Mannion v Brennan

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 01 June 2016
• Neutral Citation: [2016] IECA 163
• Date: 01 June 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2014 232

Irvine J.

Mahon

Edwards J.

Between

Dolores Mannion

Plaintiff

- and -

Padraig Brennan and Padraig Colum Ferry, practising under the style and title of Ferrys,

and

the Legal Aid Board

Defendants

[2016] IECA 163

Mahon J.

Appeal No.: 2014 232

[Article 64 Transfer]

THE COURT OF APPEAL

Negligence ? Inordinate delay ? Breach of contract ? Plaintiff seeking declaration that in failing to assign an independent solicitor to process her application the defendant was acting contrary to the principles of constitutional justice ? Whether the balance of justice favoured the continuance of the proceedings

Facts: The plaintiff, Ms Mannion, purchased an apartment in Tralee, Co. Kerry in 1989. Subsequently, the plaintiff maintained that serious problems were identified in relation to the property and to its management company, and in August 1994 she instructed the first and second defendants, Mr Brennan and Mr Ferry, to represent her in proceedings against the vendor of the apartment and the solicitors engaged by her in relation to its purchase. In July 1998 the Circuit Court in Tralee awarded the plaintiff damages of IR£8,750 as against the vendor, but the case against her solicitor was dismissed. On the 1st March 2001 the plaintiff instituted proceedings in the High Court against the first and second defendants arising from their representation of her in the Circuit Court proceedings, and against the third defendant, the Legal Aid Board, arising from its involvement with her in relation to the said proceedings. The plaintiff claimed damages for negligence of personal injuries in breach of contract and breach of duty. In 2005 she applied to the Legal Aid Board for legally aided representation in relation to her action against the Legal Aid Board. She objected to the decision of the Legal Aid Board to appoint one of its own solicitors to deal with her application for legal aid assistance. In this respect, she was granted leave to seek judicial review by Peart J in December 2006. She sought a declaration that in failing to assign an independent solicitor to process her application for free legal services, rather than a solicitor employed by the Legal Aid Board, the Legal Aid Board was acting contrary to the principles of constitutional justice and fair procedures, contrary to the provisions of the Legal Aid Act 1995, and contrary to the plaintiff?s constitutional rights and her rights pursuant to Article 13 and 14 of the ECHR, and was acting contrary to its statutory duty. The High Court (McGovern J) dismissed the judicial review proceedings on 7th December 2007. The plaintiff appealed against that judgment and that appeal was dismissed by the Supreme Court on 26th February 2010. The High Court, on 22nd November 2010 (Hanna J) and 1st December 2010 (Kearns P), dismissed her action as against the third defendant by reason of her inordinate and inexcusable delay. The plaintiff appealed to the Court of Appeal against those orders.

Held by Mahon J that the responsibility for much of the delay in the prosecution of the proceedings prior to mid-2004 rested with the Legal Aid Board and that such delay as may have been attributed to the plaintiff over that period was not inordinate. Mahon J held that during the period of March 2005 to February 2010 the greater responsibility for the delay rested with the plaintiff. Mahon J held that the plaintiff was under a duty to prosecute her proceedings with due diligence at all times, but certainly during the period between 2005 and 2010. Mahon J was satisfied that the second period was both inordinate and inexcusable. Mahon J held that the delay in the period between March 2010 and December 2010 was also inordinate and inexcusable. However, Mahon J noted that it was a relatively short period in the overall life of the proceedings and did not provide in itself a basis for the dismissal of the proceedings for want of prosecution. Applying Primor v Stokes Kennedy Crowley?[1996] 2 IR 459, Mahon J held that the balance of justice marginally favoured the continuance of the proceedings notwithstanding that there had been inordinate and inexcusable delay on the plaintiff?s behalf.

Mahon J held that he would allow the appeal, but on the basis that a suitable undertaking would be given to the Court by or on behalf of the plaintiff that the proceedings would be processed with considerable haste.

Appeal allowed.

Judgment delivered on 1st day of June 2016 by Mr. Justice Mahon

1 This is the plaintiff's (Ms. Mannion) appeal against Orders of the High Court made on 22nd November 2010 (Hanna J) and 1st December 2010 (Kearns P.) dismissing her action as against the third named defendants (the Legal Aid Board), by reason of her inordinate and inexcusable delay. Similar orders were also made in favour of the first and second named defendants, but this appeal proceeds only in relation to the orders made in favour of the Legal Aid Board.

