Irene Nolan v Board of Management of St. Mary's Diocesan School

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 11 January 2022
• Neutral Citation: [2022] IECA 10
• Docket Number: Record Number: 2021/95
• Year: 2022
• Court: Court of Appeal (Ireland)

Between/

Irene Nolan

Plaintiff/Appellant

and

Board of Management of St. Mary's Diocesan School

Defendant/Respondent

[2022] IECA 10

Noonan J.

Faherty J.

Binchy J.

Record Number: 2021/95

High Court Record Number: 2018/667P

THE COURT OF APPEAL

JUDGMENT (Ex Tempore) of Mr. Justice Noonan delivered on the 11th day of January, 2022

1 . The appeal before the court today concerns an application by the plaintiff for the renewal of a personal injuries summons that has expired. The plaintiff appeals against the refusal of the High Court to renew the summons.

2 . This is a bullying and harassment claim that arises out of the plaintiff's employment as an art teacher at the defendant's school in Drogheda. In her very detailed summons, the plaintiff alleges that she was subjected to various instances of bullying by other teachers at the school on various dates between the 30 ^th April, 2008 and the 24 ^th October, 2017, a period of nine and a half years. The conduct complained of did not occur continuously during that period because between 2011 and 2014, the plaintiff was out of work as a result of a repetitive strain injury to her hand. That also appears to have been the subject of litigation.

3 . In the context of this claim, the plaintiff appears to have consulted her general practitioner on the 3 ^rd October, 2017, who diagnosed that she was suffering from depression and furnished a medical report to her then solicitor, who instructed counsel to draft the summons. That summons was drafted and contained very detailed allegations against the plaintiff's four colleagues concerned. The plaintiff's former solicitors appear to have submitted a claim form to PIAB on the 22 ^nd December, 2017 and PIAB issued an authorisation to proceed on the 3 ^rd January, 2018.

4 . In the months that followed, the plaintiff appears to have decided to instruct her current solicitor, Mr. Tony Donagher, and on the 31 ^st May, 2018, the plaintiff's former solicitors transferred her file to Mr. Donagher. The plaintiff was already embroiled in issues with her school which appear to have included the bullying complaints. Those complaints, insofar as they concerned one of the teachers identified in the summons, was the subject of a prior investigation report in 2016 which appears to have concluded in the plaintiff's favour in relation to most of her complaints.

5 . On the 14 ^th June, 2018, the school principal threatened the plaintiff with disciplinary proceedings, the nature of which is unknown. On the 23 ^rd July, 2018, the summons was issued by Mr. Donagher in the form it had been drafted by counsel previously instructed. Shortly thereafter on the 16 ^th August, 2018, a second personal injuries summons issued but ultimately did not proceed. In the same month, on the 22 ^nd August, 2018, Terms of Agreement were signed between the plaintiff and the defendant and although the details of that are not available, counsel for the plaintiff informed the High Court that it related to the threatened disciplinary process and some form of arrangement appears to have been reached whereby the disciplinary process would be discontinued and the school would support the plaintiff's application to be permitted to retire on grounds of ill health. These events do however have some relevance in the context of the plaintiff clearly being in a position to give instructions in relation both to the second personal injuries summons and the terms of agreement.

6 . Thereafter, it appears that efforts focused on processing the plaintiff's retirement claim. That apparently entailed the plaintiff undergoing various medical assessments which she found stressful. On the 3 ^rd December, 2018, her application for retirement was refused and she appealed. Again, the refusal was upheld on appeal on the 30 ^th January, 2019 and at that stage, apparently the plaintiff considered seeking judicial review of the decision but was advised that as she had not exhausted all the internal remedies available to her, it would be inappropriate to pursue judicial review at that stage. Accordingly, she sought a review of the decision by the Department on the 5 ^th June, 2019 and on the 22 ^nd July, 2019, the Department again upheld the refusal. Coincidentally, this was also the date on which the summons expired on its first anniversary.

