Dowd v Kerry County Council

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 10 July 1970
• Docket Number: [1964. No. 1042 P.]
• Date: 10 July 1970

Supreme Court

[1964. No. 1042 P.]

Dowd v. Kerry County Council

MARY DOWD

Plaintiff

and

THE COUNTY COUNCIL OF THE COUNTY OF KERRY and COLM GALVIN

Defendants.

Rowe v. Tregaskes [1968] 1 W.L.R. 1475;

Fitzpatrick v. Batger & Co. Ltd. [1967] 1 W.L.R. 706 and

Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 considered.

Practice - Time limit - Extension Delivery of statement of claim - Delay of four years - Application to dismiss action for want of prosecution - Appeal to Supreme Court - Additional evidence - Rules of the Superior Courts, 1962(S.I. No. 72 of 1962), Or. 27, r. 1; Or. 58, r. 8; Or. 108, rr. 7, 11.

Appeal from the High Court.

The plaintiff issued a plenary summons dated the 1st June, 1964, in which she claimed damages for personal injuries due to the alleged negligence, breach of contract and breach of statutory duty of the defendants, their servants or agents, or one or other of them. The first defendant entered an appearance on the 11th June and the second defendant entered an appearance on the 16th June, 1964, and on the 13th October, 1964, the plaintiff asked each defendant for a consent to an extension of the period allowed for delivering a statement of claim and that period was extended by consent of the defendants until the 31st October, 1964. On the 25th July, 1968, the plaintiff's solicitor wrote to each of the defendants stating that he was in a position to deliver a statement of claim and asking for consent to an extension of the period allowed for that purpose to the 31st July; and such consent was given by the solicitors for the first defendant by letter dated the 29th July but was refused by the solicitors for the second defendant by letter dated the 9th August, 1968.

On the 20th September the plaintiff issued notice of her motion before the Master of the High Court for an order extending the period allowed for delivery of her statement of claim. On the 21st October the second defendant issued notice of his motion before the Master for an order dismissing the plaintiff's action against the second defendant for want of prosecution. On the 12th November the Master made an order refusing the plaintiff's application but granting the application of the second defendant. On the 20th November the plaintiff applied to the High Court by motion on notice pursuant to Order 63, r. 9, of the Rules of the Superior Courts, 1962, for an order discharging the order of the Master of the High Court and extending the period allowed for delivery of a statement of claim. On the 2nd December the High Court (Murnaghan J.) made an order affirming the order of the Master, and the plaintiff then appealed to the Supreme Court by notice of appeal dated the 23rd December, 1968. A further affidavit was sworn by the plaintiff's solicitor on the 18th June, 1969, and was later filed and received as evidence by the Supreme Court.1

Order 27, r. 1, provides that:—"If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just."

Order 108, r. 7, provides that:—"The Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by

any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

Order 108, r. 11, provides that:—"In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule." No formal notice of intention to proceed was served by the plaintiff but the defendants accepted in the High Court that a letter from the plaintiff's solicitor written in July, 1968, was a sufficient compliance with this requirement.

Order 110, r. 1, provides that:—"Non-compliance with these Rules shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court shall think fit."

On the 26th July, 1962, a surgical operation was performed on the plaintiff by the second defendant who was a surgeon employed by the first defendants in their county hospital. On the 1st June, 1964, the plaintiff commenced an action in the High Court and claimed damages for personal injuries which she alleged were caused by the negligence of the defendants or one of them. The plaintiff sought and obtained the consent of the defendants to an extension until the 31st October, 1964, of the period allowed for delivery of a statement of claim but no statement of claim was delivered during such extension or subsequently. From April, 1964, when he was retained, until May, 1965, the plaintiff's solicitor tried without success to obtain the permission of the defendants to interview nurses and to be supplied with copies of the medical records of the operation. No steps involving the defendants were taken by the plaintiff from May, 1965, to March, 1968, when the plaintiff's solicitor again sought to obtain such copy records. On the 12th November, 1968, the Master of the High Court made an order dismissing an application by the plaintiff for an extension of the period allowed for delivery of a statement of claim, and dismissing the plaintiff's claim against the second defendant for want of prosecution; that order was affirmed by the High Court on the 2nd December, 1968. The plaintiff appealed to the Supreme Court.

In opposing the plaintiff's application in the High Court, the second defendant had made the point that during the operation he had been assisted by a surgical registrar who had left the country and whose whereabouts was unknown, and that a named nurse who had attended the plaintiff had also left the country. Before the hearing of the appeal by the Supreme Court, the plaintiff's solicitor filed an additional affidavit deposing to the facts (a) that he had discovered the address abroad of the surgical registrar, who had expressed his willingness to give evidence, and (b) that the solicitor had corresponded with the named nurse in the year 1964 and had discovered recently her present address abroad.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.), in allowing the appeal, that in the changed circumstances an extension of the period allowed for delivery of a statement of claim could be granted without the defendants being prejudiced thereby.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

This is an appeal against an order of Mr. Justice Murnaghan dated the 2nd December, 1968, refusing the plaintiff's motion for an order extending the time for the delivery of the statement of claim herein. Mr. Justice Murnaghan's order was an affirmation of the order of the Master of the High Court dated the 12th November, 1968. His Lordship's order does not dismiss the action as against the second defendant, but in his judgment he stated that he affirmed the Master's order in this respect also. This part of the Master's order was made on foot of a motion by the second defendant to dismiss the action for want of prosecution.

The plaintiff's originating summons was issued on the 1st June, 1964, and service was accepted by Messrs. Hudson & Browne for the first defendant on the 10th June, 1964, and by Messrs. Arthur Cox & Co. for the second defendant on the 12th June, 1964. Order 20, r. 3, of the Rules of the Superior Courts would have required that the plaintiff's statement of claim be delivered to the first defendant not later than the 26th June, 1964, and to the second defendant not later than the 7th July, 1964. This was not done. In response to a request of the 13th October, 1964, from the plaintiff's solicitor, both defendants consented to an extension of time for the delivery of the statement of claim to the 30th and 31st October, 1964, respectively. However, owing to further directions which counsel in the meantime gave as to certain steps which should be taken, the plaintiff's solicitor was not then in a position to deliver the statement of claim. Almost four years later, on the 25th July, 1968, the plaintiff's solicitor again requested both defendants to consent to a further extension of time for the delivery of the statement of claim. This request was refused. The plaintiff's motion, dated the 20th September, 1968, was then brought. The second defendant countered with his motion, dated the 21st October, 1968, to dismiss the plaintiff's action for want of prosecution.

The Master of the High Court in the course of his judgment cited from three English cases, namely, Rowe v. Tregaskes11; Fitzpatrickv. Batger & Co. Ltd.12; and Allen v. Sir Alfred McAlpine & Sons Ltd.13 Applying the principles set out in those cases, he was of opinion that...