Gemma Ni Chionnaith v John Fahy
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 08 April 2022 |
| Neutral Citation | [2022] IEHC 216 |
| Docket Number | [Record No. 2013/12697P] |
| Year | 2022 |
| Court | High Court |
and
[2022] IEHC 216
[Record No. 2013/12697P]
THE HIGH COURT
Negligence – Breach of duty – Inordinate and inexcusable delay – Defendant seeking an order dismissing the plaintiff’s claim by reason of inordinate and inexcusable delay – Whether the balance of justice favoured the dismissal of the action
Facts: The plaintiff, Ms Ni Chionnaith, claimed as against the first defendant, Mr Fahy, a barrister, for alleged negligence and breach of duty. Similar claims were advanced against the second defendant, National Union of Journalists, a trade union. The claims for negligence and breach of duty as against the first defendant turned on advices, both oral and written, which he provided to the plaintiff in July, 2009 and May, 2010 arising out of the termination of the plaintiff’s employment with Radio Telefís Éireann in December, 2009. By motion dated the 4th of March 2021, the first defendant sought an order dismissing the plaintiff’s claim by reason of inordinate and inexcusable delay. That motion issued in response to an earlier motion issued by the plaintiff seeking judgment in default of defence, albeit without first serving the necessary notice of intention to proceed in circumstances where the proceedings had lain dormant for more than twelve months.
Held by the High Court (Phelan J) that the period of delay was inordinate and while excuses had been presented, Phelan J did not consider that any explanation for the delay had been advanced such as would “legitimately excuse the delay” per Irvine J in Millerick v Minister for Finance [2016] IECA 206. Given that this was in large part a documents case, and given that both the former solicitor’s file and the second defendant’s files were available, Phelan J held that once the first defendant had delivered his defence, the matter should be in a position to progress to trial in early course. There did not seem to Phelan J to be any impediment to the proceedings being advanced to hearing within a short time-frame and there was no obvious basis for further delay. Phelan J held that the balance of justice remained in favour of the case proceeding. Having regard to the fact that absent culpable delay, a case may still be dismissed where pre-commencement delay has the consequence of creating a real and serious risk of an unfair trial, Phelan J was satisfied that the nature of the case together with the availability of a written record of the advice provided meant that it was not demonstrated on the balance of probabilities that there was a real risk of unfairness consequent upon pre-commencement delay. Accordingly, Phelan J was satisfied that there was no proper basis for the dismissal of proceedings on grounds of pre-commencement delay.
Phelan J proposed dismissing the application. In circumstances where the plaintiff had successfully resisted the application, it was Phelan J’s preliminary view that she should be entitled to the costs of the motion as against the first defendant to be adjudicated in default of agreement but subject to a stay of execution pending the determination of the proceedings.
Application dismissed.
JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 8 th day of April, 2022
. In these proceedings the plaintiff claims as against the first named defendant, who is a barrister, for alleged negligence and breach of duty. Similar claims are advanced against the second named defendant, a trade union.
. The claims for negligence and breach of duty as against the first defendant turn on advices, both oral and written, which he provided to the plaintiff in July, 2009 and May, 2010 arising out of the termination of the plaintiff's employment with Radio Telefís Éireann [hereinafter ‘RTÉ’] in December, 2009.
. By Motion dated the 4 th of March 2021, the first named defendant has sought an order dismissing the plaintiff's claim by reason of inordinate and inexcusable delay. This motion issued in response to an earlier motion issued by the plaintiff seeking judgment in default of defence (albeit without first serving the necessary notice of intention to proceed in circumstances where the proceedings had lain dormant for more than twelve months).
. The plaintiff claims that she was employed by RTÉ on a series of fixed terms contracts from July, 2005 until the termination of her employment in December, 2009.
. Following the termination of the plaintiff's employment, she instructed solicitors, who in turn briefed the first named defendant. The first named defendant met with the plaintiff in consultation initially in July of 2009 and again on the 11 th of May 2010. The first named defendant provided the plaintiff with certain written advices in relation to her employment in or about 27 th of May, 2010, including his views on her chances of succeeding in a claim pursuant to the provisions of the Unfair Dismissals Acts, 1977–2007. It is claimed that the first named defendant advised the plaintiff that she would have acquired the right to a contract of indefinite duration but did not advise her to secure the said right by bringing a claim pursuant to the Protection of Employees (Fixed Term Work) Act, 2003.
