Liam Grant v Roche Products (Ireland) Ltd and Others
| Jurisdiction | Ireland |
| Judge | Finnegan P. |
| Judgment Date | 27 May 2005 |
| Neutral Citation | [2005] IEHC 161 |
| Court | High Court |
| Date | 27 May 2005 |
[2005] IEHC 161
THE HIGH COURT
BETWEEN
AND
Practice and procedure - Abuse of process - Application to discontinue or stay proceedings - Tender offer by defendant - Liability denied by defendant - Whether reasonable cause for maintenance of action after tender offer made by defendant - Whether abuse of process for plaintiff to maintain action when defendant tenders money in satisfaction of claim which can be calculated with mathematical certainty - Civil Liability Act 1961, section 48 - Rules of the Superior Courts 1986, O. 22, r. 1.
Facts: the plaintiff alleged that his son committed suicide as a result of depressive side effects caused by taking the acne treatment drug manufactured and marketed by the Defendants. He sought damages therefor under the Civil Liability Act 1961. The first to fifth defendants, without admitting liability, tendered a sum of money in satisfaction of the plaintiff’s claim and applied to have the continued prosecution of the proceedings discontinued, or alternatively, stayed as being an abuse of process, in light of that offer given that, as the proceedings were taken under the Civil Liability Act 1961, the amount which would satisfy the claim could be ascertained with mathematical certainty.
Held by the President of the High Court in refusing the defendants’ application to discontinue or stay the proceedings that as the determination of liability was one of the objects of the proceedings and there was no admission of liability, the plaintiff was not acting in abuse of process. The constitutional right of the plaintiff to litigate took precedence over the consequences for the defendants in terms of the costs of defending the action and the court had no jurisdiction to strike out or stay the proceedings.
Obiter dictum: that the inherent power of the court to strike out proceedings which were an abuse of process should be exercised sparingly.
Reporter: PC
Judgment of Finnegan P. delivered on the 27th day of May 2005
The Plaintiff brings this action pursuant to the Civil Liability Act 1961 Part IV. He is the father of Liam Grant Junior. The Seventh Named Defendant is a Consultant Dermatologist who prescribed a drug Roaccutane to Liam Grant Junior. The First to Fifth Named Defendants are involved in the manufacture and distribution of the drug. The Sixth Named Defendant is the statutory body entrusted with the regulation of the manufacture and distribution of drugs within this jurisdiction. The Statement of Claim pleads that a side effect of the drug is depression, that Liam Grant Junior became depressed and suicidal as a result of taking the drug and on the 15th June 1997 took his own life. It is pleaded that the death was caused by the negligence, breach of duty and breach of statutory duty of the Defendants. Defences were delivered denying liability. By letter dated 13th October 2004 the solicitors for the First, Second, Third, Fourth and Fifth Named Defendants offered to the Plaintiff a sum of money sufficient they say to satisfy the claim. I am not satisfied that the sum offered is indeed sufficient so that it could be said with certainty that the Plaintiff would not recover a greater sum. However as the parties had come to court prepared to argue the issue raised on the Notice of Motion and court time had been set aside for that purpose and as in the particular circumstances of a claim under the Civil Liability Act 1961 Part IV it would be possible for the said Defendants to offer a sum more than which the Plaintiff could not be awarded it was agreed that I should proceed and determine the issue raised on this application. Further I propose treating the said Defendants offer as a tender although not made in the form prescribed by the Rules of the Superior Courts (No. 5) (Offer of Payment in Lieu of Lodgement) 2000 S.I. No. 328 of 2000 for the purposes of dealing with the issue before me. S.I. 328 of 2000 provides a qualified party with the alternative to lodging money in court of making an offer of tender. In practical terms and for present purposes therefore I propose having regard to the situation as if a lodgement had been made.
The relief sought by the First to Fifth Named Defendants on this Notice of Motion is as follows -
(a) An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein, or alternatively, restraining the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the Plaintiff by Solicitors for the First, Second, Third, Fourth and Fifth Named Defendants by letter dated 13 October 2004, the relief sought by the Plaintiff in the proceedings has been offered to him by these Defendants and in those circumstances the continued prosecution of these proceedings would be an abuse of the process of the Court."
If the action proceeds the costs of the same will be substantial indeed. The Plaintiff has obtained an Order for Discovery against the First to Fifth Named Defendants from the Master which is under appeal. On foot of that Order the first to fifth named Defendants will be required to discover between 4 and 5 million documents. As to the nature of the documents many will be highly technical and lengthy. The Plaintiff has appealed the Master's Order and if he succeeds on that appeal the number of documents will be increased to some 9 million. It is estimated that the hearing will take in excess 3 months.
In an Affidavit filed on behalf of the Plaintiff on this application it is deposed as follows -
"4. In the first instance the offer letters are repeatedly stated to be made without prejudice to the issue of the Roche Defendants” liability. My client wishes the issue of liability to be determined. My client believes that the wrongful actions of the Roche Defendants caused or contributed to the tragic death by suicide of his son, Liam. In the circumstances, I believe that my client is entitled to an adjudication of the liability issue and that he cannot be precluded from asserting his right of access to the court by reason only of the offer of a small monetary sum without any acknowledgement that the Roche Defendants were guilty of negligence in the manner claimed in these proceedings."
A second issue raised in that Affidavit is that of special damages. The Plaintiff as special damages claims the expense incurred in investigating and gathering scientific information about Roaccutane. The amount claimed is €696,193. A considerable portion of this sum has already been paid - $219,000, $33,243, $10,500, €21,066.03, €13,865.54 and €139,595.83. There is an issue as to whether some or all these items are properly items of damages or items of costs. However this could be determined either as a preliminary issue or on taxation. It may be that some or all of the items are not recoverable under either heading of damages or costs.
The issue which arises is this. If, without admission of liability, a defendant tenders or lodges in court a sum of money in satisfaction of the Plaintiff's claim that claim being a claim which can be calculated with mathematical certainty is it an abuse of process for the Plaintiff to continue to prosecute the action.
A payment into court is simply an offer to dispose of the claim on terms: A Martin French (a firm) v Kingswood Hill Limited 1962 All ER 251. Where the Defence denies liability the payment in should be without admission of liability and the acceptance of the sum so paid implies no admission about the merits of the cause of action as there has been no adjudication and no estoppel is created. In effect acceptance of money so paid in is nothing more than a compromise.
Order 22 Rule 1 of the Rules of the Superior Courts provides for the payment into court by a defendant of a sum of money in satisfaction of a claim or where several causes of action are joined in one action in satisfaction of one or more of the causes of action. The pleadings in this case are broadly framed in negligence, breach of duty and breach of contract. There is in effect only one cause of action - the statutory cause of action created by the Civil Liability Act 1961 section 48. That section creates a statutory tort of causing death by wrongful act. Rule 1(6) requires the Notice of Payment into Court to be in one of form number four or number five in Appendix C of the Rules of the Superior Courts that is either admitting or denying liability. Rule 6 deals with the effect of a payment into court on costs. The Rule provides that if the amount paid into court exceeds the amount awarded to the Plaintiff the Plaintiff is entitled to the costs of the action up to the time when such payment into court was made and of the issues or issue, if any, upon which he shall have succeeded. In Willcox v...
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