Manning v Benson and Hedges Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IEHC 316
• Court: High Court
• Docket Number: [No. 6279 P/1998,1998 No. 6279 P]
• Date: 30 July 2004

MANNING v. BENSON & HEDGES LTD; GARLAND v. JOHN PLAYER & SONS LTD; McNEVIN v. P J CARROLL & CO. LTD

Between

Mary Manning

Plaintiff

-and-

Benson and Hedges Limited

Defendant

Between

Sarah Garland

Plaintiff

-and-

John Player & Sons Limited

Defendant

Between

Mary McNevin

Plaintiff

-and-

P J Carroll & Company Limited

Defendant

[2004] IEHC 316

[No. 6279 P/1998

[No. 8512P/2000]

[No. 11732P/1998]

The High Court

Synopsis:

- [2004] 3 IR 556; [2005] 1 ILRM 190

Facts: The plaintiffs had issued proceedings seeking damages over the manufacture and making available by the defendants of cigarettes which allegedly had exposed the plaintiffs to the risk of injury by smoking cigarettes when they knew that it was unsafe and dangerous to smoke cigarettes and had failed to warn the plaintiffs of the dangers involved. In two cases the alleged injury was emphysema and in the other it was lung cancer. The defendants had issued a motion seeking to have the plaintiffs' actions dismissed for want of prosecution or alternatively for inordinate and inexcusable delay which had prejudiced the plaintiffs such that the balance of justice required that the claims be dismissed. In each case the plenary summons was issued within three years of the date of diagnosis as pleaded. In addition it was claimed that arising from the defendants' rights under the Constitution to fair procedures and a fair trial the cases should be dismissed. It was also claimed that the defendants had rights to a trial within a reasonable time under Article 6 of European Convention on Human Rights.

Held by Finlay Geoghegan J in dismissing the plaintiffs' claims. There had been inordinate and inexcusable delay by the plaintiffs in proceeding with their cases. There had been no explanation as to why no proceedings had been issued until almost three years after the date of diagnosis relied upon nor why the summons in each case had not been served for approximately eleven months. There had been a scattergun approach in the allegations of wrongful acts and a complete lack of specificity relating to each plaintiff. None of the defendants could be considered to have contributed in any significant way to the relevant lapse of time. The lapse of time between the alleged wrongful acts and the probable hearing date of the claims meant that there was a real and serious risk of an unfair trial if these claims were allowed to continue. Although there had been an agreement by the parties in relation to the collection of lifetime medical records this did not relieve the plaintiff of her obligation to prosecute her claim with reasonable expedition. Virtually nothing was done during the period of two and half years to prosecute the plaintiff's claim. The defendants had at no stage been in default in relation to the case. Only after the issuing of notices seeking the dismissal of the claim did the defendants receive a statement of claim which was in general terms and in copperplate form. The interests of justice required that the plaintiff's claim be dismissed.

Reporter: R.F.

Citations:

STATUTE OF LIMITATIONS (AMDT) ACT 1991

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

O'DOMHNAILL V MERRICK 1984 IR 51

O'BRIEN V KEOGH 1972 IR 144

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3

CONSTITUTION ART 34

CONSTITUTION ART 34.1

CONSTITUTION ART 34.3.1

CONSTITUTION ART 40

TOAL V DUIGNAN & ORS (NO 1) 1991 ILRM 135

TOAL V DUIGNAN (NO 2) 1991 ILRM 140

O'C (J) V DPP 2000 3 IR 478

KELLY V O'LEARY 2001 2 IR 526

O'CONNOR V JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321

1 Ms. Justice Finlay Geoghegan delivered on the 30th day of July, 2004 .

PRELIMINARY

2 This judgment is given in relation to three applications brought by the defendants in each of the above proceedings against the plaintiff named. The applications were heard simultaneously. Each of defendants was separately represented. The plaintiffs were jointly represented. In certain of the proceedings there are additional plaintiffs and these judgments only apply to the applications against the plaintiffs named.