. The first named defendant's last involvement with the plaintiff was in May, 2010 because without utilising the services of the solicitor whom she had consulted and without briefing the first named defendant, she commenced proceedings pursuant to the provisions of the Unfair Dismissals Acts by lodging a claim which was received by the Rights Commissioner on the 21 st of June, 2010. This claim was heard on the 22 nd day of November 2010. The claim made is that the proceedings were conducted on the plaintiff's behalf by the second named defendant.
. The proceedings under the Unfair Dismissals Act 1977–2007 were unsuccessful at first instance before the Rights Commissioner. The plaintiff pleads that in a determination issuing on the 22 nd of February, 2011, the Rights Commissioner found that he had no function in the dispute which related to the status of the plaintiff's contract and that, by virtue of s. 2(2)(b) of the Unfair Dismissals Acts, 1977–2007, the plaintiff had waived her entitlement to bring a claim under the Acts and that her dismissal had occurred at the expiry of the term of her contract without it being renewed. Accordingly, the Rights Commissioner found that the plaintiff was not entitled to the protection of the Unfair Dismissals Acts 1977–2007 and her application failed with a finding that she was not unfairly dismissed.
. There is no evidence that any appeal was brought against the decision of the Rights Commissioner to the Employment Appeals Tribunal but it appears that the plaintiff thereafter proceeded to make further application to a Rights Commissioner seeking an extension of time within which to bring a claim pursuant to the Protection of Employees (Fixed Term Work) Act, 2003. By further decision of the Rights Commissioner dated the 19 th of January, 2012, this application was refused having regard to the six month statutory time limit pursuant to s. 14(4) of the 2003 Act for the plaintiff to bring a claim.
. Arising out of the foregoing, the plaintiff sought expert opinion as to whether the defendants were professionally negligent in the advice provided to her. She received an expert opinion in March, 2013 and thereafter proceeded to initiate these proceedings by Plenary Summons dated the 19 th of November 2013. A Statement of Claim was delivered by her then solicitors, on or about the 21 st of October 2014. In the proceedings she claims, inter alia, that the first named defendant was negligent by reason of his failure to advise her to make an application to establish her right to a contract of indefinite duration pursuant to the Protection of Employees (Fixed Term Work) Act, 2003 and failing to properly advise her in relation to a claim under the Unfair Dismissal Acts, 1977–2007. A claim is advanced for loss of a full-time permanent position with RTÉ and loss of career opportunities.
. Insofar as is relevant to the questions I must determine, the following chronology provides an overview of the relevant time-line and steps taken in the more than twelve years since the plaintiff was first advised, she says negligently, by the first named defendant.
| First named defendant's consultation with plaintiff (instructed by Padhraic Harris & Co.) | - 9 th July 2009 |
| First named defendant's consultation with plaintiff (instructed by Padhraic Harris & Co.) | - 11 th May 2010 |
| First named defendant's written advices to Padhraic Harris & Co. in respect of Plaintiff's employment rights | - 27 th May 2010 |
| Plaintiff makes a complaint under the Unfair Dismissal Act. Complaint received by EAT (the plaintiff is represented by NUJ – second defendant) | - 21 st June 2010 |
| Plaintiff's claim is heard by Rights Commissioner at a hearing (the plaintiff is represented by NUJ – second defendant) | - 22 nd November 2010 |
| Decision by Rights Commissioner (the plaintiff is represented by NUJ – second defendant) | - 22 nd February 2011 |
| Plaintiff makes complaint to the Labour Relations Commission and has a hearing before a Rights Commissioner (the plaintiff is represented by her new solicitors, Purdy Fitzgerald Solicitors) | - 10 th October 2011 |
| Decision made by Rights Commissioner (the plaintiff is represented by Purdy Fitzgerald Solicitors) | - 19 th January 2012 |
| Advices received from employment law expert stating that proceedings should have been lodged under the Protection of Employees (Fixed Term Work) Act, 2003 | - April 2013 |
| Letter Purdy Fitzgerald Solicitors for the plaintiff to first named defendant intimating a claim | - 26 th August 2013 |
| Letter Purdy Fitzgerald Solicitors for the... |
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