Cox v Massey

• Jurisdiction: Ireland
• Judgment Date: 07 March 1969
• Date: 07 March 1969
• Docket Number: [1964. No. 1020 P.]
• Court: Supreme Court

Cox v. Massey

BRIAN COX

Plaintiff

and

ARTHUR E. MASSEY

Defendant.

[1964. No. 1020 P.]

Supreme Court

Practice - Time limit - Extension - Notice of trial by judge - Form - Expiration of period allowed for service of counter-notice of trial by judge and jury - - Delay - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 36,rr. 6, 15; Or. 108, r. 7 - Courts of Justice Act, 1924 (No.. 10 of 1924), s. 94.

The plaintiff claimed damages from the defendant for personal injuries suffered by the plaintiff by reason of an alleged negligent act of the defendant on the 29th May, 1961. The plaintiff issued his plenary summons on the 27th May, 1964; he delivered his statement of claim on the 7th December, 1967, and then failed to furnish particulars of his claim until a further year had elapsed.

On the 5th December, 1968, the defendant served notice of the trial of the action by a judge alone. On the 13th January, 1969, the plaintiff served notice of his motion for an order of the High Court extending the period of time allowed for service of a counter-notice of the trial of the action by a judge and a jury. The plaintiff's motion was dismissed because of the great delay by the plaintiff and also on the ground that a trial of the action by a judge alone would be more satisfactory in view of the fact that the trial would involve a consideration of the old "third question" of liability which had been rendered obsolete by the Civil Liability Act, 1961, except for causes of action which had arisen before the 17th August, 1961. On appeal by the plaintiff it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J. and Walsh J.; FitzGerald J. dissenting), in allowing the appeal, 1, that the relevant period to be considered was the period subsequent to the expiration on the 9th December, 1968, of the four days allowed to the plaintiff for service of his counter-notice; and that since that date there had been no unreasonable delay by the plaintiff.

2. That the plaintiff's motion for the required extension should not be refused either on the ground of the difficulty that witnesses might experience in recollecting the relevant events or on the ground that a jury would be an inappropriate tribunal of fact in the circumstances.

Appeal from the High Court.

On the 5th December, 1968, the defendant served notice of trial by a judge alone. The notice did not contain a reference to the consequence of the plaintiff failing to serve a counter-notice of trial within four days, which reference appears on Form 18 of Appendix C to the Rules of the Superior Courts, 1962.

Order 36, rr. 5 and 6, of the Rules of 1962 provide as follows:—

"5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise order.

6. In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within four days from the service of ordinary notice of trial, or within two days from the service of short notice of trial, or within such extended time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried."

The plaintiff issued a motion on the 13th January, 1969, seeking an order for the extension of the period allowed by Order 36, r. 6, for service of his counter-notice of trial. The plaintiff's motion was heard and refused by the High Court (Henchy J.) on the 20th January, 1969, and he appealed to the Supreme Court.

Section 34 of the Civil Liability Act, 1961, provides for the reduction of damages recoverable by a plaintiff where his injury was caused partly by his own negligence and partly by the negligence of the defendant.

Section 56 of the Act of 1961 enacts that:—

"56.—For the purposes of subsection (1) of section 34 . . . the fact that any person—

• (a) had an opportunity of avoiding the consequences of the act of any other person but negligently or carelessly failed to do so, or

• (b) might have avoided those consequences by the exercise of care, or

• (c) might have avoided those consequences but for previous negligence or want of care on his part,

• shall not, by itself, be a ground for holding that the damage was not caused by the act of such other person."

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

This appeal is against an order of Mr. Justice Henchy dated 20th January, 1969, refusing a motion brought by the plaintiff for an order extending the time for the service by the plaintiff upon the defendant of a notice in writing of the plaintiff's desire to have the action tried with a jury, notwithstanding notice of trial already served by the defendant on the plaintiff.

The defendant's notice of trial of the action by a judge without a jury is dated 5th December, 1968. Order 36, r. 6, of the Rules of the Superior Courts, 1962, required that the plaintiff (within

four days from the service of such notice, or within such extended time as the court might allow) should signify his desire by notice in writing to have the action tried by a jury. In terms of dates, the plaintiff should have served his counter-notice on the defendant...