Kestutis Naudziunas v OKR Group

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 November 2020
• Neutral Citation: [2020] IEHC 566
• Date: 17 November 2020
• Court: High Court
• Docket Number: High Court Record No. 2019 No. 423 CA

Between

Kestutis Naudziunas

Plaintiff

and

OKR Group

Defendant

[2020] IEHC 566

High Court Record No. 2019 No. 423 CA

Circuit Court Record No. 2013 No. 004737

THE HIGH COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

JUDGMENT of Mr. Justice Richard Humphreys delivered on Tuesday the 17th day of November, 2020

1 The defendant company operates Burger King fast food restaurants across Ireland including in Tallaght where the plaintiff worked. The plaintiff has brought the present proceedings seeking damages for injury said to have been occasioned by bullying and harassment. The defendant now seeks to have the plaintiff's proceedings dismissed on the grounds of delay.

Facts and procedural history

2 The plaintiff entered employment with the defendant in June 2008. He claims that he was harassed on various dates which are set out in the personal injuries summons between 22nd October, 2010 to 6th August, 2012. But in replies to particulars, which are undated, received on 27th November, 2013, he pushes the incidents back a little further to early 2010.

3 An application to PIAB was made on 4th February, 2013. The PIAB authorisation issued on 7th February, 2013 and a personal injury summons in the Circuit Court was issued dated 28th June, 2013. The main focus of the complaint is a tort claim regarding bullying, but it is also alleged that this is a breach of contract and he further claims failure to provide him with a written statement of his terms and conditions of employment.

4 The summons was served on 12th July, 2013. The defendant served a notice seeking further information on 22nd August, 2013 which ultimately was replied to quite some time later. On the same date, a notice was served seeking medical records. That was not replied to, but seems to have been superseded by a discovery process. The defendant then served a notice for particulars on 28th August, 2013. There was a delay in delivering the defence and the plaintiff had to bring a motion in late February 2014 which was ultimately struck out on consent. On 4th March, 2014 the defence was delivered.

5 The plaintiff issued a letter seeking discovery on 12th September, 2014. On 20th March, 2015 the defendant agreed to certain categories of discovery. The plaintiff replied on 28th May, 2015 regarding a disputed category and the defendant replied further on 23rd June, 2015. The plaintiff wrote again on 6th April, 2016 setting out the position regarding discovery and indicating that if consent to the disputed category was not forthcoming within 14 days, a motion regarding discovery would issue. The defendant replied seeking to negotiate the discovery on 15th June, 2016 and the plaintiff responded on 20th June, 2016 but this was followed by a further delay on the defendant's side in filing the affidavit of discovery.

6 The plaintiff replied to a request for further information on 18th August, 2016 and on the same date delivered a hotly contested document described as a notice of further particulars leading to the commission of the wrongs. This was accompanied by an affidavit of verification of the same date. The defendant's affidavit of voluntary discovery was sworn on 1st February, 2017.

7 Meanwhile on 27th January, 2017 the defendant sought voluntary discovery. On 23rd February, 2017 the plaintiff requested that that should be put on hold but ultimately swore an affidavit of discovery on 5th September, 2018.

8 On 6th September, 2018 the plaintiff wrote setting out a schedule of medical reports and also wrote on the same date giving notice of intention to serve notice of trial. The defendant wrote back on 19th September, 2018 stating that it was not appropriate to issue a notice of trial at the present time, complaining about further particulars of the plaintiff's case, the adequacy of discovery and the lack of a schedule of special damages. The plaintiff replied broadly disagreeing with that view of the case on 20th September, 2018 and on the same date the defendant wrote setting out particulars of the alleged infirmities in the plaintiff's discovery. The plaintiff replied by email of the same date stating that the documents discovered were those within the plaintiff's procurement or control. But there were further complaints from the defendant's side on 24th and 27th September, 2018 leading to a letter from the plaintiff on 1st October, 2018 saying that the affidavit of discovery would be amended and a schedule of special damages would be furnished together with an affidavit of verification. That letter stated that, “[i]t would seem that your clients are seeking to raise a myriad of issues so as to prevent this case coming on for Trial.”

9 The defendant then issued a notice of motion to dismiss the proceedings on grounds of delay dated 3rd January, 2019 grounded on an affidavit of David John Harris of 2nd January, 2019. A replying affidavit was sworn on 8th February, 2019 and Mr. Harris further replied on 5th and 25th March, 2019.