7 . On the 7 ^th November, 2019, the plaintiff lodged an ex parte docket with the High Court seeking to renew the summons. The application was heard by Murphy J. on the 18 ^th November, 2019 who ordered that the summons be renewed for a period of three months. As required by the new rule, the order also stated the reason for the renewal as being “in circumstances where a delay occurred as a result of a change in solicitors”. The summons was subsequently served on the defendant who then successfully applied to the court (Barr J.) to set aside the renewal.

8 . The judgment of Barr J. sets out in some detail the relevant parts of the various affidavits that were before the court so that it is unnecessary to recite these in detail. The ex parte application before Murphy J. was grounded upon Mr. Donagher's affidavit sworn on the 6 ^th November, 2019. The relevant averment appears at para. 6:-

“I say that an application was made by the plaintiff to the Department of Education seeking early retirement due to ill health. I say that this application required submission of reports and the plaintiff had to attend for examination by doctors appointed by the Department. I say that this was a very stressful procedure for the plaintiff and your deponent took the decision not to serve the personal injury summons herein to avoid adding to the stress the plaintiff was under in having to deal with two separate matters.”

9 . That was the sole and only reason given for seeking the renewal and clearly, it was quite unrelated to the plaintiff's change of solicitor. It must be assumed therefore that the reference in the order of Murphy J. to the reason being delay as a result of a change of solicitors is incorrect.

10 . The defendant's motion is grounded on the affidavit of its solicitor, Ms. Laura Prendiville of Mason Hayes & Curran. She emphasises the fact that Mr. Donagher himself took the decision not to serve the summons and it is not clear if he had obtained instructions from the plaintiff in this regard. That averment went unanswered in Mr. Donagher's subsequent replying affidavit and I must assume therefore that this decision by Mr. Donagher was taken without instructions. If that is so, it is a matter of some concern. It has not been suggested that the plaintiff was at any relevant time incapable of giving instructions and Mr. Donagher's decision is thus surprising, and all the more so because of its very serious implications for the plaintiff's case.

11 . In his replying affidavit, Mr. Donagher, in addition to the reason given in his original affidavit for not serving the summons, provides two additional reasons. He repeats the original reason, albeit in slightly different terms at para. 6 as follows:-

“Your deponent took the view that it was preferable to conclude the application for early retirement prior to progressing these proceedings as a measure of attempting to limit the scope of this litigation and also to protect the emotional health of the plaintiff, your deponent's client.”

12 . This in fact suggests two reasons, the first to limit the scope of the litigation and the second to protect the emotional health of the plaintiff. Mr. Donagher appears to suggest at para. 10 that he had decided not to progress the plenary proceedings while the retirement application was in being and it was only when this was finally refused that he considered reactivating these plenary proceedings. Evidently, following the final refusal, Mr. Donagher wished to consult with counsel again in relation to the proposed judicial review matter but as this was the end of the legal year, he sought to arrange a consultation with counsel for the commencement of the new term.

13 . Of note however, in para. 10 Mr. Donagher says that he quite wrongly understood that he should not properly bring a motion to renew the summons during the long vacation. There was some dispute between the parties as to whether this was being advanced as a reason grounding the application for renewal but it is difficult to understand its relevance in the affidavit if it is not. Mr. Donagher also refers to prejudice issues in his affidavit, suggesting that no real prejudice accrues to the defendant, again which is disputed, as against the very significant prejudice to the plaintiff if the summons is not renewed as her claim will likely be statute barred.

14 . After a detailed analysis of the facts and law, the High Court judge expressed the view that he was not satisfied that the reasons advanced by the plaintiff's solicitor for not serving the summons constituted special circumstances. He considered that, in the absence of medical evidence, there was no factual basis for Mr. Donagher's decision not to serve. Despite those findings, he went on to consider the issue of prejudice in any event, holding that there was in fact prejudice to the defendant. He accepted that the plaintiff would naturally be prejudiced by the fact that her claim might become statute barred if renewal was refused but that it was well settled that this alone could not justify renewal of the summons.

15 . The relevant provisions of the RSC governing the renewal of summonses are to be found in O. 8 which, in its...