David Cassidy v Martin Butterly & Company Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 10 April 2014
• Neutral Citation: [2014] IEHC 203
• Court: High Court
• Date: 10 April 2014

Cassidy v Martin Butterly & Co Ltd & Ors

BETWEEN

DAVID CASSIDY

PLAINTIFF

AND

MARTIN BUTTERLY AND COMPANY LIMITED, PATRICK MONAGHAN (DROGHEDA) LIMITED AND DROGHEDA DEEP SEA DOCKERS ASSOCIATION LIMITED

DEFENDANTS

[2014] IEHC 203

[No. 12913 P./2000]

THE HIGH COURT

Procedural Delay – Employment – Damages – application to dismiss claim - interests of justice – inordinate and inexcusable delay – Unfair Prejudice – Personal responsibility for delay – Unfair Dismissal

The factual background to this case involves the plaintiff”s employment and subsequent dismissal by the employer defendant. The plaintiff claimed that he was employed as a casual docker, got injured and upon recuperation was refused by the employer defendant from returning to work. The plaintiff sought a declaration that he has a subsisting contract of employment with one or other of the defendants, an injunction restoring him to his position of work, a declaration that a purported termination of the plaintiff”s employment is null and void and damages caused to the plaintiff. The defendant rendered an application to dismiss the plaintiff”s claim against him on the grounds that the plaintiff”s procedural delays have been inordinate and inexcusable and have been unfairly prejudicial against the defendant. The defendant”s application was brought before Ryan J. in the High Court.

Deliberating on the issue of the plaintiff”s delay in proceedings, Ryan J analyzed whether or not the plaintiff did indeed cause a delay in proceedings, which was inexcusable and inordinate. Contemplating case law such as on Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561, and. Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.Ryan J decided that if indeed the plaintiff”s delay was inordinate and inexcusable it would be deemed prejudicial toward the defendant and it would be in the interests of justice that the plaintiff”s claim be dismissed unless the plaintiff is able to adduce some exceptional countervailing argument or circumstances to avert that consequence. Analyzing the plaintiff”s procedural delay Ryan J decided that seven years delay qualified as inordinate delay, however the plaintiff had fairly reasonable excuses for the delay, e.g. Solicitor delays. Ryan J concluded that in the absence of any personal responsibility on the part of the plaintiff for the delay in proceedings, the balance of justice would favor dismissal of the defendant s application to dismiss the plaintiff”s claim. Dismissal due to unfair prejudice caused by delay requires that the delay in question be both inordinate and inexcusable. Ryan J held that the defendant”s application be dismissed.

1 JUDGMENT of Mr. Justice Ryan delivered on the 10th April, 2014

2 This is an application to dismiss the plaintiff's claim as against the first defendant, pursuant to the inherent jurisdiction of the court and/or under O. 122, r. 2 of the Rules of the Superior Courts for want of prosecution.

1. Background

3 The plaintiff claims that he was employed as a casual docker at Drogheda Docks, Co. Louth between 1978 and 1982. In 1982 he was appointed to a permanent position in the employment of the first or the second or the third defendants or of some combination thereof and the employment continued until the 21 ^st November, 1991, when he suffered an accident at work and injured his right knee, ft is claimed that he was medically certified as unfit for work from the 23 ^rd January. 1993, and that continued up to a time in or around January 1999, when he attempted to return to work. He claims that the defendants or one or other of them refused to permit him to return. They purported to terminate his employment and allegedly acted in concert to prevent him from going back to work.

4 During the plaintiff's period of employment and the further time during which he was entitled to be employed, he himself made some payments to a fund to provide a pension and other benefits for him and other employees, which fund was operated, managed and controlled by the third defendant. Whichever of the defendants was the actual employer of the plaintiff was also obliged during the period of employment to make contributions to the said fund.

5 The plaintiff claims many reliefs including a declaration that he has a subsisting contract of employment with one or other of the defendants; an injunction restoring him to his position of work; a declaration that a purported termination of the plaintiff's employment is null and void; damages for intentional or reckless infliction of mental distress and other emotional upset; damages for breach of contract and other wrongs, as well as a variety of other declaratory, injunctive and other reliefs.

