Eugene O'Connor (plaintiff) v Nurendale Ltd T/A Panda Waste Services

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 22 October 2010
• Neutral Citation: [2010] IEHC 387
• Court: High Court
• Docket Number: 84 CA/2010
• Date: 22 October 2010

O'Connor v Nurendale Ltd t/a Panda Waste Services

BETWEEN/

EUGENE O'CONNOR

PLAINTIFF

AND

NURENDALE LIMITED T/A PANDA WASTE SERVICES

DEFENDANT

[2010] IEHC 387

84 CA/2010

THE HIGH COURT

PRACTICE AND PROCEDURE

Access to courts

Appeal from Circuit Court - Judgment for failure to deliver defence - Error by solicitor - Defendant unrepresented at hearing - Discretion of court to allow defendant to defend case on its merits - Counsel for defendant seriously ill during relevant time - Prejudice - Whether discretion should be exercised in defendant's favour - Whether case unanswerable - Whether plaintiff would suffered irremediable prejudice - Buckley v Attorney General [1950] IR 67 followed; Gilroy v Flynn [2004] IESC 98, (Unrep, SC, 3/12/2004) and McFarlane v Ireland (App No 31333/06, Unrep, ECHR, 10/9/2010) - Constitution of Ireland 1937, art 34.1 - European Convention on Human Rights, art 6 - Appeal allowed (2010/84CA - Hogan J - 22/10/2010) [2010] IEHC 387

O'Connor v Panda Waste Services

Facts The plaintiff received in the Circuit Court a judgment against the defendant in default of delivery of defence despite extension of time to do so. The solicitor for the defendant contended it was an error that the third motion for judgment was not acted upon by their office. Additionally counsel for the defendant had been seriously ill. The defendant applied to the court to set aside the Circuit Court judgment as a genuine error had prevented them filing their defence in time.

Held by Hogan J in reluctantly acceding to the application:

The court can exercise its discretion in granting the application as the solicitor for the defendant admitted her error in failing to file in time, added to this there was the illness of counsel.

While these delays are frustrating for the plaintiff it would be unfair to deny the defendant the opportunity to defend its case on basis it had a genuine case to answer.

The sum claimed by the plaintiff was lodged to court following the Circuit Court ruling and this courts orders that it remains that way until the outcome of the case is decided.

There is a constitutional duty upon the courts to ensure litigation is conducted in a timely to ensure the right of access to the courts is upheld.

Reporter: BD

CONSTITUTION ART 34.1

BUCKLEY v AG 1950 IR 67

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

GILROY v FLYNN 2005 1 ILRM 290

MCFARLANE v IRELAND 2010 ECHR 1272

1 JUDGMENT of Mr. Justice Hogan delivered on the 22nd October, 2010

2 1. This is an appeal from an order of Her Honour Judge Linnane dated April 20 ^th ,2010 whereby she refused to set aside the default judgment obtained by the plaintiff on April 12 ^th, 2010. In his civil bill dated November 4 ^th, 2010, the plaintiff claimed that on the 5 ^th November 2007 the defendant had offloaded a skip which had the effect of damaging the plinth stone supporting the cast iron railings surrounding a site at St. George's Church, Hardwicke Place, Dublin 1, thereby causing serious damage to a wall below. The plaintiff is the owner of these premises and it is contended that there was displacement of the stone capping and partial collapse of the wall. The plaintiff now claims damages in the sum of €18,846. It is only fair to record that liability is denied in full by the defendant.

3 2. The defendant entered an appearance on February 19 ^th, 2009. There then followed several exchanges involving requests for further particulars but, as no defence had been delivered, on November 26 ^th, 2009, the Circuit Court ordered that the defendant deliver a defence within two weeks of that date. No defence was filed within the time stipulated and the plaintiff brought a further motion seeking judgment in default of defence. This culminated in a further order of the Circuit Court on February 9, 2010 allowing the defendant yet a further two weeks to deliver its defence. That period of...