Martin v Moy Contractors Ltd

• Jurisdiction: Ireland
• Judge: Lynch, J.
• Judgment Date: 11 February 1999
• Neutral Citation: [1999] IESC 26
• Court: Supreme Court
• Date: 11 February 1999

MARTIN v. MOY CONTRACTORS LTD. & ORS

BETWEEN

GERARD MARTIN

Plaintiff

AND

MOY CONTRACTORS LIMITED, AUGUSTINE TREACY JOSEPH TREACY, SEAN TREACY TREFORM LIMITED, THOMAS GARLAND AND PARTNERS, FRANK HUGHES TRADING AS HUGHES INTERNATIONAL ENGINEERING AND PROJECTS, AND DE BEERS INDUSTRIAL DIAMOND DIVISION (IRELAND) LIMITED

Defendants

[1999] IESC 26

O'Flaherty J.

Murphy, J.

Lynch, J.

Record No. 113 & 187 of 1998

THE SUPREME COURT

Synopsis

Practice and Procedure

Delay; striking out of claim; renewal of plenary summons; accident at work in August 1988; plenary summons issued in July 1991, eleven days before expiry of limitation period; statement of claim delivered over 18 months later; reply to notice for particulars of January 1994 made after almost four years in December 1997; managing partner of first defendant had died in May 1997; whether High Court correct in striking out claim against first defendant; eighth defendant had received a preliminary letter of claim but was not served with the plenary summons; whether High Court correct to refuse to set aside earlier order of the High Court renewing the plenary summons so that it could be served; O.8 rr.1 and 2, Rules of the Superior Courts.

Held: Inordinate and inexcusable delay had prejudiced first defendant; not having had any witnesses to the accident, the eighth defendant had not shown any specific prejudice; High Court enjoys a measure of discretion in both types of matter; both appeals dismissed.

Martin v. Moy Contractors Ltd - Supreme Court: O'Flaherty J., Murphy J., Lynch J. - 11/02/1999

(Nem Diss) —The inordinate delay on the part of the plaintiff in the prosecution of his claim gives rise to a general inference of prejudice by virtue of the diminution of the ability of witnesses to recollect events and in relation to the sixth defendant there was a specific prejudice because the partner responsible for the engineering project in question had died. However, the eight defendant had not established a specific prejudice which would justify the Court in concluding that the way in which the trial judge had exercised his discretion should be interfered with. The Supreme Court so held in dismissing the appeal of the plaintiff and ordering that the claim against the sixth defendant be dismissed and further, dismissing the appeal of the eighth defendant.

Citations:

CELTIC CERAMICS LTD V INDUSTRIAL DEVELOPMENT AUTHORITY & HUNT 1993 ILRM 248

SHEEHAN V AMOND 1982 IR 235

HOGAN V JONES EDMONDS & G & T CRAMPTON LTD 1994 1 ILRM 512

CIVIL LIABILITY ACT 1961 S35

BAULK V IRISH NATIONAL INSURANCE CO LTD 1969 IR 66

MCCOOEY V MIN FOR FINANCE 1971 IR 159

ROCHE V CLAYTON 1998 1 IR 596

O'BRIEN V FAHY UNREP SUPREME 21.3.1997 1997/11/3442

1 JUDGMENT delivered the 11th day of February, 1999 by Lynch, J. [NEM DISS]

2 In this case two appeals came before the Supreme Court and were argued on the same day one after the other. The first appeal No. 113 of 1998 was by the plaintiff against an order of the High Court (Morris P.) made on the 30th of March 1998 whereby the plaintiffs claim against the sixth defendant (hereafter Garlands) was struck out with costs against the plaintiff on foot of a Motion by Garlands dated the 3rd of February 1998 seeking orders dismissing the plaintiffs claim against them for want of prosecution.

3 The second appeal No. 187 of 1998 was by the eighth defendant (hereafter de Beers) against the refusal by the High Court (Shanley J.) by an order made on the 8th of May 1998 on foot of a motion by De Beers of the 15th of January 1998 to set aside an earlier order of the High Court (Laffoy J.) made on the 10th of November 1997 renewing the plenary summons so as to enable the same to be served on de Beers. I shall deal with the two appeals in the same order as mentioned above namely the plaintiffs appeal against the order obtained by Garlands first and thereafter de Beers appeal against the refusal of their application to set aside the renewal of the plenary summons.

The Factual Background in Garlands Case

4 The plaintiff claims that he suffered injuries to his left foot on the 1 lth of August 1988 in an accident which happened in the course of his work. It appears that the plaintiff was employed by the seventh defendant on some form of construction works in premises situate at Shannon County Clare owned by De Beers in respect of which works Garlands were consulting engineers.

