O'Keeffe v G & T Crampton Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 17 July 2009
• Neutral Citation: [2009] IEHC 366
• Court: High Court
• Date: 17 July 2009

[2009] IEHC 366

THE HIGH COURT

Record Number: No. 11119P/2001

O'Keeffe v G & T Crampton Ltd & Patrick O'Connor Builders (Waterford) Ltd

Between:

Humphrey O'Keeffe

Plaintiff

And

G & T Crampton Limited and Patrick O'Connor Builders (Waterford) Limited

Defendants

RSC O.8 r1

ROCHE v CLAYTON & ORS 1998 1 IR 596

RSC O.8

RSC O.8 r2

BAULK v IRISH INTERNATIONAL INSURANCE CO LTD 1969 IR 66

BINGHAM v CROWLEY & ORS UNREP FEENEY 17.12.2008 2008/3/562 2008 IEHC 453

COMPANIES ACT 1963 S379

CHAMBERS v KENEFICK 2007 3 IR 526 2005 IEHC 402

MARTIN v MOY CONTRACTORS LTD UNREP SUPREME 11.2.1999 1999/17/5117

PRACTICE AND PROCEDURE

Summons

Renewal - Set aside renewal - Delay of six years from date of issue of summons to application to renew - Reasons for failing to have plenary summons renewed at earlier date - Whether oversight and pressure of work on part of plaintiff's solicitor good reason for renewal - Whether defendants prejudiced by intervening lapse of time - Whether delay inordinate or inexcusable -Whether order setting aside renewal order constituted denial of plaintiff's right to fair procedures - Prejudice - Overall interests of justice - Personal blamelessness of plaintiff - Whether question of personal blameworthiness relevant factor when considering balance of justice - Roche v Clayton [1998] 1 IR 596, Baulk v Irish National Insurance Co Ltd [1969] IR 66, Bingham v Crowley [2008] IEHC 453, (Unrep, HC, Feeney J, 17/12/2008), Chambers v Kenefick [2005] IEHC 402, [2007] 3 IR 526 and Martin v Moy Contractors Ltd [1999] IESC 26, (Unrep, SC, 11/2/1999) considered - Rules of the Superior Courts 1986 (SI 15/1986) O 8, r 1- Order renewing summons set aside (2001/11119P - Peart J - 17/7/2009) [2009] IEHC 366

O'Keeffe v G & T Crampton Ltd

1 Mr Justice Michael Peart delivered on the 17th day of July 2009:

2 This is an application by the first named defendant to set aside an order made by the High Court (Ms. Justice Clark) on the 5 ^th November 2007 to renew the Plenary Summons issued herein on the 5 ^th July 2001 for a period of six months from the date of that order. It would appear that the second named defendant company is now dissolved and therefore is not a party to this application.

3 In the normal way an application to renew those proceedings would be made ex parte pursuant to the provisions of Order 8, rule 1 of the Rules of the Superior Courts ("RSC"). However it appears that the application was made by way of Notice of Motion which issued on the 15 ^th October 2007, and which was directed to each of the defendants at what was believed to be their respective registered offices. On the return date for the Notice of Motion there was no representation by or on behalf of either defendant and the application proceeded on an unopposed basis. The explanation for the fact that there was no appearance on behalf of the first named defendant when the application to renew the Plenary Summons was moved is that the address at which the said Notice of Motion and Grounding affidavit was served by post was not the correct address, and accordingly the documents were not received. This much appears to be accepted by the plaintiff as being the situation.

4 In her affidavit sworn to ground the present application, which is sworn on the 4 ^th March 2008, Caroline Murphy, solicitor for the first named defendant states that the accident which gave rise to the issue of these proceedings is alleged to have occurred on the 10 ^th October 2000, and that the last correspondence received by her clients in relation to the matter is dated 17 ^th April 2002. She refers to the fact the only step taken by the plaintiff since that date was the filing of the application to renew the Plenary Summons which resulted in the said order made on the 5 ^th November 2007.

