Eileen O'Connor v John Player and Sons Ltd, Rothmans of Pall Mall (Ireland) Ltd and Benson and Hedges (Dublin) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Ouirke
• Judgment Date: 12 March 2004
• Neutral Citation: [2004] IEHC 99
• Court: High Court
• Date: 12 March 2004

O'CONNOR v. JOHN PLAYER & SONS LTD

BETWEEN

EILEEN O'CONNOR

PLAINTIFF

AND

JOHN PLAYER AND SONS LTD., ROTHMANS OF PALL MALL (IRELAND) LTD. AND BENSON AND HEDGES (DUBLIN) LTD.

DEFENDANTS

[2004] IEHC 99

No. 15903P 1997

THE HIGH COURT

Synopsis:

- [2004] 2 ILRM 321

Facts: The plaintiff had issued proceedings in 1997 over the manufacture and making available by the defendants of cigarettes which had exposed the plaintiff to the risk of injury by smoking cigarettes when they knew that it was unsafe and dangerous to smoke cigarettes and had failed to warn the plaintiff of the dangers involved. The defendants had issued a motion seeking to have the plaintiff’s action dismissed for want of prosecution or alternatively for inordinate and inexcusable delay. The Master of the High Court had issued the order sought on the basis that there had been inordinate and inexcusable delay and the balance of justice required that the case not proceed. The plaintiff sought an order to set aside the Master’s order. Delays had arisen in the case with defendants contending that the plaintiff had failed to serve a statement of claim and the plaintiff’s claim that the defendants had failed to produce medical records as agreed. The statement of claim was delivered almost five years from the date of service of the plenary summons.

Held by Quirke J in dismissing the plaintiff’s claim. There had been inordinate delay by the plaintiff in proceeding with the action. Although there had been an agreement by the parties in relation to the collection of lifetime medical records this did not relieve the plaintiff of her obligation to prosecute her claim with reasonable expedition. Virtually nothing was done during the period of two and half years to prosecute the plaintiff’s claim. The defendants had at no stage been in default in relation to the case. Only after the issuing of notices seeking the dismissal of the claim did the defendants receive a statement of claim which was in general terms and in copperplate form. The interests of justice required that the plaintiff’s claim be dismissed.

Reporter: R.F.

Citations:

RSC O.63 r1(a)

RSC O.20 r3

RSC O.27 r1

RSC O.63 r1(8)

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510

HUGHES V HUGHES 1990 NI 295

COLLINS V BUS ATHA CLIATH (DUBLIN BUS) & BUS EIREANN UNREP SUPREME 22.10.1999 1999/5/1062

SHEEHAN V AMOND 1982 IR 235

DOWD V KERRY CO COUNCIL 1970 IR 27

O'DOMHNAILL V MERRICK 1984 IR 151

ROEBUCK V MUNGOVIN 1994 2 AC 224

BISS V LAMBETH HEALTH AUTHORITY 1978 1 WLR 382 1978 2 AER 125

SWEENEY V MCALPINE & SONS LTD 1974 1 WLR 200

THORPE V ALEXANDER FORK LIFT TRUCKS LTD 1975 1 WLR 1459 1975 3 AER 579

1 Mr. Justice Ouirke delivered on the 12th day of March 2004.

2 This is an appeal by the plaintiff against orders made pursuant to the provisions of O. 63 r. 1(a) of the Rules of the Superior Courts on 5 ^th December, 2003, 28 ^th November, 2002, and 10 ^th April, 2003, whereby the Master of the High Court dismissed the plaintiff's claims against the first, second and third named defendants respectively for want of prosecution.

3 The Plaintiff seeks orders from this court setting aside the orders of the Master and permitting her to proceed with her claim against the defendants.

4 It is pertinent to note from the outset that the plaintiff's claim is one of a series of approximately 138 similar claims, which have been commenced on behalf of various claimants by the plaintiff's solicitors by way of Plenary Summons against the three defendants.

5 The defendants are corporate bodies engaged in the manufacture, distribution and supply of tobacco and cigarettes within this jurisdiction. The plaintiff is claiming damages from the defendant for personal injuries, loss and damage allegedly sustained by the plaintiff by reason or negligence, breach of duty and breach of contract on the part of the defendants inter alia, (a) in exposing the plaintiff to the risk of injury by causing or permitting her to smoke cigarettes, when they knew, or ought to have known, that it was unsafe and dangerous for her to do so and (b) by continuing to manufacture, distribute and market cigarettes and tobacco without warning, or adequately warning, the plaintiff of the damagers associated with smoking and exposure to tobacco and tobacco smoke.

