Doyle v Gibney and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 18 January 2011
• Neutral Citation: [2011] IEHC 10
• Court: High Court
• Date: 18 January 2011

[2011] IEHC 10

THE HIGH COURT

[No. 4837 P/1997]

Doyle v Gibney & Ors

BETWEEN

SIOBHAN DOYLE

PLAINTIFF

AND

GEORGE GIBNEY, IRISH AMATEUR SWIMMING ASSOCIATION LIMITED, OLYMPIC COUNCIL OF IRELAND LIMITED AND IRISH AMATEUR SWIMMING ASSOCIATION (LEINSTER BRANCH) LIMITED

DEFENDANTS

RSC O.8 R1

RSC O.8 R2

BEHAN v BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

CHAMBERS v KENEFICK 2007 3 IR 526

BINGHAM v CROWLEY UNREP FEENEY 17.12.2008 2008/3/562 2008 IEHC 453

O'KEEFFE v G & T CRAMPTON LTD UNREP PEART 17.7.2009 2009/45/11311 2009 IEHC 366

MOLONEY v LACEY BUILDING & CIVIL ENGINEERING LTD UNREP CLARKE 21.1.2010 2010 IEHC 8

ADAM v MIN FOR JUSTICE 2001 3 IR 53

K (D) v CROWLEY 2002 2 IR 744

DOMESTIC VIOLENCE ACT 1996 S3

EAST DONEGAL CO-OPERATIVE LTD v AG 1970 IR 317

CONSTITUTION ART 34.1

CONSTITUTION ART 40

O'CONNOR v NEURENDALE LTD UNREP HOGAN 22.10.2010 2010 IEHC 387

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

GILROY v FLYNN 2005 1 ILRM 290

MCFARLANE v IRELAND 2010 ECHR 1272

SHEEHAN v AMOND 1982 IR 235

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

ROGERS v MICHELIN TYRES PLC & MICHELIN PENSIONS TRUST (NO.2) LTD UNREP CLARKE 28.6.2005 2005 53 11045 2005 IEHC 294

PRACTICE AND PROCEDURE

Delay

Summons - Renewal - Set aside - Summons renewed after 11 years - Whether good reason existed to justify renewal of summons - Provisional nature of ex parte orders - Courts' duty to ensure timely administration of justice - Constitution of Ireland 1937, Article 34.1 and 40 - Rules of the Superior Courts 1986 (SI 15/1986), O 8, rr 1 and 2 - Behan v Bank of Ireland (Unrep, Morris J, 14/12/1995); Adam v Minister for Justice [2001] 3 IR 53; DK v Crowley [2002] 2 IR 744, East Donegal Co-Operative Livestock (Mart) Ltd v Attorney General (1970) 104 ILTR 81, [1970] IR 317, O'Connor v Neurendale Ltd [2010] IEHC 387, (Unrep, Hogan J, 22/10/2010), Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290 and McFarlane v Ireland [2010] ECHR 1272 mentioned - Chambers v Keneflick [2005] IEHC 402, [2007] 3 IR 526; Bingham v Crowley [2008] IEHC 453, (Unrep, Feeney J, 17/12/2008), O'Keeffe v G & T Crampton Ltd [2009] IEHC 366 (Unrep, Peart J, 17/7/2009), Moloney v Lacey Building and Civil Engineering Ltd [2010] IEHC 8, (Unrep, Clarke J, 21/1/2010) and Sheehan v Amond [1982] IR 235 applied -Inordinate and inexcusable delay - Balance of justice - Risk of injustice and prejudice - Inherent unfairness - Inaction of plaintiff - Alternative remedy - Prejudice - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and Rogers v Michelin Tyres plc [2005] IEHC 294, (Unrep, Clarke J, 28/6/2005) applied - Renewal of summons set aside and proceedings struck out (1997/4837P - Hogan J - 18/01/2011) [2011] IEHC 10

Doyle v Gibney

Facts The plaintiff issued proceedings against the defendants in 1997 which related to events alleged to have occurred in 1991. Essentially the plaintiff claimed that she was sexually assaulted by the first named defendant and that the other defendants were negligent in their role or supervision of the first defendant. For some reason neither defendant was served with the plenary summons until December 2009. An ex parte order had been made in July 2009 by Peart J. to renew the summons for a period of six months. Following service of the summons the, the first named defendant entered an appearance and then brought a motion to have the proceedings struck out by reason of inordinate and inexcusable delay in both the commencement and prosecution of the proceedings. The second named defendant did not file an appearance but instead brought a motion pursuant to Order 8, rule 2 seeking to have the order of Peart J. set aside.

