Michael Mansfield v Roadstone Provinces Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 08 April 2022
• Neutral Citation: [2022] IEHC 223
• Court: High Court
• Docket Number: [Record No. 2008/10804P]

Between

Michael Mansfield

Plaintiff

and

Roadstone Provinces Limited

Defendant

[2022] IEHC 223

[Record No. 2008/10804P]

THE HIGH COURT

Personal injury – Inordinate and inexcusable delay – Balance of justice – Defendant seeking to dismiss the proceedings for delay – Whether the balance of justice lay in favour of dismissing the proceedings

Facts: The plaintiff, Mr Mansfield, issued a personal injury summons in December 2008 arising from an accident at work that he claimed took place when he was driving a forklift truck at the premises of the defendant, Roadstone Provinces Ltd, on 6 November 2006. In January 2009 the plaintiff’s solicitor filed a notice for particulars and the defendant replied in March 2009. In April 2009 the defendant’s solicitors filed a defence but did not attend to swearing or filing a verifying affidavit at that time. There were no further pleadings filed until the plaintiff’s solicitors filed a notice of intention to proceed in March 2019. The defendant applied to the High Court to dismiss the proceedings for delay. The defendant contended that the delay was inordinate and inexcusable and pointed to a number of authorities including the decision of Meenan J in J. Heary (Joinery) Ltd v Grogan & Ors. [2021] IEHC 820, where a lesser period of delay of four years between the defendant making discovery in February 2015 and the plaintiff delivering further particulars of negligence in December 2019, was found to be inordinate and inexcusable. In relation to the balance of justice, the defendant’s grounding affidavit referred to the defendant’s solicitor’s belief that there had been inordinate, inexcusable and culpable delay on the part of the plaintiff in prosecuting the proceedings and referred to the thirteen years, as of the date of the swearing of the affidavit, since the date of the accident complained of. The defendant’s solicitor said that the defendant’s facility at which the accident was alleged to have taken place was closed in 2009 and that the location manager there at the time of the accident no longer worked for the defendant. That was the totality of what the defendant had put on affidavit as to the prejudice it would suffer in the event that the proceedings were allowed to continue after such a long period of delay. The defendant sought to expand on the prejudice point during oral submissions by explaining that their former location manager, referred to in the defendant’s solicitor’s grounding affidavit, had been made redundant in 2009. The defendant’s counsel in oral submissions also referred to the period of delay as a prejudice in itself as well as loss of memory on the part of witnesses and referred to the defendant’s intention to call the owner of the quarry where the accident was alleged to have taken place and the defendant’s engineer who furnished a report to give evidence at trial. The defendant’s counsel submitted that the case was not a documents case.

Held by Bolger J that the delay in the case had been both inordinate and inexcusable. Bolger J held that the plaintiff would suffer prejudice if the case was dismissed and he was denied his opportunity to litigate his claim. Bolger J held that the prejudice that the defendant would suffer had not been adequately identified and there was, therefore, very little basis for the court to find that the defendant’s prejudice in having to defend a claim after so many years, outweighed the plaintiff’s prejudice. In all of the circumstances of the case and given the defendant’s approach to the litigation since the plaintiff’s solicitor resurrected his file in March 2019, and the fact that the matter was very close to being ready for trial, Bolger J was satisfied that the balance of justice was in favour of allowing the plaintiff to proceed to trial. Bolger J refused the defendant’s motion to dismiss on grounds of delay.

Bolger J held that, as the defendant had not succeeded in securing the relief it sought and the plaintiff had succeeded in the matter to go to trial, in accordance with s. 169 of the Legal Services Regulation Act 2015, costs should follow the event.

Motion refused.

JUDGMENT of Ms. Justice Bolger delivered on the 8th day of April, 2022

1 This is the defendant's application to dismiss the proceedings for delay. The court must establish:-

• (1) Has there been inordinate delay?

• (2) If so, is that delay excusable?

• (3) If the delay is both inordinate and excusable, does the balance of justice lie in favour of dismissing the proceedings?