6 Claims in similarly, if not identical, terms have been made by the plaintiff's solicitors on behalf of 137 other persons and it is acknowledged by the parties that the existence of those other claims made concurrently with the plaintiff's claim by the same solicitors against the same defendants has a relevance to this appeal.

7 The Plaintiff's claim against the defendants stands dismissed by the Master of the High Court on the grounds that the plaintiff has been guilty of such inordinate and inexcusable delay in prosecuting her claim that the balance of justice requires that her action should not proceed.

8 The plaintiff now seeks and order setting aside the Master's order and permitting the plaintiff to proceed with her action.

RELEVANT FACTS

9 1. The plaintiff's claim was commenced by the issue of a plenary summons on 23 ^rd December, 1997. Some 364 days later (on the 22 ^nd December, 1998), the Summons was served on the defendants. Within a further 30 days (by 21 ^st January, 1999), appearances had been entered on behalf of all three defendants.

10 2. On 12 ^th and 13 ^th March, 2002, notices of intention to proceed were issued on behalf of the defendants. Thereafter, on 5 ^th September, 2002 and 17 ^thSeptember, 2002, notices of motion were issued on behalf of the third and second named defendants respectively seeking the relief which is the subject of this appeal.

11 On 22 ^nd and 26 ^th November, 2002, statements of claim were delivered on behalf of the plaintiff outlining the plaintiffs claim against all three defendants in identical terms.

12 By order of the Master dated the 28 ^th November, 2002 the third named defendant was granted the relief which is the subject of this appeal. By order of the Master dated 10 ^th April, 2003 the second named defendant was granted the relief which is the subject of this appeal.

13 On 20 ^th August, 2003, a notice of motion was issued on behalf of the first named defendant seeking the relief which is the subject of this appeal and that relief was granted by order of the Master of the High Court dated 5 ^th December, 2003.

14 It follows from the foregoing that a period of four years and eleven months elapsed between the date of issue of the plenary summons in these proceedings and the delivery of the statement of claim. Two of the defendants had issued notices of motion seeking to dismiss the plaintiff's claim for want of prosecution some two months before the statement of claim was delivered. The other defendant (the first defendant) issued a similar notice nine months after the delivery of the statement of claim.

15 3. By letter dated 19 ^th February, 1999, Messrs. Arthur Cox and Company, solicitors on behalf of the third named defendant, wrote to the plaintiff's solicitors, inter alia, in the following terms:

"It is clear that all medical records and notes relating to your clients are of critical importance and of relevance to the proceedings.

We write to request that you immediately take all necessary steps to ensure that your clients and all doctors, hospitals, and other parties, who may hold medical and other records and documents relating directly or indirectly to your client's health carefully identify and preserve such records and documents.

We believe that it would be of benefit to all parties to the litigation referred to above that all medical records and notes relating to your clients be collected from all possible locations at which they may currently be held. We would be prepared to undertake the task of collection of medical records and notes for the purposes detailed above, subject to any arrangements that might need to be agreed with the other parties to this litigation. We should be obliged if you would take your client's instructions and let us know whether or not your clients are prepared to consent to this proposal."

16 In response the plaintiff's solicitors replied by letter dated 3 ^rd March, 1999, in the following terms:

"With reference to your letter dated 19 ^th ult, we have considered same and subject to our client's instructions we would be willing to provide you with the required authorities on the following basis; "

1. That copies of the medical records and notes are made available to us immediately.

2. That the authority is provided on a case by case basis.

3. That we are copied on all communications relating to the collection of our client's medical records and notes.

4. That the defendants firm of solicitors which collects the medical records and notes is responsible for all costs associated therewith.

17 On receipt of your consent to the above we will forward .... Authority Forms to our clients for signature and return. We will then forward same to you on a case by case basis …"

18 Messrs. Arthur Cox and Company responded by letter dated 1 ^stApril, 1999 indicating that all three defendants were in agreement with the proposed arrangement for the collection of medical records. That method of collection was adopted by the parties to these proceedings (and by the other 137 claimants) in the terms outlined in the exchange of correspondence to which I have just referred.

19 4. By letter dated 26 ^th November, 2001, Messrs. Arthur Cox & Company, on behalf of the third defendant, wrote to the plaintiff's solicitors in the following terms:

"We refer to the above proceedings which were issued on 23 ^rd December, 1997, on behalf of your client Eileen O'Connor. We accepted service of the Plenary...