10 When the motion came on for hearing in the County Registrar's Court on 8th May, 2019 Mr. Roland Rowan B.L. appeared for the plaintiff and Mr. Gerard F. Burns, Solicitor, for the defendant. Her Honour Judge Verona Lambe, Specialist Judge of the Circuit Court, granted the relief sought in the motion together with costs of both the motion and the proceedings to that date including a certificate for counsel.

11 On 17th May, 2019 the plaintiff issued a motion appealing that order to the Circuit Court grounded on an affidavit of Mr. Burns of 16th May, 2019. That appeal came on for hearing on 10th October, 2019. Mr. Frank Beatty S.C (with Mr. Roland Rowan B.L.) appeared for the defendant and Mr. James Lawless B.L. for the plaintiff. Her Honour Judge Jacqueline Linnane dismissed the appeal, but varied the order by making no order as to the costs of the proceedings prior to the motion before the County Registrar's Court. She also awarded the costs of the appeal to the Circuit Court to the defendant including a certificate for senior counsel.

12 The plaintiff appealed the decision on the motion to dismiss to the High Court on 18th October, 2019 and I am now dealing with that appeal, which of course is determined by way of rehearing. I have received helpful submissions from Mr. Frank Beatty S.C. (with Mr. Roland Rowan B.L.) for the defendant and from Mr. Darren Lehane S.C. (with Mr. James Lawless B.L.) for the plaintiff.

The note of the Circuit Court decision

13 Order 18, r. 7 of the Circuit Court rules provides for the appeal procedure from the County Registrar to the court to be by way of notice of motion to review the decision of the County Registrar. The rules don't specifically say that that is by way of rehearing and the submissions in the Circuit Court here did address the reasoning of the County Registrar rather than considering it irrelevant. In practice, the appeal is in fact by way of rehearing and it doesn't seem to be necessary or even appropriate to address the reasoning of the County Registrar in such a context. However, there can be no doubt about the situation in terms of the appeal from the Circuit Court to the High Court. A consequence of the rehearing nature of that procedure is that the moving party goes first even if that party won in the court below, which is what happened here. Indeed by far the best procedure in a Circuit Appeal (leaving aside cases where it is not appropriate to withhold such information, such as in family law), is simply not to inform the High Court of the decision below (see Mulcahy v. Cork City Council [2020] IEHC 547, ( [2020] 10 JIC 2104 Unreported, High Court, 21st October, 2020)). Here that procedure wasn't adopted, but the information provided was limited to some extent, in that I wasn't given a note of the judgment below. That was probably a correct approach in the sense that, in a rehearing context, the less information the court has about the decision below, the better. Admittedly, after the decision is made and when one gets to costs, there may be relevance in looking at what happened in the Circuit Court (see ( [2020] IEHC 119 Doyle v. Donovan Unreported, High Court, 28th February, 2020), per Simons J., at para. 7), but that only arises after the substantive decision. The notice of appeal, order and judgment if any needs to be lodged with the Central Office or county registrar as the case may be (O. 61, r. 3 RSC), but that doesn't mean those documents should be shared with the court. Considering the matter, to share such materials with the High Court could create the impression that they had some weight on the merits of the appeal, which they don't in a rehearing context. Hay v. O'Grady [1992] 1 I.R. 210 has no relevance to an appeal by way of rehearing. The court starts by turning a fresh page.

The notice of further particulars of circumstances surrounding the alleged wrongs

14 In the notice giving further particulars of the circumstances surrounding the alleged wrongs, the plaintiff contends that it is his belief that the reason for the “aggressive and/or inappropriate behaviour to which he was subjected during the course of his work and less favourable treatment and the change in his rostering was due to issues about which he was concerned and which were raised by him with the management of the defendant … in particular the preparation and storage and sale of food therein and also the manner in which the management and staff of the defendant company failed to adhere to hygiene and other standards”.

15 Of course it has to be emphasised that the proceedings are at a stage where there is not much in the way of evidence backing this up beyond what the plaintiff says himself in the affidavit of verification, but that would not be unusual at this prehearing stage of the proceedings. The defendant rejects these claims and the entitlement of the plaintiff to serve such notice, claims that the contents are...