O'Donoghue v Dawson and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 08 December 2023
• Neutral Citation: [2023] IEHC 687
• Court: High Court
• Docket Number: Record No.: 2013/10032 P

Between/

Richard O'Donoghue

Plaintiff

and

John Dawson, John Dawson Junior, Michael Carey and Bridget Carey

Defendants

[2023] IEHC 687

Record No.: 2013/10032 P

THE HIGH COURT

JUDGMENT of Ms. Justice Emily Farrell delivered on the 8 ^th day of December 2023

1 The proceedings arise from an alleged assault and battery of the Plaintiff which is alleged to have been carried out by the First and Second Defendants on 30 ^th January 2011, in a public house owned and/or controlled by the Third and Fourth Defendants. The Third Named Defendant was the holder of the Intoxicating Liquor Licence at the time. The Personal Injury Summons issued on 19 ^th September 2013.

2 The Third and Fourth Defendants seek an order dismissing the proceedings as a result of the lack of any step having been taken in the proceedings for over two years, which application is brought under Order 122 r. 11 of the Rules of the Superior Court. The application is grounded on an affidavit sworn by the Third and Fourth Defendants' solicitor on their behalf.

3 The claim against the Third and Fourth named Defendants is a claim in negligence and breach of duty, including statutory duty. It is alleged inter alia, that these Defendants caused or permitted the Plaintiff to suffer injury; the particulars of negligence and breach of duty, including statutory duty, include allegations that they failed to anticipate that the Plaintiff would suffer injury, failed to devise or implement adequate security procedures, failed to carry out an appropriate risk assessment, provide adequate staffing or to provide any or any adequate training to staff. A full Defence was delivered on behalf of the Third and Fourth Defendants on 19 ^th June 2014, in which it was pleaded, inter alia, that if the assault the subject of the proceedings occurred in the manner alleged by the Plaintiff, it happened suddenly and/or without warning and/or in circumstances where the Third and Fourth Defendants could not have prevented the Plaintiff's alleged injuries.

4 The Defence asserts that the Plaintiff had failed to serve a letter of claim within two months of 30 ^th January 2011 as required by section 8 of the Civil Liability and Courts Act, 2004. The Plaintiff does not dispute this and claims, in his written submissions, that he was not a made aware of that requirement by his then solicitors.

5 It is averred, in the replying affidavit, which was sworn by the Plaintiff's solicitor, that he was instructed by the Plaintiff that, arising out of the criminal investigation by An Garda Síochána, the First and Second Defendants were prosecuted in the District Court. He also avers that they pleaded guilty and that penalties were imposed on them. He also avers that no compensation was offered to the Plaintiff by the First or Second Defendants. The nature of the penalties imposed, and the date(s) of the plea and/or imposition of the penalties are not disclosed. No explanation has been given as to why the affidavit was sworn by the Plaintiff's solicitor rather than the Plaintiff himself. The events deposed to, and particularly the explanations proffered for the delay on the part of the Plaintiff pre-dated the deponent's involvement in the proceedings.

6 The following chronology is contained in the helpful written submissions filed on behalf the Plaintiff. Substantially the same chronology was provided by the Third and Fourth named Defendants, on whose behalf helpful submissions have also been filed.

Date of Alleged Occurrence	30 th January 2011
Personal Injury Summons Issued	19 th September 2013
Affidavit of Verification by Plaintiff	19 th September 2013
Entry of Appearance for Third & Fourth Defendants	19 th November 2013
Third & Fourth Defendants issue Notice for Particulars	25 th November 2013
Plaintiff's Reply to Notice for Particulars from Third & Fourth Defendants	20 th February 2014
Motion For Third Party Discovery – An Garda Síochána [by Third and Fourth Defendant]	31 st March 2014
Discovery Order Made	29 th April 2014
Affidavit of Discovery sworn by of An Garda Síochána	2 nd June 2014
Notice of Motion, [Order 27, r. 9] of the Rules of the Superior Courts, Default of Defence [against Third and Fourth Defendant]	7 th May 2014
Order Extending Time for Delivery of Defence	4 th June 2014
Personal Injury Defence Delivered	19 th June 2014
Notice of Indemnity & Contribution served on First & Second Defendants	9 th July 2014
Affidavit of Verification Third & Fourth Defendants	6 th July 2015
Notice of Change of Name by Solicitors for Third & Fourth Defendants	20 th August 2018
Notice Of Intention to Proceed [by] Third & Fourth Defendants to Plaintiff and First & Second Defendants	3 rd December 2019
Notice Of Motion Seeking Relief under Order 122, r. 11 of the Rules of the Superior Courts	14 th May 2020
Notice of Motion brought by [original] Solicitors for the Plaintiff, seeking to be permitted to come off record	6 th July 2020
Order allowing [original] Solicitors for the Plaintiff, to come off record	14 th December 2020
Notice of Appointment as Solicitor for Plaintiff	22 nd April 2021
Notice of [Change of Solicitor to Current] Solicitor for the Plaintiff	26 th June 2021