Background to the proceedings

2 The plaintiff issued a personal injury summons in December 2008 arising from an accident at work that he claims took place when he was driving a forklift truck at the defendant's premises on 6 November 2006. In January 2009 the plaintiff's solicitor filed a notice for particulars and the defendant replied in March 2009. In April 2009 the defendant's solicitors filed a defence but did not attend to swearing or filing a verifying affidavit at that time.

3 There were no further pleadings filed until the plaintiff's solicitors filed a notice of intention to proceed in March 2019. In the meantime, the defendant had arranged for two medical appointments on 15 April 2009 and 16 October 2009. The plaintiff avers in his replying affidavit that he attended at University Hospital Waterford on each occasion to meet with the defendant's doctor but that the doctor did not turn up. The defendant did not reply to this affidavit and there is nothing in their affidavit to explain why the medical consultations did not take place. The defendant has not taken any further steps to have the plaintiff medically examined.

4 A joint engineering inspection took place on 16 October 2009. The plaintiff sought inspection of the forklift and the defendant's solicitors confirmed that it was not owned by the defendant but furnished the plaintiff's solicitor with the name and address of the owner. It seems that no further steps were taken by the plaintiff's solicitor in relation to that.

5 On 25 March 2019 the plaintiff's solicitor served a notice of intention to proceed. From that point onward there was considerable activity from the plaintiff's solicitor with some, albeit much less, from the defendant's solicitor.

6 The plaintiff's solicitor sent a request for voluntary discovery on 9 April 2019, filed a reply to the defendant's defence on 19 June 2019, and set the matter down for trial on 26 July 2019. The plaintiff's solicitor requested an affidavit of verification for the defence on 27 September 2019. The defendant had not responded to the plaintiff's request for voluntary discovery and the plaintiff's solicitor sent a warning letter on 27 September 2019 and served a notice of trial on 3 October 2019. The plaintiff's solicitor served updated particulars of personal injury on 29 October 2019 and made two further requests for the defendant's affidavit of verification on 30 October 2019 and 15 January 2020. The plaintiff's solicitor issued a motion seeking discovery on 5 November 2019 which came on for hearing before this Court on 13 January 2020 when an order for discovery was made against the defendant on a consent basis. The defendant has not yet complied with that order. In the course of the hearing before this Court the defendant said it was awaiting the outcome of this motion before having to make what it claims would be complex discovery. Arising from the defendant's failure to make discovery, the plaintiff issued a separate motion seeking to strike out the defence for failure to make discovery which has been adjourned pending the outcome of this application.

7 Jim Rea, the defendant's human resources manager, swore a verifying affidavit on 14 February 2020 which was filed on 27 February 2020 and served on the plaintiff's solicitors on 14 April 2020. Mr Rea avers that the assertions, allegations and information contained in the defence which are within his knowledge are true and that he believes that the assertions, allegations and information contained in the defence which are not within his knowledge are true.

8 The plaintiff contends that once the defendant makes discovery, that the matter is ready to be set down for hearing. The defendant disputes that as it has not had the plaintiff medically examined. The defendant does not appear to have made any attempts to do so since the two abortive appointments of 2009.

The defendant's submissions

9 The defendant contends that the delay is inordinate and inexcusable and points to a number of authorities including the recent decision of Meenan J. in J. Heary (Joinery) Limited v. Grogan & Ors. [2021] IEHC 820, where a lesser period of delay of four years between the defendant making discovery in February 2015 and the plaintiff delivering further particulars of negligence in December 2019, was found to be inordinate and inexcusable.

10 In relation to the balance of justice, the defendant's grounding affidavit refers to the defendant's solicitor's belief that there has been inordinate, inexcusable and culpable delay on the part of the plaintiff in prosecuting these proceedings and refers to the thirteen years, as of the date of the swearing of the affidavit, since the date of the accident complained of. The defendant's solicitor says that the defendant's facility at which the accident is alleged to have taken place was closed in 2009 and that the location manager there at the time of the accident no longer works for the defendant. That is the totality of what the defendant has put on affidavit as to the prejudice it will suffer in the event that the proceedings are allowed to continue after such a long...