O'Donovan v Southern Health Board

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: KeaneC.J.
• Judgment Date: 02 November 2001
• Neutral Citation: 2001 WJSC-SC 4927
• Docket Number: 291/99,[S.C. No. 291 of 1999]
• Date: 02 November 2001

THE SUPREME COURT

Keane C.J.

Murphy J.

Geoghegan J.

291/99

O'DONOVAN

V

THE SOUTHERN HEALTH BOARD

Abstract:

Practice and procedure - Litigation - Application for non-suit - Whether trial judge had incorrectly applied test for non-suit.

Facts: When the present case was being heard in the High Court counsel on behalf of the defendant had applied for a non-suit. The trial judge had inquired on whether the defendant intended on going into evidence if the application was refused. The defendant indicated he would and the trial judge held that the defendant had a case to answer. Having heard the defendant's evidence the trial judge held that the plaintiff was not entitled to succeed and dismissed the plaintiff's case. However the trial judge had stated when dealing with the application for a non-suit that if the defendant had proposed not to go into evidence then he would have dismissed the plaintiff's case. The plaintiff appealed against the dismissal of proceedings.

Held by the Supreme Court (Keane C.J. delivering judgment; Murphy J. and Geoghegan J. agreeing) in allowing the appeal. The trial judge had not dealt with the application for a non-suit in a satisfactory manner. Where a trial judge believed there was no 'case to meet' then that was all the trial judge was required to say. To indicate to the defence that the plaintiff had not made out a case could only be an indication to the defendant that the more evidence they called the more their prospects of winning the case diminished. The appeal would be allowed and a re-trial would be ordered on all issues.

1 Ex-tempore Judgment of the Court delivered by Keane C. J. on the 2nd day of November, 2001.

2 In this case at the conclusion of the plaintiff's case, counsel on behalf of the defendant's applied to the learned High Court judge for an non suit and it appears from the transcript of the trial judge, in accordance with the procedure endorsed by this court in O'Toole -v- Heavey and repeatedly followed in the High Court and in this court, the learned trial judge inquired whether in the event of this application being unsuccessful counsel would be going into evidence. Counsel indicated that he would be and of course this was a necessary inquiry from the trial judge's point of view because depending on the answer he received from counsel he would be required to apply different tests. If he had been informed by counsel that he would not be going into evidence

3 evidence then the trial judge would have applied the appropriate test which is whether the plaintiff is at that stage discharged the onus of proof and had satisfied him on the balance of probabilities that he was entitled to judgment.

4 However, counsel having reserved the right to go into evidence, which I think is the best way to put it, in the event of an application being unsuccessful, the learned trial judge was required to approach the question of whether the plaintiff should be non suited at that stage in accordance with the well established test dating, indeed, from the days of trial by jury, in these cases, that is to say, as to whether assuming that the tribunal in fact was prepared to find that all the evidence of the plaintiff was true, and in other words treating the plaintiffs case at its highest, whether in those circumstances the tribunal of fact would be entitled to arrive at the conclusion that making those assumptions, sometimes thought perhaps not entirely accurately described as the prima facie test, the defendant had a case to meet.

5 The trial judge in this case ruled that there was a case to meet and the defendants accordingly went into evidence and the trial judge having heard all the evidence concluded that the plaintiff was not entitled to succeed and dismissed the plaintiff's case. If that was all there was to that, then, subject to what submissions counsel for the plaintiff might make in relation to the

6 judgment and whether it was a satisfactory judgment in other respects because the plaintiff obviously contends that it was not and that there were many issues, which as was said on the plaintiff's side, the trial judge did not deal with adequately in his judgment. The plaintiff would still be contending that he was entitled to succeed on this appeal because the findings of the trial judge were either not supported by the evidence in the case or there were aspect of the evidence which the trial judge did not deal with properly or adequately.

7 However, a difficulty has arisen in this case which the court drew the attention of counsel, although they were clearly well aware of it at the opening of the appeal since it was obvious that from one point of view its resolution might also dispose of the appeal because unhappily, it has to be said, the trial judge expressed in unequivocal language when he was dealing with the application for its direction, his view that if he were dealing with the case on the basis that there was going to be no evidence for the defendant he would find in favour of the defendant because he was satisfied even at that stage that on the balance of probabilities the plaintiff was not entitled to succeed.

8 That, of course, presented counsel for the defendant with something of a dilemma and, it has to be said, he has met this matter very fairly in this court and very candidly because he has said obviously then he was in the position

9 that the less evidence he call the better, that he might call just purely token evidence in the knowledge that the trial judge had made it quite clear his view that the defendant was entitled to succeed at that stage and that, indeed, the calling of evidence on his part might only have a counter productive effect, because it might sway the judge to another conclusion than that which he had so clearly indicated. Faced with that situation, counsel for the defendants did not in fact call purely token evidence but called two witnesses of some significance who were then cross examined at some length on behalf of the plaintiffs but the trial judge reiterated his conclusion, said that all that he had heard simply reinforced the conclusion that he had already reached at the closing of the plaintiffs case and that is precisely the way he put it, that he had reached a conclusion at the close of the plaintiff's case and everything he had heard since had merely confirmed that view.

10 It has to be said that this was, unfortunately, a wholly unsatisfactory way of dealing with the matter. Where a trial judge had before him an application for a non suit, then of course if he is granting it the plaintiff is entitled to a reasoned judgment from trial judge as to why his case is being dismissed at that stage. Where as was the situation in this case, the trial judge was of the view that there was to use the convenient though not altogether accurate shorthand

11 'a case to meet' then that was all that he...