2 The order of Hanna J. provided for a stay on his order dismissing the proceedings ?to 1st December 2010 and the trial judge assigned to the hearing of the action or further order of the Court?. In due course the matter came before Kearns P. on 1st December 2010, whereupon, on being informed by the plaintiff that she was not in a position to proceed with the hearing of the action on that date, he made an order dismissing the proceedings in accordance with the order of Hanna J. The plaintiff was also ordered to pay the defendants' costs, including all or any reserved costs.

3 It is acknowledged that the purpose intention and practical effect of Hanna J.'s order of 22nd November 2010 was to provide a final opportunity to the plaintiff to proceed with the hearing of her case on 1st December 2010, and failing doing so, the proceedings would stand dismissed for want of prosecution, as in fact occurred on that date. The plaintiff confirmed that she was not in a position to proceed with the hearing of the action on 1st December 2010.

The background facts

4 These proceedings were aptly described by Hardiman J. in his judgment of 26th February 2010 in related judicial review proceedings as having ?a long and tortuous history?.

5 The plaintiff purchased an apartment in Tralee, Co. Kerry in 1989. Subsequently, the plaintiff maintains that serious problems were identified in relation to the property and to its management company, and she instructed the first and second named defendants to represent her in proceedings against the vendor of the apartment and the solicitors engaged by her in relation to its purchase in August 1994. Those proceedings came on for hearing in the Circuit Court in Tralee in July 1998. The plaintiff was awarded damages of IR£8,750 as against the vendor, but the case against her solicitor was dismissed. These orders were appealed to the High Court, but that appeal was withdrawn by the plaintiff by letter dated 6th October 1999.

6 The plaintiff was unhappy with the outcome of Circuit Court proceedings, and on the 1st March 2001 she instituted proceedings in the High Court by way of Plenary Summons as against the first and second named defendants arising from their representation of her in the Circuit Court proceedings, and as against the third named defendant, the Legal Aid Board, arising from its involvement with her in relation to the said proceedings. In the prayer of her Statement of Claim, the plaintiff claims as against all defendants, damages for negligence of personal injuries in breach of contract and breach of duty.

7 While her proceedings as against the Legal Aid Board relate to its representation of the plaintiff in the Circuit Court proceedings, in 2005, she applied to the Legal Aid Board for legally aided representation in relation to her action against the Legal Aid Board.

8 Because the plaintiff had instituted proceedings against the Legal Aid Board, she objected to the decision of the Legal Aid Board to appoint one of its own solicitors to deal with her application for legal aid assistance. In this respect, the appellant was granted leave to seek judicial review by Peart J. on 23rd December 2006. Inter alia, the relief she sought in these proceedings was a declaration that in failing to assign an independent solicitor to process her application for free legal services, rather than a solicitor employed by the Legal Aid Board, the Legal Aid Board was acting contrary to the principles of constitutional justice and fair procedures, contrary to the provisions of the Legal Aid Act 1995, and contrary to the plaintiff's constitutional rights and her rights pursuant to Article 13 and 14 of the European Convention on Human Rights, and was acting contrary to its statutory duty.

9 The judicial review proceedings duly came on for hearing in the High Court before McGovern J. and were dismissed by him on 7th December 2007. The plaintiff appealed against the judgment of McGovern J., and that appeal was dismissed by the Supreme Court on 26th February 2010.

The grounds of appeal in this court

10 The plaintiff's grounds of appeal as per the amended notice of appeal dated 10th December 2010 are:-

(i) That the trial judge erred in law and/or in fact by prematurely dismissing the above entitled case before 1st December 2010, that being the date allocated by the High Court for its hearing.

(ii) That the trial judge erred in law and/or in fact by failing to take proper account of the circumstances which caused the delay in the processing of the applicant's case in the above entitled matter. The respondents had ample time to put their case; (the plaintiff) had little time to offer a defence.

(iii) That the statement of claim in the above entitled matter was not submitted to the High Court for the hearing of the motion for dismissal. Many relevant ?books of pleadings? documents were absent.

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