Crowley v Roche Products (Ireland) Ltd and Others

• Jurisdiction: Ireland
• Judge: Master of the High Court
• Judgment Date: 20 January 2006
• Neutral Citation: [2006] IEHC 6
• Judgment citation (vLex): [2006] 1 JIC 2001
• Court: High Court
• Date: 20 January 2006

[2006] IEHC 6

THE HIGH COURT

[No. 13418P/2001]

CROWLEY v ROCHE PRODUCTS (IRELAND) LTD & ORS

BETWEEN

DEREK CROWLEY

PLAINTIFF

AND

ROCHE PRODUCTS (IRELAND) LTD., F. HOFFMAN - LA ROCHE LIMITED, ROCHE HOLDINGS LIMITED, R.P. SCHERER LIMITED, ROCHE PRODUCTS LIMITED, THE IRISH MEDICINES BOARD, FERGUS LYONS

DEFENDANTS

PRIMOR PLC (PMPA) V. FREANEY & STOKES KENNEDY CROWLEY 1996 2 IR 459

RSC O.122 r7

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD MONTGOMERY & ORS 2002 3 IR 510

DOWD v KERRY CO COUNCIL 1970 IR 27

WHEARTY v AGRICULTURAL CREDIT CORPORATION LTD & ORS UNREP HIGH COURT MCCRACKEN J 31.10.1997 1998/34/13262

O'C (J) v DPP 2000 3 IR 478

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

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

GILROY v FLYNN 2005 1 ILRM 290

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

BUCHOLZ v FEDERAL REPUBLIC OF GERMANY 1981 3 EHRR 597

ZIMMERMAN & STEINER v SWITZERLAND 1983 6 EHRR 17

GUINCHO v PORTUGAL 1984 7 EHRR 223

SCOPELLITI v ITALY 1993 17 EHRR 493

MANNING v BENSON & HEDGES LTD & GARLAND v JOHN PLAYER & SONS LTD & MCNEVIN v P J CARROLL & CO LTD 2004 3 IR 556 2005 1 ILRM 190

DALY v LIMERICK CORPORATION UNREP SUPREME 7.3.2002 2002/6/1336

GRANT v ROCHE PRODUCTS (IRL) LTD & ORS UNREP MASTER OF THE HIGH COURT 25.6.2003 2003/24/5670

SOUTHERN MINERAL OIL LTD v COONEY 1997 3 IR 549

SILVERDALE & HEWETTS TRAVEL AGENCIES LTD v ITALIATOUR LTD T/A OFF SHORE WORLD CUP 94 & ANOR 2001 1 ILRM 464

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.06.2005 2005 IEHC 294 2005/53/11045

KEOGH v WYETH LABORATORIES INC & JOHN WYETH & BROTHER LTD 2005 2 ILRM 508

CIVIL LIABILITY & COURTS ACT 2004

Abstract:

Practice and procedure - Statement of claim - Extension of time for delivery of statement of claim - European Convention on Human Rights - Entitlement to hearing within a reasonable time - Whether time for delivery of statement of claim should be extended - European Convention on Human Rights, Art. 6

Facts: The plaintiff applied for an extension of time for the delivery of a statement of claim.

Held by the Master Honohan in refusing the application for an extension of time that a delay of three years from accrual of the cause of action was prima facie a breach of the defendant’s entitlement to a hearing within a reasonable time pursuant to Article 6 of the European Convention of Human Rights.

Reporter: R.W.

1 Master of the High Court 20th January, 2006

2 Failure to meet the procedural deadlines set by Rules of Court will necessitate an application to Court for leave to proceed notwithstanding the infringement. The decision is at the discretion of the court. Not unsurprisingly, the court often proceeds to examine the causes of the delay, the respective responsibilities of either party's lawyers, even whether the delay was the fault of the party in default rather than that party's legal team. If it is a culpable delay, there is the inevitable "blame game". But although the Court may seem often tempted to penalise the culpable party by refusing the application, the final decision always appears to turn on the interests of justice. The Court's patience may have been sorely tried but in the interests of justice it appears to be inexhaustible. Culpable though the applicant's dilatory conduct of the proceedings may have been, unless the respondent can establish difficulties which imperil a fair trial — which "put justice to the hazard" — the Court will accede to the applicant's plea for forbearance. It is a truism to say that to halt a plaintiffs case is prima facie unjust. It is also unarguable that a defendant who has a good defence will not lose the case no matter when the trial occurs. Taken together, more injustice will occur if a culpable defendant is let "off the hook".

