O Domhnaill v Merrick

JudgeMcCARTHY J.,Henchy J.
Judgment Date01 January 1985
Neutral Citation1984 WJSC-SC 1593
CourtSupreme Court
Docket Number[S.C. No. 5 of 1983]
Date01 January 1985

1984 WJSC-SC 1593

Henchy J.

Griffin J.

McCarthy J.

No. 4368P/1977


Subject Headings:

PRACTICE: time limit


Judgment of Henchy J.delivered the 13th July 1984 [GRIFFIN CONCURRING]


The plaintiff met with a road accident in 1961, that is twenty-three years ago. Now twenty-six years old, she was then aged three. A motor car driven by the defendant collided with her. The injuries she suffered were very serious. It was not until 1977, however, that a High Court plenary summons was issued and served on her behalf claiming damages against the defendant. A statement of claim has never been delivered. When the plaintiff applied in the High Court in 1982 for an extension of the time fixed by the rules of court for delivering a statement of claim, the application was refused and an order was made dismissing the action for want of prosecution. It is against that refusal and that dismiss that the present appeal has been brought by the plaintiff. Shecontendsthat she should be allowed to proceed with her claim against the defendant, notwithstanding that if so allowed she is not likely to get a hearing of her case before 1985, which will be twenty-four years after the accident. The defendant's reply to that contention is summed up in the following paragraph in an affidavit sworn by her solicitor in1982:


"I therefore say that it is unreasonable to expect any witness to recollect an accident which took place in 1961 some twenty-one years later and I say that it is contrary to natural justice that the defendant should now be required to defend this action and that the defendant has been seriously prejudiced by the failure of the plaintiff to prosecute her claim within a reasonable time of the occurrence of theaccident".


To decide which contention should prevail, the plaintiff's or the defendant's, it is necessary to set out in chronological sequence the relevant circumstances.


As I have said, the accident happened in 1961 when the plaintiff was three years old. Shortly after the accident her father consulted a solicitor practising in Nenagh, Co. Tipperary, but it does not appear that that solicitor instituted a claim for damages on her behalf within the three years after the accident -which was the period of limitation applicable under s. 49(2) (a) (ii) of the Statute of Limitations, 1957. In 1965 the plaintiff's father consulted a second solicitor, practising in Templemore, Co. Tipperary, and that solicitor issued a plenary summons in 1965 claiming damages on behalf of the plaintiff against Samuel Young, the owner of the motor car that collided with the plaintiff. As the law was then generally understood to be, those proceedings were out of time. When, therefore, Samuel Young applied in 1968 for an order dismissing the proceedings for want of prosecution, there was no opposition to the making of that order. Those proceedings were therefore dismissed.


The constitutionality of s. 49(2) (ii) of the Statute of Limitations, 1957, was challenged successfully in O'Brien v. Keogh 1972 I.R.144. The parties are agreed (and I so accept for the purpose of this case) that the decision of this Court in that case had the effect of making the period of limitation under the Statute of Limitations, 1957, for the plaintiff's claim the period expiring three years after the date on which she would become of full age. Since the latter date was the 29 November 1978, the statute could not have been successfully pleaded against her if her claim had been brought before the 29 November1981.


The plaintiff's present solicitor was first instructed to act on her behalf in March 1977. In September 1977 he issued a plenary summons claiming damages against the defendant as the driver of the motor car that collided with the plaintiff. The summons was served on the defendant in December 1977. It seems to have come to her as a bolt from the blue, for since the accident sixteen years earlier she apparently had no intimation that a claim on behalf of the plaintiff would be made against her. The plaintiff's solicitor having consented on three occasions to an extension of the time for entering an appearance to the summons, an appearance was eventually entered in May 1978.