5 The correspondence which passed between the plaintiff's solicitor and Royal & Sun Alliance Plc, the insurance company for the first named defendant includes a letter dated 9 ^th October 2001 whereby a medical examination of the plaintiff to take place on the 22 ^nd October 2001 was notified to the plaintiff's solicitor. The plaintiff did not attend for that examination, and when asked about this by letter dated 6 ^th November 2001, the plaintiff's solicitor delayed in responding to that letter until he wrote by letter dated 4 ^th March 2002 when he informed the insurance company that the reason for the plaintiff's failure to attend was that he had failed to inform the plaintiff of the appointment. He sought another appointment for examination and confirmed that he would pay the non-attendance fee which had been incurred. He also sought the identity of a solicitor who would accept service of the proceedings. The insurance company replied to that letter by the letter dated the 11 ^th April 2002, already referred to, stating that they were awaiting some further information and were not yet in a position to nominate solicitors to accept service. The letter concluded by stating that they hoped to be in a position to do so "in the near future".

6 Nothing further happened until the application to renew the proceedings was brought in November 2007, although I note that the affidavit to ground that application had been sworn by the plaintiff's solicitor on the 23 ^rd July 2007. The arrival of the long vacation at the end of July 2007 will presumably have been the reason for the delay in moving the application prior to November 2007.

7 Importantly that grounding affidavit stated the reason for failing to have the Plenary Summons renewed at any earlier date in the following way:

"I say the reasons for failing to have the said summons renewed are and were that same was lost in the office and due to pressure of work the service thereof within the period of validity was overlooked but nevertheless say that as each of the defendants were put on notice of an intention on behalf of the plaintiff to proceed herein, the said defendants are not prejudiced by any intervening lapse of time."

8 No further averment was made to address the delay of some six years from the date of issue of the said summons.

9 In her affidavit grounding this application to set aside the renewal order, Ms. Murphy states that such a long delay cannot simply be explained away by stating, as Mr O'Connor has, that the summons was lost and pressure of work. She states also that the first named defendant is severely prejudiced at this stage in defending the plaintiff's claim, and that in accordance with her client's normal practice, the files relating to this case was closed in January 2004 on the basis that the claim was in all probability statute barred since nothing had been heard from the plaintiff's solicitor since April 2002. She goes on to say that efforts to locate the case file have been unsuccessful. What she describes as a "very limited amount of documentation" has been located from their archives, and in particular there is no trace of their investigator's report which is one of the earliest steps taken by them upon notification of a claim being made, and that such a report would normally have involved an attendance at the locus of the accident, photographing same, obtaining relevant documentation and speaking to any witnesses involved. She refers to the failure by the plaintiff to attend the medical examination which had been notified to the plaintiff's solicitor to which I have already referred. I should add at this stage that in a later affidavit sworn on the 11 ^th June 2008, Ms Murphy states that the insurance claims inspector has since "uncovered further documentation in relation to this claim, comprising photographs, accident report form, safety statement and witness statement", but that the original claims file has not been recovered.

10 Mr O'Connor has sworn an affidavit on the 25 ^th April 2008 in reply to that affidavit of Ms. Murphy. In that affidavit he outlines the nature of the accident which is alleged to have caused the personal injury to the plaintiff. It appear to be alleged that the plaintiff was engaged in working on a construction site and that the fell from an unsecured scaffolding. It is alleged that site manager of the first defendant company was on site at the time and became aware of the accident, and further that he required the workmen on the site to complete their tasks within a short time and that they were required to work long hours to ensure that a penalty clause would not be invoked. He goes on to state that this is the type of claim where the doctrine of res ipsa loquitur applies and that in all probability the only issue to be decided when the case is heard will be the quantum of damages. He suggests therefore that the first named defendant is not in reality prejudiced in the manner alleged.

11 Mr O'Connor states also that the first named defendant failed to bring any application to have the proceedings of which they were aware dismissed for want of prosecution. However that ignores the fact that the proceedings had never been served. He suggests also that the defendants can be seen as having acquiesced in the renewal of the proceedings by failing to appear on that application in order to oppose it. It would appear that at the time he swore that affidavit he had not been made aware that the first named defendant had not in fact received the Notice of Motion in question as it had been served at an out of date address. He refers also to the failure of the insurers to revert to him following their letter dated 17 ^th April 2002 when they had stated that they hoped to be in a position to nominate solicitors to accept service "in the near future", and suggests that this is indicative of a wish on their part to let time run in the hope that they would not have to face a decree for damages.

12 Mr O'Connor suggests also that it...