Donnellan v Westport Textiles Ltd and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date18 January 2011
Neutral Citation[2011] IEHC 11
CourtHigh Court
Date18 January 2011
Donnellan v Westport Textiles Ltd & Ors
BETWEEN/
JOHN DONNELLAN
APPELLANT

AND

WESTPORT TEXTILES LIMITED (IN VOLUNTARY LIQUIDATION)

AND

MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

[2011] IEHC 11

[No. 10718P/2000]

THE HIGH COURT

PRACTICE AND PROCEDURE

Delay

Negligence claim - Date of knowledge - Delay of 26 years in issuing proceedings - Delay in executing service - Duty to move with expedition - Difficulty with other defendants - Balance of justice - Prejudice - Discretion to strike out - Inherent duty to strike out - Effective administration of justice - Fairness of procedures - Right to hearing within reasonable time - Public interest - Whether delay inordinate and inexcusable - Whether prejudice to defendant necessary - MacH(J) v M(J) [2004] IEHC 112, [2004] 3 IR 385 and McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010) followed - Kilcoyne v Westport Textiles Ltd [2006] IEHC 256, (Unrep, Finnegan P, 26/7/2006); Dunne v PJ Whyte Construction Ltd [1989] ILRM 803; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Sheehan v Amond [1982] IR 235; O'Domhnaill v Merrick [1984] IR 151; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Toal v Duignam (No 1) [1991] ILRM 135; Toal v Duignam (No 2) [1991] ILRM 140; Byrne v Minister for Defence [2005] IEHC 147, [2005] 1 IR 577; Kelly v O'Leary [2001] 2 IR 526; O'Connor v Neurendale Ltd [2010] IEHC 387, (Unrep, HC, Hogan J, 22/10/2010); Gilroy v Flynn [2004], IESC 98, [2005] 1 ILRM 290 and McFarlane v Ireland [2010] ECHR 1272 considered - Statute of Limitations (Amendment) Act 1991 (No 18), s 2 - Companies Act 1963 (No 33), s 310 - Civil Liability Act 1961 (No 41), s 62 - Constitution of Ireland 1937, Art 34.1 - European Convention on Human Rights, art 6 - Application granted (2000/10718P - Hogan J - 18/01/2011) [2011] IEHC 11

Donnellan v Westport Textiles Ltd

Facts The defendants brought a motion seeking to have the proceedings herein struck out on the grounds of inordinate and inexcusable delay. Those proceedings concerned a claim by the plaintiff for damages in respect of hearing loss caused by the alleged negligence and breach of duty on the part of the defendants. The plaintiff had enlisted with the Defence Forces on 4 September 1973 and was discharged on 28 June 1974. He was later employed by the first named defendant as a cone winder between 1978 and 1979. These proceedings were commenced on 14 September 2000 and were served on the second named defendants on 29 May 2002. The explanation proffered for the delay in serving the proceedings by the plaintiff's solicitor was that it arose "simply due to the logistics of obtaining formal instructions from in or around 140 clients and issuing plenary summonses for all of them." The plaintiff's solicitor had been acting in a very large number of hearing loss claims taken against the State. There followed a period of inactivity between the time the plaintiff was examined by a consultant on behalf of the defendants in 2002 and the service of a notice for particulars in 2005. However, the plaintiff, due to inadvertence did not serve replies to particulars until August 2010. In support of their application, the defendants did not identify any particular prejudice arising from the delay but they did contend that the court retained an inherent discretion to strike out the proceedings for gross delay, even in the absence of specific prejudice. It appeared to be accepted that the plaintiff would suffer prejudice if he was deprived of his remedy to sue for negligence.

Held by Hogan J. in granting the application: That the plaintiff's solicitor's explanation for the delay in serving the proceedings was not compelling. The very long interval between the events complained of and the commencement of the proceedings meant that the plaintiff was under a particular duty to move with expedition. There was no question but that the delay in the present proceedings was inordinate and excusable. The judgment of Geoghegan J. in the case of McBrearty v. North Western Health Board [2010] IESC 27 made it clear that there were two separate, albeit overlapping, strands of jurisprudence regarding the issue of inordinate and inexcusable delay in civil litigation. That judgment confirmed that the three-prong test articulated by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 was not exhaustive and all-encompassing, but that the court enjoyed a separate and distinct constitutionally derived jurisdiction to protect the proper administration of justice by striking out proceedings for inordinate and inexcusable delay despite no specific prejudice being suffered by the applicants but because there was prejudice to the public interest as a result of that delay. Although there was no prejudice to the defendants herein, there was prejudice to the public interest. The judicial duty to ensure the timely administration of justice, which was derived from Article 34.1 of the Constitution and Re Haughey style basic fairness of procedures extended to protecting the public interest. The delay in the present case was prejudicial to that public interest for all the reasons set out by Peart J. in Byrne v. Minister for Defence [2005] IEHC 147, [2005] 1 I.R. 577.

