Gallagher v P.W. Shaw & Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 556
• Court: High Court
• Docket Number: [2017 No. 344 CA]
• Date: 31 July 2018

[2018] IEHC 556

THE HIGH COURT

MacGrath J.

[2017 No. 344 CA]

BETWEEN

PADDY GALLAGHER

PLAINTIFF

AND

P.W. SHAW & COMPANY LIMITED

DEFENDANT

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Defendant seeking an order dismissing the plaintiff’s claim for want of prosecution – Whether the delay was inordinate and inexcusable

Facts: The defendant, P.W. Shaw & Company Limited, appealed to the High Court from an order of Her Honour Judge Flanagan made on 21st November, 2017 whereby she refused the defendant’s application for an order pursuant to the Circuit Court Rules 2001, and in particular, O. 33, r. 5, dismissing the claim of the plaintiff, Mr Gallagher, for want of prosecution and extending the time for the delivery of a statement of claim for a period of seven days. The application was brought by way of notice of motion to the Circuit Court dated 3rd January, 2017. The underlying proceedings arose out of an accident which befell the plaintiff on 19th August, 2003. They were instituted in the High Court but subsequently remitted to the Circuit Court by order made on 24th January, 2011.

Held by MacGrath J that, in all the circumstances, the delay in this case was inordinate and inexcusable. In MacGrath J’s view, the balance of justice favoured its dismissal.

MacGrath J held that he would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice MacGrath delivered on the 31st day of July, 2018.

1 This is an appeal from an order of Her Honour Judge Flanagan made on 21st November, 2017 whereby she refused the defendant's application for an order pursuant to the Circuit Court Rules 2001, and in particular, O. 33, r. 5, dismissing the plaintiff's claim for want of prosecution and extending the time for the delivery of a statement of claim for a period of seven days.

2 The application was brought by way of notice of motion to the Circuit Court dated 3rd January, 2017.

3 The underlying proceedings arise out of an accident which befell the plaintiff on 19th August, 2003. They were instituted in the High Court but subsequently remitted to the Circuit Court by order made on 24th January, 2011.

4 The plaintiff purchased a ladder from the defendant hardware company. He had an accident while using it and pleads that the fall was caused by reason of its defective condition. A plenary summons was issued on 23rd December, 2003 – it was in the old short form, and predated the provisions and requirements of the Civil Liability and Courts Act 2004. The plenary summons was issued against P.W. Shaw Limited and was served on J.A. Shaw & Co. solicitors on 26th March, 2004.

5 By letter dated 29th March, 2004, the defendant solicitors acknowledged receipt of the plenary summons but did not at that time enter an appearance. They wrote that they had requested their client to let them have full details of the case ‘ so that the Plaintiff's case can progress and […] we will accept service of the Plenary Summons in the interim’. At this time correspondence was also taking place between the plaintiff's solicitor and the reputed supplier of the ladder, National Hardware. By letter of 14th April, 2004, the plaintiff's solicitor advised the defendant's solicitor that, having discussed the matter with counsel, ‘it may well be the case that we may be able to re-issue proceedings against National Hardware to avoid difficulty from your Client's viewpoint’. A further letter issued on 18th August, 2004 from the plaintiff's solicitor to the defendant's solicitor stating that nothing had been heard from the proposed other parties and requested that the plenary summons be returned with acceptance of service duly indorsed thereon. The defendant's solicitor wrote to the plaintiff's solicitor on 20th August, 2004 stating, inter alia, that:-

‘I had not realised that we had the original Plenary Summons on file and on looking at the writ on today's date, it would appear that the title of the Defendant is incorrect as it should be PW Shaw & Company Limited, which is the correct title’.

He also indicated that the title could be amended by consent in the Central Office of the High Court. By letter of 8th September, 2004, the defendant's solicitor forwarded to the plaintiff's solicitor a copy of the certificate of incorporation of the defendant company (which specified the name of the company as ‘ P. W. Shaw and Company, Limited’). He requested that the plaintiff amend the summons to correct the title of the defendant to ‘ PW Shaw & Co. Limited’. It was also confirmed that if it was intended to proceed under the plenary summons which had been served, a letter of consent to the amendment would be forthcoming.

