McGrath v Irish Ispat Ltd ((in Liquidation))

CourtSupreme Court
JudgeDenham J.
Judgment Date10 July 2006
Neutral Citation[2006] IESC 43
Docket Number[S.C. No. 339 of 1996]
Date10 July 2006

[2006] IESC 43


Denham J.

Kearns J.

Macken J.

[S.C. No. 339 of 1996]
Michael McGrath


Irish Ispat Limited (In Voluntary Liquidation) Formerly known as Irish Steel Limited

RSC O.58 r8





PRICE & LOWE v UK ECHR 29.7.2003 APPLICATION NO 43185/98 & 43186/98



HAY v O'GRADY 1992 1 IR 210


Practice and procedure - Dismissal of proceedings - Motion to admit further evidence - Fresh evidence - Developing European jurisprudence on reasonable time - Whether plaintiff's claim should be dismissed for want of prosecution

Facts: There were two motions before the court. Firstly, the plaintiff's motion to admit further evidence pursuant to O. 58, r. 8 of the Rules of the Superior Courts and secondly, the defendant's motion to dismiss the appeal for want of prosecution.

Held by the Supreme Court (Denham, Kearns and Macken JJ) in dismissing the plaintiff's appeal for want of prosecution that the lengthy delay since the motion was first before the court was sufficient to ground a decision dismissing the appeal. The delay was not excusable and it was 17 years since the event in issue which prima facie raised issues of fairness of procedures.

Reporter: R.W.


Judgment delivered on the 10th day of July by Denham J.


1. Two motions were before the court. On behalf of Michael McGrath, the plaintiff/appellant, hereinafter referred to as the plaintiff, there was a motion to admit further evidence pursuant to O.58, r.8 of the Rules of the Superior Courts, 1986. On behalf of Irish Ispat Limited (In voluntary liquidation), formerly known as Irish Steel Limited, the defendant/respondent, hereinafter referred to as the defendant, there was a motion to dismiss the appeal for want of prosecution. I shall consider this latter motion first, but in that analysis the plaintiff's motion is also relevant. Thereafter I shall address the motion of the plaintiff for liberty to adduce further evidence.


2. The plaintiff was involved in an accident on 29th July, 1989. He brought a personal injuries action against the defendant. A civil bill was issued on 4th September, 1991 and it was transferred to the High Court on 25th April, 1993. Notice of Trial was served on 13th January, 1994. On 14th October 1996 the High Court dismissed the claim of the plaintiff, together with costs against the plaintiff in the event of an appeal being lodged. That order was perfected on 21st October, 1996.


3. Thus the initial time sequence is that the appeal of the plaintiff is against a judgment of the High Court of 14th October, 1996 (McCracken J.) dismissing the plaintiff's claim, which arose out of an industrial accident on 29th July, 1989. The circumstances were found to be as follows. On the day of the accident the plaintiff was holding steady a metal rope. The rope had been pulled over a pulley which was about sixty feet off the ground. Sixty feet of steel rope was hanging from each side of the pulley. The learned trial judge stated:

"There was at the time this work was being carried out a pulley with two equal lengths of wire, one falling down on each side so that they were equal in weight. Therefore they should have been in equilibrium and it is accepted really that they could not move unless there was some outside influence to make them move."


The learned trial judge referred to those lengths of rope as "Leg A" and "Leg B". The learned trial judge drew some inferences of a technical nature from the evidence given at the trial. On behalf of the plaintiff it was submitted that these inferences were incorrect and that the conclusion they led to is an injustice to the plaintiff.


It was submitted that the essence of the High Court judgment was:

"The plaintiff's case is effectively that the pressure must come on its loose end, that is the end Mr. Barry was working, jerked up in the air and as he was holding he jerked up in the air with it but I can find no evidence that that could have happened. As I have said nobody has given any evidence that anybody was holding the other end of the wire and therefore that anybody could have put pressure on it and pulled it."


Counsel submitted that on an appeal it would be submitted that the learned trial judge drew an inference that the plaintiff was holding the rope at Leg B. It was submitted on behalf of the plaintiff that that inference was incorrect, that the plaintiff was holding Leg A. However, the appeal is not now before the court. What is before the court are the two motions mentioned initially in this judgment.

4. Notice of Appeal

In December 1996 the plaintiff sought leave to extend the time within which to file an appeal to this Court. This was granted and a notice of appeal was filed on the 17th December, 1996. Books of appeal were lodged by a former solicitor for the plaintiff in December, 1996 but without the transcript and they were returned. Nothing further was lodged.

5. Motion to dismiss for want of prosecution.

i 5.(i) The defendant seeks an order dismissing the appeal for want of prosecution. The first motion to strike out the appeal for want of prosecution was issued on the 23rd April, 1999. This first motion was struck out on consent. Shortly before the hearing of that motion a notice of change of solicitor was served. It was agreed between the parties that the motion would be struck out and the costs would be reserved.


ii 5. (ii) The second motion seeking to dismiss the plaintiff's appeal for want of prosecution was issued on the 25th February, 2003 and it was listed before this Court on 7th March, 2003. An agreement was reached between the parties whereby the plaintiff undertook to lodge all documents necessary for the prosecution of his appeal not later than 31st July, 2003. Upon such undertaking the defendant consented to adjourn the matter generally with liberty to re-enter. The documentation was not lodged in accordance with the undertaking.


This motion of 2003 is now once again before the Court.

6. Law

The Court has a duty to protect the reasonable expedition of litigation and has a duty to convey to litigants and their lawyers the necessity to bring cases to hearing with due expedition. This is well settled law: see Sweeney v. Horans (Tralee) Ltd. [1987] I.L.R.M. 240 at p. 243. The legal principles were summarised by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at p. 475 – 476:


(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;


(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;


(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;


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


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


(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,


(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,


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


(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 be attached to such conduct depending upon all the circumstances of the particular case,


(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,


(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.

7. Duty of the court

While there is a developing jurisprudence on the issue of delay in litigation it is grounded on well established Irish principles. Thus in O'Domhnaill v. Merrick [1984] I.R. 151 Henchy J. stated:

"While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case proceed to trial."


Together with our constitutional jurisprudence there is a developing European jurisprudence. Thus in Kobler v. Austria ( Case C-224/01) the European Court of Justice pointed out that a State of the European Union is liable for damages to individuals for breaches of the Treaty, irrespective of whether the breach which gave rise to the damages was by the legislature, executive or...

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