7 This chronology is subject to the caveat by the Plaintiff, that “ the legal team for the Plaintiff have to reserve their position in respect of the said chronology as they have not had the opportunity themselves to examine the file of the former solicitors for the plaintiff so as to personally satisfy themselves as to the accuracy of the said chronology.” The Plaintiff's current Solicitor filed a Notice of Change of Solicitor on 26 ^th June 2021.

8 The following additional dates are relevant, and are evident from the affidavits sworn by the Plaintiff and the Third and Fourth Defendants' solicitors respectively as well as the affidavit of Siobhán O'Neill, Solicitor, sworn on the 2 ^nd July 2020 which grounded the application of the Plaintiff's original Solicitors to come off record:

Complaint made by Plaintiff to Law Society in relation to his original Solicitors	6 th April 2018
Plaintiff's original solicitors wrote to the Plaintiff stating “ in light in light of your unfounded complaint to the Law Society, we feel that it would not be appropriate for us to continue to act on your behalf in relation to the above matter. In the circumstances we would recommend that you instruct another firm of solicitors.”	4 th May 2018
Plaintiff notified of Decision by Law Society that the complaint was inadmissible	8 th May 2018
Letter from ‘JMS’, potential solicitor for Plaintiff	31 st October 2018
Letter from Plaintiff's original Solicitor to ‘JMS’ confirming that the firm had no interest in continuing to act on behalf of the Plaintiff in any matter	6 th November 2018
Letter from ‘JMS’ stating the Plaintiff would not be taken on as a client	28 th January 2019
Letter from Plaintiff's original Solicitors notifying him of this motion and recommending that he “bring the same to the immediate attention of your solicitors.”	18 th June 2020
Letter from Plaintiff's original Solicitors to Solicitors for Third and Fourth Defendants asking them to adjourn the motion to dismiss	2 nd July 2020
Plaintiff's second Solicitor requested the Documents discovered by An Garda Síochána together with the Affidavit of Discovery, from the Third and Fourth Named Defendants' Solicitor	20 th April 2021
Affidavit of Discovery, and documents, provided to Plaintiff's second Solicitor	Date Undisclosed

The applicable test

9 The parties are in agreement that the applicable test to be applied is the test set out in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 (in particular pp. 475–6), which has been considered by the Court of Appeal in a number of recent cases including Cave Projects Ltd v. Gilhooley & Ors [2022] IECA 245, Gibbons v. N6 Construction Limited [2022] IECA 112 and Doyle v. Foley [2022] IECA 193.

10 The Third and Fourth Defendants do not seek an order dismissing the proceedings in reliance on the O'Domhnaill v. Merrick [1984] IR 151 jurisprudence.

11 In Gibbons v. N6 Construction, Barniville J. summarised the Primor test as follows:

“ 79. There are three limbs to the Primor test. The defendant must first establish that the delay on the part of a plaintiff in the prosecution of the claim has been inordinate. If it establishes that the defendant must then establish that the delay has been inexcusable. If the defendant establishes, or if it is agreed, that the delay is both inordinate and inexcusable, “the court must exercise a judgment on whether, in its discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case.” (per Hamilton C.J. in Primor at para. (e) on p. 475).

80. As the moving party on the application to dismiss, the defendant also has the burden of proving that the balance of justice favours the dismissal of the claim (see, for example, per Irvine J. in Cassidy at para. 35). However, as we shall see, the defendant does not have to establish the same level or degree of prejudice which must be established in order to have a claim dismissed under the second strand of jurisprudence described in O'Domhnaill. … The onus remains on the defendant to establish that the balance of justice favours the dismissal of the case. The position in fact is, as was stated by Fennelly J. in the Supreme Court in Anglo Irish Beef Processors Ltd. v. Montgomery [2002] 3 IR 510 (“ AIBP”), citing what Henchy J. stated in O'Domhnaill, that a person responsible for delay which is found to be inordinate and inexcusable:

“will not be absolved of fault unless he can point to countervailing circumstances. If he can, the court may be able to treat him more favourably when it comes to...