3 The formula set out in Primor Plc. v. Stokes Kennedy Crowley & Ors 1996 2 IR 459 ("Primor") acts as a filter. If the delay (albeit in breach of the Rules) is not "inordinate" or even if inordinate is "excusable", the opposing party should be realistic and simply consent to the deadline extension requested. But even if it is both "inordinate" and "inexcusable" the Court may still permit the action to proceed if the balance of justice so requires.

4 It hardly seems necessary to point out that the Rules of Court are determinative of nothing. A Court of full original jurisdiction, such as the Irish High Court, may settle rules for the efficient disposition of its resources and to try to impose some practical disciplines on the litigants who come before it but, "when push comes to shove" and justice demands it, breach of no mere Rule of Court should be fatal to a meritorious cause of action or a bona fide defence.

5 In case this matter falls ultimately to be decided or considered outside of the immediate Irish courts” structure it is perhaps useful to note here for the information of such other authorities that the Plenary Summons (served in this case on this defendant in August, 2001) contains no more than a signalling of the plaintiffs intention to seek damages for negligence. No factual details are set out. There is nothing in the "General Indorsement of Claim" which would enable a defendant (who up “til that point knew nothing about the plaintiff's history or circumstances) to begin his enquiries or preparations with a view to dealing with the claim in the fullness of time. A defendant must respond to the service on him of the Summons by filing an "Appearance" in the Central Office of the High Court, copying same to the plaintiff and indicating (if such be the case) that he, the defendant, required delivery of a "Statement of Claim".

6 The Rules stipulate that a Statement of Claim be delivered within 21 days of receipt of the Appearance, if the defendant requests. It is open to the defendant to move the Court for an Order dismissing the plaintiff's claim for failure to deliver the Statement of Claim at any time after the expiry of that period. (In the instant case, the seventh named defendant did not do so, but I will return to this feature later.) A defendant's such application and a plaintiff's application to extend the deadline are two sides of the same coin! Precisely the same legal principles govern the outcome.

7 The Rules of Court provide, at Order 122, r. 7 thereof, that "The Court shall have power to enlarge or abridge the time appointed by these Rules … upon such terms (if any) as the Court may direct". Applications for such an extension are by Motion (on notice to the other party).

8 This application arises precisely in such circumstances. Having issued his Plenary Summons on 31 ^st August, 2001, the plaintiff missed the deadline set out in the Rules of Court for the delivery of his Statement of Claim. The seventh named defendant declined consent to the late filing of the Statement of Claim when requested to consent on 26 ^th October, 2004. The plaintiff now applies to court for an extension of time for delivery of the Statement of Claim.

9 A draft Statement of Claim is exhibited but is not itself evidence of the facts alleged. The plaintiff's history is deposed to on affidavit. He says that a tablet marketed by the seventh named defendant was prescribed for him in 1992, when he was aged 16, for the treatment of severe acne. He says that "whilst on the Roaccutane treatment, I noticed that I …became increasingly obsessive, compulsive, anxious and irritable". His "condition deteriorated" and he "decided I could no longer continue at school". He lists seven medical practitioners consulted by him in the period 1993 to 1998 but says that "notwithstanding treatment I continued to suffer deterioration in mood, anxiety levels and obsessive compulsive behaviour".

10 He says that "I only become aware of the possibility of a link between my illness and the drug Roaccutane when I attended Dr. Caroline Murphy in September 1998 and… she recommended me to obtain legal advice".

11 The rule above cited is silent as to the considerations which will influence the outcome of the application, but the reported case law in regard to procedural delays and other like infringements of the Rules fall to be considered as guidance. Particularly in point are the cases in which the court dealt with applications by defendants for dismissal of a plaintiff's claim on the grounds of "want of prosecution" including, in particular, the failure to deliver a Statement of Claim.

12 As with all discretionary powers, a variety of approach, and unpredictability, may be inimical to a perception of justice (and may also generate more heat than light!). Perhaps to avoid such an undesirable pattern, the Supreme Court Primor formula set out the factors which ought to be considered by the judge deciding an application dealing with litigation which had been delayed in breach of the rules.

13 In 1979 Finlay P. offered a formulation of the methodology appropriate for adjudicating dismiss applications in Rainsford v. Corporation of Limerick 1995 ILRM 561, and he added the adjectives "inordinate" and "inexcusable" to the word "delay". "Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings". By this, I think he intended to warn off trigger happy defendants: no point in bringing an application, he was saying, unless the delay was gross. The test has been "enshrined" by frequent use into a set of preconditions subjected to excessively legalistic analysis. Curiously, we spend our time considering whether the delay is inexcusable, and (in the later analysis of the balance of justice) we re-examine the excuse previously found to be unacceptable!

14 The Primor "formula"...