One would have thought that this stale claim would then have been prosecuted with punctuality and assiduity. Unfortunately that did not happen. Between May 1978 and October 1979 no step seems to have been taken on behalf of the plaintiff towards the hearing of her case: An inactivity, still unexplained, immobilised the plaintiff's claim. Since there was no move in the proceedings for over a year, it became necessary, before taking any further step, to serve a notice of intention to proceed. Such a notice was served by the plaintiff's solicitor in October 1979. One would have expectedthis notice to be the prelude to a period of vigorous activity in the prosecution of the claim. Alas, it turned out not to be so. All it led to was the obtaining of an order from the Master of the High Court in December 1979 allowing the plaintiff to proceed with the action in her own name, she having reached full age in November 1978.


A pall of inactivity descended again on the plaintiff's case. No step in the prosecution of her claim seems to have been taken between December 1979 and September 1981. Once again, no explanation has been given of this period of stagnation in an action the previous history of which cried out for urgent activity. The absence of movement was so prolonged that it became necessary to serve another notice of intention to proceed. That was done in September 1981.


It was not until January 1982 that a notice of motion was issued on behalf of the plaintiff seeking an extension of the time for serving a statement of claim. A statement of claim could have been delivered in full compliance with the rules of court within twenty-one days from the service of the plenary summons on the 2 December 1977. I have searched the affidavits in the presentapplication for any reason that would explain or justify the four years delay in delivering a statement of claim that then took place. I have found none.


It was not until May 1982 that an order was got from the Master of the High Court extending the time for delivery of a statement of claim. An appeal by the defendant against that order, together with a motion by the defendant for the dismiss for want of prosecution of the plaintiff's claim, was heard by Hamilton J. in December 1982, when he made an order reversing the Master's extension of time for delivering a statement of claim and another order dismissing the action for want of prosecution. It is from those orders that the present appeal has been taken by theplaintiff.


Unfortunately the foregoing catalogue of delays and inactivities is not the full story. Notices of appeal against the orders of Hamilton J. were issued by the plaintiff on the 10 January 1983. Once more, an unaccountable torpor befell the proceedings. Although the hearing before Hamilton J. was on affidavit, so that it was not necessary to bespeak any transcript of oral evidence, thus rendering the books of appeal easy to compile, the delay on the part of the plaintiff's legal advisers in preparing and lodging those books was such that a motion to dismiss the appeals for want ofprosecution was brought in this Court by the defendant in November 1983. When that motion came on for hearing, the Court was told that the books of appeal were then ready, so an order by consent was made dismissing the motion. The Court, however, gave liberty to the plaintiff to mention the appeal as soon as it was listed, so that an application could be made to have the hearing expedited. No such application was made. If such an application had been made, this appeal would have been heard many months ago.


The recital I have given of the course taken by the plaintiff's claim for damages, from the happening of the accident in 1961 up to the hearing of this appeal in May 1984, gives a picture of considerable delay on the plaintiff's side of the case. Making all due allowances, I find that delay inordinate and inexcusable. It is a delay that is all the more to be regretted because the injuries suffered by the plaintiff in the accident seem to have been very serious and to have given rise to very grave sequelae. It is in my experience unprecedented for a claim of that nature to be left uncompleted for such a long time. It is now twenty-three years since the accident and if the plaintiff's delay is overlooked and a statement of claim is allowed to be delivered, it will probably betwenty-four years after the accident before a hearing will take place. The question to be answered in this appeal, therefore, is: should the defendant be required in the circumstances to seek to rebut an allegation of negligence on her part in an accident that happened virtually a quarter of a century before the trial, and to meet a claim for heavy damages for personal injuries suffered by the plaintiff in that accident, when she first learned of such a claim sixteen years after the accident?


We have been referred to the relevant judicial authorities on the effect of delay in the prosecution of claims, e.g. Allen v. McAlpine 1968 2 Q.B. 229; Dowd v. Kerry Co. Co. 1970 I.R. 27; O'Reilly v. C.I.E. 1973 I.R. 278; the unreported judgment of Finlay P. in Rainsford v. Limerick Corporation (31 July 1979); Birkett v. James 1977 2 All E.R. 801; and Sheehan v.Amond 1982 I.R. 235. Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on...

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