6 It would appear that the plaintiff's essential claims are that he was in permanent employment at the time he sustained his injury at work, that the injury kept him out of work for a long period of years, that his employment continued notwithstanding his long absence, that he was entitled to present himself for work when he had recuperated, that his employer wrongfully refused to take him back and put him to work and/or purported to terminate his employment and that the employer failed to make appropriate payments to the plaintiff's pension fund during the period of his employment and his absence on leave because of injury. In the result, he claims to have suffered mental distress and other upsets as well as financial losses arising from the above circumstances.

7 The plaintiff does not specify which of the defendants was his employer, pleading that it was the first and/or the second and/or the third defendants.

8 The first two defendants are stevedoring firms in Drogheda and the third defendant appears to be a limited company set up to receive payments and provide benefits for dockers at Drogheda Docks and, according to the plaintiff's pleadings, to supply and even employ dockers at that port.

9 The first two defendants have filed full defences.

2. History of Proceedings

10 The motion by the first defendant to strike out the plaintiff's claim is grounded on the affidavit of Mr. Ronan O'Reilly, solicitor, dated the 16 ^th August, 2013. He furnishes relevant dates as follows:

11 7 ^th November, 2000, plenary summons issued.

12 18 ^th May, 2001, statement of claim delivered.

13 27 ^th June, 2002, defence delivered.

14 11 ^th July, 2002, the deponent says that that was the last correspondence passing between the parties for a period of almost nine years.

15 13 ^th May, 2011, notice of change of solicitor by Messrs Hamilton Turner, the plaintiff's new solicitors.

16 11 ^th January, 2012, notice of intention to proceed was served by the plaintiff's solicitors.

17 14 ^th March, 2012, notice of trial was served.

18 29 ^th April, 2013, the plaintiff's solicitors issued a discovery request.

19 16 ^th May, 2013, motion for discovery by the plaintiff.

20 Mr. O'Reilly deposes that the delay in prosecuting the plaintiff's proceedings has been inordinate and inexcusable. He says that the defendant is seriously prejudiced, not just by reason of the delay itself but in seeking to defend the action. He says that the voluntary discovery request refers to documentation in relation to payments made by the first defendant or to the third defendant on his behalf. The first letter came from the plaintiff's then solicitor on the 17 ^th June, 1999, which elicited a reply from the first defendant that they had had no communication from the plaintiff for many years and he was no longer in their employment. Although the plaintiff makes "some case that he should have been allowed to return to work in 1999, he had not worked for the first named defendant company since 1993, some twenty years ago". In the circumstances it would be onerous in the extreme to require the first defendant not just to make discovery but to defend the action. Mr. O'Reilly adds the following:-

"In addition the plaintiff is also relying on alleged representations made to his union representative in relation to his return to work. Particulars were raised in this regard in March. 2001, but were not replied to and the matter subsequently went into abeyance in July 2002. With the passage of time, the first named defendant may not be able to call the relevant witnesses to deal with this and their recollection if available will in any event be poor at this remove."

21 The plaintiff's solicitor, Mr. Andrew Turner swore a replying affidavit dated the 1 ^st November, 2013. He says that the plaintiff retained the firm of Donai Branigan & Co. in 2000, but that he had no solicitor from approximately 2005 until the 13 ^th May, 2011, when Hamilton Turner came on record. The plaintiff has attempted to prosecute his claim with vigour and the fact that that has not occurred is not his fault.

22 Mr. Turner gives some information about the third defendant. He says that it was founded in 1983 as a Union within the Amalgamated Transport and General Workers Union and that membership of the Association would automatically lead to membership of the Drogheda Deep Sea Dockers Association Pension Scheme. The first and second defendants contributed employers' contributions to the pension scheme.

23 Mr. Turner says that the plaintiff suffered an injury to his right knee in the course of his work on the 21 ^st November. 1991. He was certified medically unfit from the 23 ^rd January, 1993 by reason of the injuries. The plaintiff sued the second defendant and the personal injury proceedings were settled on the 24 ^th November, 1998. He was thereafter certified as fit to return to work and attempted to do so in January. 1999. but the first defendant and/or the second defendant and/or the third defendant did not permit him to return to work.

24 Mr. Turner says that between the 21 ^st November, 1991, and...