6 By further letter dated 29th September, 2004, the solicitors for the plaintiff wrote a letter to a firm of solicitors acting on behalf of National Hardware Limited, advising that they would be joined as a ‘ co-defendant/third party’. By further letter of 6th October, 2004, J.A. Shaw & Co. Solicitors wrote to the plaintiff's solicitors advising them that while an insurance company had provided an indemnity to National Hardware it did not extend to P.W. Shaw & Co. Limited. They sought clarification as to whether the plaintiff had retained custody of the ladder as they wished to investigate the nature of any defect complained of and they further requested confirmation that the plaintiff's solicitors would proceed with the amendment to the summons. The insurance company which had now become involved on behalf of the suppliers of the ladder, advised the defendant's solicitors on 7th October, 2004 that they would not object to SGB Hardware Limited being named as defendant. This letter was forwarded to solicitors for the plaintiff on 18th October, 2004. It was therein confirmed that it was understood that SGB Hardware Limited traded under the title of National Hardware. The plaintiff's solicitors wrote on 19th October, 2004 stating that the ladder had been given to the manufacturers by the defendant and that nothing further had been heard from them. It appears that the ladder had been made available for inspection before the plaintiff's engineers had an opportunity to examine it. On 28th October, 2004, the solicitors for the defendant advised the solicitors for the plaintiff that the ladder would be returned and made available for inspection but, although they had understood SGB Hardware Limited traded under the name of National Hardware, this did not appear to be correct ‘ and they are in fact two separate Companies’. It was suggested that SGB Hardware Limited appeared to be the supplier of the ladder to National Hardware Limited.

7 On 8th November, 2004, there was further correspondence from solicitors representing National Hardware.

8 Communication and correspondence continued throughout November, 2004 regarding the inspection of the ladder. The plaintiff's solicitor, frustrated with events, wrote to the solicitors for the defendant on 31st January, 2005 expressing unhappiness at a lack of communication from the insurers of the manufacturer of the ladder and stating that he would seek High Court orders against all parties to compel them to assist or comply with the request for the return of the ladder. By letter dated 31st January, 2005 to the solicitors representing National Hardware Limited, the plaintiff's solicitors once again sought the return of the ladder and correspondence continued in this vein for a period at least up to February, 2005. In the meantime, proceedings were neither issued nor served against the manufacturer or suppliers of the ladder.

9 By letter dated 29th March, 2005, solicitors for the defendant advised the plaintiff's solicitors that they had received confirmation that the ladder had been returned to their client and informed him that an engineering inspection was being arranged. By letter of 8th April, 2005, the solicitor for the plaintiff stated that they had no objection to such inspection taking place prior to the ladder being released.

10 Correspondence continued throughout May and June, 2005 in respect of the proposed joint inspection. This included correspondence from solicitors acting for a proposed third party concerning the inspection. Ultimately, a joint inspection took place on 18th July, 2005.

11 By letter of 20th July, 2005 the solicitors for the defendant notified the plaintiff's solicitor that the matter of rectification of the title of the plenary summons should be dealt with ‘ as it would appear that there will be other parties to be joined, either by the Plaintiff, or present Defendant’. By letter of 26th July, 2005, the plaintiff solicitors advised the defendant solicitors that a motion was to be served in relation to the joinder of ‘ co-plaintiffs’ and as soon as they heard from their town agents they would be in contact.

12 By letter of 3rd October, 2005, the solicitors for the defendant enclosed on a without prejudice basis, an engineer's report which they had received. Once again it was restated that the amendment had to be dealt with. A reminder was sent on 21st November, 2005. By letter dated 28th November, 2005, the plaintiff solicitors wrote to the solicitors for the defendant advising that ‘ the application to join a Third Party should be brought as quickly as possible’. He advised that he was still awaiting the report of the engineer. On 30th November, 2005, the defendant solicitors wrote to the plaintiff solicitors stating that they may have been at cross purposes because any application to join a third party would be made by the defendant but that could only be done when an application was made to amend the plenary summons. By letter of 5th December, 2005, the plaintiff's solicitor advised that he would keep the solicitors for the defendant apprised of the application to join co-defendants and any amendments required. A letter of reminder dated 6th February, 2006 was written by the...