Reporter: L.O'S.

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

COMPANIES ACT 1963 S310

CIVIL LIABILITY ACT 1961 S62

KILCOYNE v WESTPORT TEXTILES LTD (IN VOLUNTARY LIQUIDATION) & ROYAL & SUN ALLIANCE PLC UNREP FINNEGAN 26.7.2006 2006/32/6865 2006 IEHC 256

DUNNE v P J WHITE CONSTRUCTION CO LTD (IN LIQUIDATION) & ORS 1989 ILRM 803 1989/5/1360

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010 IESC 27

SHEEHAN v AMOND 1982 IR 235 1982/15/3213

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140 1990/8/2334

BYRNE v MIN FOR DEFENCE & ORS 2005 1 IR 577 2005/7/1413 2005 IEHC 147

CONSTITUTION ART 34.1

KELLY v O'LEARY 2001 2 IR 526 2001/13/3651

HAUGHEY, IN RE 1971 IR 217

O'CONNOR v NURENDALE LTD T/A PANDA WASTE SERVICES UNREP HOGAN 22.10.2010 2010 IEHC 387

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

MCFARLANE v IRELAND 2011 52 EHRR 20 2010 ECHR 1272

MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084 2004 IEHC 112

CONSTITUTION ART 40.3.1

1

1. It may seem remarkable that negligence proceedings involving an adult plaintiff arising from events which took place almost thirty eight years ago are still outstanding before the courts. That, however, is the backdrop to the present case where the plaintiff has sued both a limited company and the State in respect of a hearing loss claim.

2

2. The plaintiff is a former member of the Defence Forces who was discharged on the 28 th June, 1974. He had in fact enlisted on 4 th September, 1973, when he was almost 20 years of age, so that his period of service in the Defence Forces was a little short of ten months. He was later employed as a cone winder between 1978 and 1979 with the first defendant, Westport Textiles Ltd. That company went into liquidation in 1981, albeit that the liquidation itself was not completed until June, 2000. For reasons which I will later recount, the action is now proceeding against the State defendants only. These defendants have, however, brought a motion seeking to have the proceedings struck out on the grounds of inordinate and inexcusable delay. The present case is one of approximately 29 such claims in which proceedings as against both Westport Textiles and the State were originally issued. The plaintiff's solicitor was also acting in a very large number of other hearing loss claims against the State.

3

3. In the present proceedings the plaintiff claims damages for personal injuries caused by the alleged negligence and breach of duty on the part of the defendants, whom I shall describe as Westport Textiles and the State. The gist of the claim is that the plaintiff was exposed to excessive noise during these two separate periods of employment and that he had sustained loss of hearing and tinnitus as a result.

4

4. These proceedings were commenced on 14 th September, 2000. Given the lapse of time, it might be thought that the claim was prima facie statute-barred. At the hearing of this motion, however, Mr. Kennedy S.C. informed me that the plaintiff will at trial contend that he commenced proceedings against the defendants within the period of three years from his "date of knowledge" within the meaning of s. 2 of the Statute of Limitations (Amendment) Act 1991. For the purposes of this motion, I will assume that this is so and I will therefore proceed on the assumption that the action is not, in fact, statute-barred.

5

5. But even if these proceedings are not statute-barred, the critical point here, surely, is that the proceedings were issued in 2000 in respect of events which took place some twenty six years previously. In those circumstances, it behoved the plaintiff to move with very considerable expedition.

6

6. The State was first notified of the existence of the proceedings on 26 th November, 2001, following a letter from the plaintiff's solicitors. The proceedings were not, however, served on the State until 29 th May, 2002, the time for service having been extended by this Court on 3 rd December, 2001. While the delay in effecting service is in itself striking, the explanation proffered by the plaintiff's solicitor was that this delay "was simply due to the logistics of obtaining formal instructions from in or about 140 clients and issuing plenary...

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