Delahanty v Players Wills (Ireland) Ltd and Others
 IEHC 331
THE HIGH COURT
LIABILITY FOR DEFECTIVE PRODUCTS ACT 1991
RSC O.19 r28
The plaintiff in these proceedings claims against the defendants for loss and damage allegedly suffered from and in connection with the smoking by the plaintiff of cigarettes manufactured by the first and second named defendants. The plaintiff's actions are founded in negligence, breach of duty and breach of statutory duty including beaches of the Defective Products Act 1991.
The present issue relates only to an application by the second named defendant for the following orders
(a) An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing the Plaintiff's claim against the Second Named Defendant as disclosing no reasonable cause of action.
(b) Further or in the alternative, an order pursuant to the inherent jurisdiction of this Honourable Court dismissing the Plaintiff's claim against the Second Named Defendant on the grounds that it has no reasonable prospects of success or, alternatively, is bound to fail.
(c) Such further or other order as to this Honourable Court shall seem fit.
(d) An Order providing for the costs of and incidental to this application and of the proceedings.
The application is based on the following evidence (subject to the limited relevance of some of this evidence to the first application):
1. Notice of Motion dated 16th December, 2003.
In an application of this kind the Court must act on the basis of any agreed facts and where there is a dispute as to facts the evidence and assertions of the plaintiff are to be preferred (except in any case where the alleged facts by the plaintiff are manifestly wrong).
The onus of proof lies with the applicant/defendant.
Facts agreed or found (for the purpose of this application only)
1. The proceedings commenced on 13th October 1998 and the Plenary Summons was served onl2th October 1999.
2. The third and fourth named defendants were joined on 23rd April 2002.
3. A Statement of Claim was delivered on 14th June 2002. An amended Statement of Claim was later delivered. Without prejudice to the other rights of the second named defendant in the matter, it was agreed, this application was to proceed on the basis of the second Statement of Claim
4. The Statement of Claim contained a variety of allegations against the first and second named defendants relating to the manufacturing and distribution of cigarettes to the plaintiff over a long number of years. The reliefs claimed included damages for negligence breach of duty breach of statutory duty and breach of constitutional rights.
5. The second named defendants sought further and better particulars of the claim by notice dated 2nd July 2002.
6. The plaintiff replied to the notice on 23rd September 2003.
7. The allegations of person injuries and damage which emerged from the replies to particulars was different in some respects to that which appeared from the Statement of Claim. In general the overall history was the same but the relative responsibility of the first and second named defendants were fundamentally different. The case in general was that the plaintiff started smoking cigarettes in the late 1930's, became addicted in the early 1940's, continued to smoke and was eventually diagnosed with cancer of the lung and other respiratory problems in late 1995. Thereafter she was unable to quit smoking, notwithstanding the danger which she now understood, by reason of her long standing addiction and continues to smoke.
8. The main difference in the case as it emerged in the replies to particulars as and compared with the Statement of Claim was that the plaintiff acknowledged in the reply to particulars that she did not switch from the cigarette brand of the first named defendant to that of the second named defendant until after her operation for lung cancer in October 1995. Up to that date she had no contact with the products of the second named defendant.
9. As a result of these particulars it became clear that much of the Statement of Claim in so far as it made allegations against the second named defendant and its product was redundant and unsustainable. At the hearing of the application counsel on behalf of the plaintiff effectively abandoned all parts of the claim against the second named defendant which relied on alleged use of the second named defendants products prior to October 1995.
The relief sought by the second named defendant is as set out above but can be summarised as firstly an order dismissing the plaintiff claim against the second named defendant under Order 19 Rule 28 of Rules of the Superior Courts and/or the same order under the inherent jurisdiction of the Court.
Order 19 rule 28 provides:
"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defender being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just".
What is at issue is whether, stripped of the abandoned claims, the plaintiff still has a reasonable cause of action against the second named defendant. In considering this issue, in the first application, the Court is confined to the pleadings i.e. the statement of claim and the replies to particulars.
While the onus of proof in the matter lies with the...
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