5 The plaintiff appears to have consulted his solicitors about April of 1991. They wrote a preliminary letter of claim on the 2nd of July 1991 to Garlands and the other defendants. They issued a plenary summons against the eight defendants on the 30th July 1991 that is to say some eleven days or so before the statute of limitations would have run against the plaintiff's claim. Service of the plenary summons was effected in January 1992 on Garlands" solicitors who had undertaken to accept such service and enter an appearance and they duly entered an appearance on the 21st of January 1992. Nothing happened thereafter for over 18 months whereupon Garlands" solicitors in September 1993 issued a motion to dismiss the plaintiff's action as against them for want of prosecution by reason of the plaintiffs failure to deliver a statement of claim. By order of the 18th of November 1993 an extension of two weeks was granted to the plaintiff to deliver a statement of claim and on the 25th of November 1993 the statement of claim was delivered to Garlands" solicitors.

6 The statement of claim was vague. It did not disclose who was the plaintiff's employer or what were the functions and involvement of the various defendants in connection with the plaintiff and the works. The statement of claim gave particulars of negligence against each defendant. The first seven particulars that is to say subparagraphs (a) to (g) inclusive were identical in relation to each defendant and were as follows:-

7 a "(a) failing to provide a safe place of work.

8 (b) failing to provide a safe system of work.

9 (c) failing to provide proper training.

10 (d) failing to provide proper supervision.

11 (e) failing to provide a sufficient number of competent employees.

12 (f) failing to heed the complaints of previous employees including the plaintiff in relation to provision of an adequate number of employees.

13 (g) failing to comply with the provisions of the Factories Acts 1955and the Safety Act 1989as amended and the regulations made thereunder."

14 As against Garlands the particulars of negligence continued as follows:

15 2 (h) failing to supervise the work.

16 3 (i) failing to ensure that proper excavation work was carried out and to provide a representative on site.

17 4 (j) failing to provide a clerk of works.

18 5 (k) failing to ensure that the work was carried out in a proper manner.

19 6 (l) failing to ensure that pit walls would not slide down into an excavated site.

20 7 (m) the plaintiff reserves the right to adduce further particulars after discovery."

21 Not surprisingly Garlands" solicitors served a notice for particulars on the 17th of January 1994 seeking inter alia information as to the plaintiff's employers and as to the circumstances of the accident. Once again silence descended. Eventually the plaintiff's solicitors wrote to Garlands" solicitors on the 15th September 1997 enclosing a notice of intention to proceed dated the 9th of September 1997 almost four years since their last step in the action namely the delivery of a statement of claim on the 25th of November 1993. On the 22nd of December 1997 the plaintiff's solicitors replied to Garlands" notice for particulars of the 17th of January 1994 namely four years less one month after the Notice for Particulars. It then transpired that Mr. Michael Ledwidge a partner in Garlands had died on the 26th of May 1997 almost nine years after the accident the subject matter of these proceedings and almost six years after the commencement of the proceedings.

22 In paragraphs six and seven of the said replies to the notice for particulars the plaintiff alleged:-

23 2 "(6) The plaintiff claims that (Garlands) failed in its duty of care by inadequate inspections on site and failure to ensure the working environment was safe for the purposes of excavation mining and earthworks.

24 (7) The plaintiff claims (Garlands) owed him a duty of care including statutory duty to ensure adequate inspection and to ensure the system of excavation and earthworks."

25 Garlands" solicitors then issued the motion which gives rise to this appeal in February 1998 seeking:-

26 2 "(1) An order dismissing the plaintiff's claim herein for want of prosecution, or

27 (2) An order dismissing the plaintiff's claim for want of expeditious prosecution and as a consequence whereof (Garlands) has been irrevocably prejudiced in its capacity to defend the plaintiffs claim."

28 This motion was grounded on an affidavit sworn on the 26th of January 1998 by John Coakley another partner in Garlands, in paragraphs 3 and 6 of which he says inter alia:-

29 2 "(3).... In this statement of claim the particulars of negligence against the defendants are in very general terms and there are no specific allegations of negligence against our firm. In order to clarify the plaintiff's case against our firm I say that on the 17th of January 1994 a notice for particulars was sent by our solicitors to the solicitors for the plaintiffs and a reply thereto was not received until receipt of a letter from the plaintiffs solicitors dated the 2nd of December 1997. The partner who oversaw and was responsible for the project in question being intimately involved in same was Mr. Michael Ledwidge who died on the 26th day of May 1997 and I beg to refer to a copy of his Death Certificate upon which marked with the letter A I have endorsed my name prior to the swearing...