Plaintiffs" claims

3 The primary claim of each plaintiff is a claim for damages for injury allegedly suffered by reason of alleged negligence and breach of duty of the relevant defendant. In two cases the injury alleged is emphysema and in one lung cancer. Each of the claims are similarly pleaded. Each essentially alleges that by reason of alleged wrongful acts of the relevant defendant the plaintiff commenced smoking; became addicted; continued to smoke and by reason of smoking has contracted the relevant disease or illness. Ms. Manning is alleged to have commenced smoking in 1948 and to have been diagnosed with emphysema in 1995. Ms. Garland is stated to have commenced smoking in 1942 or 1945 and to have been diagnosed with emphysema in August 1997. Ms. McNevin is alleged to have commenced smoking in 1968 and to have been diagnosed with lung cancer in November 1995.

Assumption for these applications

4 Defences have not been delivered in any of the claims. The Statute of Limitations has not been raised against the plaintiffs. These applications must be considered upon the basis that the claims as made are not statute barred. In each case the plenary summons was issued within three years of the date of diagnosis as pleaded. It is appropriate that the court should consider each application in the most favourable way to the plaintiff. Accordingly, it is assumed for the purposes of this application that each of the claims made is not statute barred. This appears to require an assumption that the date of diagnosis in respect of each of the plaintiffs is either the date of completion of the tort or torts alleged or the date of knowledge within the meaning of the Statute of Limitations (Amendment) Act, 1991. For reasons which should be apparent later in this judgment the former is probably the more favourable position to the plaintiffs and therefore I have assumed for the purposes of these applications that the tort or torts alleged only became complete and the plaintiffs" respective causes of action against the defendants accrued on the date of diagnosis pleaded. In making this assumption I am not making any finding to that effect.

Defendants" applications

5 Each defendant seeks an order pursuant to the inherent jurisdiction of the court that the plaintiff's claim be dismissed. Whilst the three notices of motion grounding these applications set out in varying terms the grounds upon which the application is brought the grounds pursued by all the defendants may be summarised as follows:-

6 (1) That the plaintiffs" claims be dismissed for want of prosecution on the grounds of inordinate and inexcusable delay on the part of the plaintiffs in the commencement and prosecution of the proceedings which delay has prejudiced the defendants such that the balance of justice requires that the claims be dismissed.

7 (2) That the plaintiffs" claims be dismissed in the interests of justice in defence of the defendants" right under the Constitution including the right to fair procedures and a fair trial.

8 (3) That the plaintiffs" claims be dismissed as it would be contrary to the defendants" rights to a trial within a reasonable time under Article 6 of the European Convention for the Protection of Fundamental Freedoms and Human Rights ("ECHR") to require the defendants to defend themselves against the plaintiffs" claims.

9 Insofar as is necessary I propose considering the applicable law in relation to each of the above grounds.

Applicable Law

Want of Prosecution

10 The law applicable to the claim to dismiss on grounds of want of prosecution is as stated by the Supreme Court in Primor Plc. v. Stokes Kennedy Crowley and Ors. [1996] 2 I.R. 459. As there was some dispute in submissions between the parties as to precisely what was determined by that case and its application to the facts of the present applications it is necessary to set out the principles as determined by the Supreme Court in that case. The judgment of the majority was given by Hamilton C.J. and in his judgment at p. 475 set out the following applicable principles:-

11 (a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

12 (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

13 (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

14 (d) in considering this latter obligation the court is entitled to take into consideration and have regard to:-

15 (i) the implied constitutional principles of basic fairness of procedures,

16 (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

17 (iii) any delay on the part of the defendant – because litigation is a two party operation, the conduct of both parties should be looked at,

18 (iv) whether any delay or conduct of the defendant amounts to acquiescence on part the defendant in the plaintiff's delay,

19 (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to...