Held by Hogan J. in allowing the applications of both defendants: That on the basis of decided case law, any order made ex parte renewing a summons, must be regarded as being in the nature of a provisional order. Furthermore, a judge hearing a matter inter partes was not bound or constrained by any view formed by the judge who granted the order ex parte.

Adam v. Minister for Justice [2001] 3 I.R. 53 and East Donegal Co-operative v. Attorney General [1970] IR 317 followed and applied.

Having regard to the striking delay in this case, the fact that no obvious 'good reason' for renewing the summons was advanced and based on fundamental constitutional and European Convention on Human Rights principles, the order of Peart J. ought to be set aside.

In respect of the first named defendant, the risk of injustice and prejudice arising from the delay was obvious. The plaintiff would also suffer loss but the fact that she was pursuing a professional negligence action against her former solicitors was a relevant factor in terms of assessing the question of prejudice. Having regard to all matters, the prejudice that the first named defendant would suffer significantly outweighed the prejudice which would be visited on the plaintiff by reason of the gross and unexplained delay in pursuing the claim herein.

Reporter: L.O'S.

1 1. Should this Court permit the plaintiff to continue with proceedings which issued in 1997 and which relate to events which are alleged to have occurred in 1991 even though almost no steps have been taken by her to prosecute this litigation for the last thirteen years? This is the issue which now presents itself in the two motions whereby the second and third named defendants, while seeking slightly different relief, both effectively ask the Court to strike out these proceedings on the grounds of inordinate delay.

2 2. The plaintiff was born in January, 1972. She appears to have been a very promising swimmer and she was a member of prominent Dublin swimming club, Trojan Swimming Club. That club organised a training camp in Orlando, Florida in 1991. The essence of the plaintiff's case is that she was sexually assaulted by the first defendant while at that camp and that the others defendants were negligent in their role or supervision of the first defendant or the camp. In September 1997, the plaintiff's then solicitors wrote to both the Irish Amateur Swimming Association ("IASA") and to the Olympic Council of Ireland ("OCI") setting out the details of the claim. A month later, a plenary summons (which had issued on 27 ^th April, 1997) was served on both IASA and the OCI. The respective solicitors for both organisations wrote to inform the plaintiff's solicitors that their respective clients were limited companies, so that the service was invalid. Both sets of solicitors suggested that the proceedings should be amended to reflect the corporate status of their respective clients.

3 3. As it happens, the plaintiff's solicitors took up this suggestion, with the result that the Master of the High Court made an order on 24 ^th June, 1998, granting the plaintiff liberty to amend the title of the proceedings. That order was further amended on 11 ^th November, 1998, whereby the time for the service of the summons was extended for a further three weeks. For reasons which are not easy to fathom, neither defendant was ever served - either at that point or at any stage thereafter - until December 2009, some eleven years later. It appears that in July, 2009 an application was made ex parte to this Court (Peart J.) to renew the summons and on 13 ^th July, 2009, Peart J. made an order pursuant to O. 8, r. 1 renewing the summons for a six month period.

4 4. Following the service of the summons, the two defendants took a slightly different approach to this turn of events. IASA filed an appearance and then brought a motion in which the principal relief sought is that the proceedings should be struck out by reason of inordinate and inexcusable delay in both the commencement and prosecution of the proceedings. The OCI did not actually file an appearance, but they instead elected to bring a motion pursuant to O. 8, r.2 whereby they sought to have the order of Peart J. renewing the summons set aside. Nothing really turns on these different approaches, since the relevant principles are in many respects concurrent and overlapping. I propose to deal first with the application to set aside the order renewing the summons.

The OCI motion

5 5. As we have just seen, OCI move the court pursuant to O. 8, r. 2, which is in the following terms:

"In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order."

6 6. Order 8, r. 1 provides that the High Court may:

"if satisfied that reasonable efforts have been made to serve such defendant, or other good reason, may order that that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons."

7 7. Apart from the fact of the order itself, as it happens I know very little about what transpired before Peart J. There is no note of what happened before him and the papers in this motion do not disclose the basis on which it was urged that a "good reason" existed which would have justified the renewal of the summons. This is relevant because even if I considered it appropriate to do so, these facts alone would make the test articulated by Morris J. in Behan v. Bank of Ireland (High Court, 14 ^th December, 1995) difficult - if not altogether impossible - to apply in the present case.

8 8. In Behan, Morris J. held that any party moving the court under O. 8., r. 2 must demonstrate:

"that facts exist which significantly alter the nature of the plaintiff's application to the extent of satisfying the court that, had these facts been known at the original hearing, the order would not have been made."

9 9. This view, has, however, fallen into...