balance in favour of the claim being allowed to proceed, including: (i) the pre-commencement delay for which the defendants were, for the purposes of the application, exclusively responsible; (ii) the defendants’ post-commencement delay of at least a year; (iii) the nature of the case; (iv) what was at stake for the plaintiff; (v) the absence of any evidential deficit; (vi) the availability of extensive records and report; (vii) the absence of any prejudice, specific or presumed; and (viii) the fact that the case was ready to be set down for trial. Having considered all relevant matters and been guided by the principles which emerged from Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, he held that the balance of justice decidedly favoured the case being allowed to proceed. Thus, even if he was wrong in holding that the plaintiff’s delay was excusable (he was satisfied that the defendants had not discharged the relevant onus of proof in that regard), he took the view that the plaintiff had demonstrated that the balance of justice favoured the continuance of the proceedings. He held that the plaintiff’s delay could be described as inordinate but he was satisfied that the second and third limbs of the Primor test had not been satisfied; thus, the defendants’ application fell to be dismissed.

Heslin J held that the plaintiff had been entirely successful and his preliminary view was that the justice of the situation was met by not departing from the ‘normal’ rule that ‘costs’ should ‘follow the event’.

Application dismissed.

Judgment of Mr. Justice Mark Heslin delivered on the 23 ^rd day of June, 2022

Introduction

1 . By motion dated 22 April, 2021 the Defendants sought the following orders:

• i. An order striking out/dismissing the Plaintiff's claim for inordinate and inexcusable delay pursuant to the inherent jurisdiction of the court;

• ii. Alternatively, an order striking out/dismissing the Plaintiff's claim for inordinate and inexcusable delay pursuant to O. 122, r. 11 of the Rules of the Superior Courts.

2 . That application was grounded on the affidavit sworn by Mr. Ruadhán MacAodháin, solicitor. A replying affidavit was sworn by the Plaintiff on 7 February, 2022. I have carefully considered the contents of both affidavits and the exhibits referred to therein. No other affidavits were sworn in respect of the present motion.

3 . O. 122, r. 11 of the Rules of the Superior Courts (“RSC”) provides that, where there has been no proceeding for a period of two years, a Defendant may apply to the court to dismiss a Plaintiff's claim for want of prosecution. On hearing such an application, the court may order the matter to be dismissed or may make such other order as to the court seems just. The authorities in this area are well known and there are two overlapping streams of jurisprudence stemming from the Supreme Court's decisions in O'Domhnaill v. Merrick [1984] IR 151 and in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459. It is appropriate to consider the present application through the lens of Primor and the principles laid down in that decision.

4 . Although I will return to Primor later in this judgment, it is sufficient for present purposes to say that Primor essentially lays down a three-part test, in that the court must ask (i) is the delay inordinate? (ii) is the delay inexcusable? (iii) if the delay is both inordinate and inexcusable, is the balance of justice in favour of, or against, the case being allowed to proceed?

5 . There is no dispute between the parties that the foregoing represents an appropriate approach for this Court to take.

Certain relevant facts in chronological order

6 . The Plaintiff is a businesswoman whereas the Defendants comprise a firm of solicitors.

7 . The Plaintiff claims that, on or about 11 July, 2005 she suffered an injury to her left ankle as a result of a “trip and fall” outside the premises of a Mr. Ken McMahon. The Plaintiff alleges that she tripped and fell over a piece of masonry which fell onto the footpath as a result of building works being carried out by Mr. McMahon at his property.

8 . It is not in dispute that the Plaintiff retained the Defendants to act for her, arising out of the aforesaid trip and fall.

9 . The Plaintiff maintains that she suffered severe personal injury, loss, damage, inconvenience and expense arising out of negligence on the part of Mr. McMahon in, inter alia, creating a hazard and failing to exercise reasonable care.

10 . The Defendants acknowledge that they were retained by the Plaintiff in or about the month of July, 2005, to act on her behalf for the purpose of providing legal advice and initiating and maintaining carriage of legal proceedings arising from the accident which befell the Plaintiff on or about 11 July, 2005.

11 . It does not appear to be at all in dispute that the proposed proceedings were covered by the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”). For the purposes of the present application, it does not appear to be in dispute that the Defendants failed to lodge the Plaintiff's claim with the Personal Injuries Assessment Board (“PIAB”) and failed to issue any legal proceedings on behalf of the Plaintiff within the time-limit provided for by the Statute of Limitations Act 1957 (“the Statute”).

12 . At para. 5 of the Plaintiff's affidavit, sworn on 7 February, 2022, she makes, inter alia, the following averment as regards the injury suffered by her on 11 July, 2005:

“I say that I suffered a severe pain, swelling, oedema, skin changes and pain in the region of my ankle and was diagnosed with complex regional pain syndrome in or around early August 2005 by Dr. Declan O'Keeffe, consultant anaesthetist and pain specialist”.

13 . In circumstances where no replying affidavit has been furnished on behalf of the Defendants, the foregoing averment is uncontroverted. Furthermore, the Plaintiff's averment appears to be entirely consistent with para. 15 of the Defence delivered in the present proceedings on 19 January, 2016 wherein the Defendants make the following plea:-

“15. On 13 October, 2010 Dr. O'Keeffe responded stating that he had diagnosed the Plaintiff with CRPS ‘around the time of her accident on the date in question which was 11 July, 2005’”.

14 . It does not appear to be in dispute, for the purposes of the present motion, that the Plaintiff attended the Merrion Medical Clinic and the accident and emergency department of St. Vincent's Hospital Dublin for treatment in July and in August 2005.

15 . At paras. 7 and 8 of her affidavit sworn on 7 February, 2022 the Plaintiff makes the following averments:-

“7. I say and believe that the Defendants were negligent, in breach of contract and in breach of duty by failing to lodge my claim with the Personal Injuries Assessment Board, failed to obtain the appropriate medical reports prior to the expiration of the statutory time limit and further failed to issue the proceedings within the time limit provided by the Statute of Limitations Act 1957, thereby causing or permitting my claim to become statute barred. I further say and believe that between November 2007 and July, 2013, I contacted the Defendants by email, post, telephone and person at their offices on numerous occasions to discuss my personal injury case and the progress of same. I say and believe and as can be seen at para. 14 of the statement of claim, the Defendants made a number of false representations to this deponent concerning the status of my personal injuries case, inter alia, as follows:-

• — That the case was not statute barred;

• — That the case was progressing as normal;

• — That the claim had been lodged with the PIAB;

• — That the relevant medical reports had been obtained;

• — That there would be difficulty in establishing a causal link between the incident and a diagnosis of complex regional pain syndrome;

• — That the delay in the case was due to the difficulty in proving that my injuries were attributable to the incident in July, 2005;

• — That the medical reports obtained did not state that my diagnosis of CRPS was attributable to the incident;

• — That there was insufficient evidence to mount a claim against Ken McMahon;

• — That my claim was not worthwhile.

8. I say that on 22 ^nd July, 2013 the Defendants wrote to this deponent to advise that there were no proceedings relating to the incident in being, that my case was statute barred and that they would be returning papers to me. I say and believe that this was on the date, almost eight years after my trip and fall...