Millerick v Minister for Finance

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 11 July 2016
• Neutral Citation: [2016] IECA 206
• Court: Court of Appeal (Ireland)
• Docket Number: APPEAL NO. 2015 349
• Date: 11 July 2016

The President.

Peart J.

Irvine J.

BETWEEN

BRIAN MILLERICK

APPELLANT

- AND -

THE MINISTER FOR FINANCE

RESPONDENT

[2016] IECA 206

Irvine J.

APPEAL NO. 2015 349

THE COURT OF APPEAL

Balance of justice – Inordinate delay – Abuse of process – Appellant seeking seeking an order setting aside a High Court order on the grounds that the trial judge misdirected himself and erred in law – Whether the balance of justice favoured the dismissal of the proceedings

Facts: The appellant, Mr Millerick, maintained that he sustained serious injuries to his right leg and left knee as a result of a road traffic accident on 28th March, 2007. Those injuries were sustained, according to the personal injury summons, when an unmarked garda vehicle, a silver Ford Mondeo, swerved in front of his motorcycle causing him to lose control and fall to the ground. Mr Millerick instituted separate proceedings in respect of the same road traffic accident against the respondent, the Minister for Finance, and the Motor Insurers? Bureau of Ireland (MIBI) on 23rd September, 2009, wherein he claimed that he was injured by the negligent driving of the unidentified driver of the silver Ford Mondeo. The grounding affidavit supporting the Minister?s application to dismiss the proceedings was sworn by one Ms Walsh on 4th March, 2015, in which she complained that since 18th January, 2011, the appellant had taken no steps to advance his claim. She maintained that more than eight years had elapsed since the date of the alleged accident and that the delay that had occurred would likely have a prejudicial effect on the respondent?s ability to defend the claim. She also asserted that the balance of justice favoured dismissing the claim in circumstances where the respondent had not contributed to that delay. Finally, Ms Walsh maintained that the proceedings were an abuse of process insofar as Mr Millerick claimed that the offending vehicle was owned by the respondent and was driven by a member of An Garda Siochana, whereas in his claim against the MIBI he asserted that the identity of the driver and the owner of the vehicle were unknown. On 15th June, 2015, the High Court (Binchy J) dismissed Mr Millerick?s proceedings on the grounds of inordinate and inexcusable delay. The appellant appealed to the Court of Appeal seeking an order setting aside Binchy J?s order on the grounds that the trial judge misdirected himself and erred in law in granting such an order. The appellant maintained that the delay ought to have been excused by the trial judge having regard to the judgment which had been obtained against him by the MIBI for approximately ?348,000 in March, 2012; his solicitor had become embroiled in seeking to negotiate a settlement of that claim. The appellant argued, based upon Primor plc v Stokes Kennedy Crowley?[1996] 2 IR 459, that even if his delay was considered inordinate and inexcusable, the balance of justice could not be said to have favoured the dismissal of the proceedings. The appellant submitted that the respondent had not demonstrated the existence of any actual prejudice arising from the delay.

Held by Irvine J that the High Court judge was correct in concluding that the delay on the part of Mr Millerick in advancing his claim against the Minister was inordinate; a claim in respect of a road traffic accident of the nature described is relatively straightforward and is one which, once placed in the hands of a solicitor, ought to be capable of being advanced in relatively short order. Irvine J was also satisfied that the High Court judge was correct when he concluded that the delay was inexcusable; the excuses offered to explain the delay were not supported by any evidence. Based on the submissions made to the Court and the evidence that was before the High Court, Irvine J concluded that the balance of justice favoured the dismissal of the proceedings having regard to Primor plc v Stokes Kennedy Crowley?[1996] 2 IR 459.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of Ms. Justice Irvine delivered on the 11th day of July 2016

1 This is an appeal against the order and judgment of the High Court (Binchy J.) made on 15th June, 2015, and perfected on the following day whereby he dismissed the plaintiff's claim by reason of inordinate and inexcusable delay. On this appeal the plaintiff (?Mr. Millerick?) seeks an order setting aside that order on the grounds that the trial judge misdirected himself and erred in law in granting such an order.

Background

2 The following is a brief summary of the facts and dates relevant to the defendant's (?Minister's?) application to dismiss Mr. Millerick's proceedings as being an abuse of process and for inordinate and inexcusable delay.

3 Mr. Millerick maintains that he sustained serious injuries to his right leg and left knee as a result of a road traffic accident on 28th March, 2007. Those injuries were sustained, according to the personal injury summons, when an unmarked garda vehicle, a silver Ford Mondeo, swerved in front of his motorcycle causing him to lose control and fall to the ground.

4 The following is a chronology of the relevant dates:

28 th January, 2009: Mr. Millerick makes an application to the Personal Injuries Assessment Board indicating that he intends to issue proceedings against the Minister for Finance and also the Motor Insurers' Bureau of Ireland.

29 th January, 2009: Originating letters sent to the Minister and the MIBI.

23 rd September, 2009: Mr. Millerick issues a separate personal injuries summons against the Minister and the MIBI.

2 nd February, 2010: The Minister enters an appearance and serves a notice for particulars.

6 th May, 2010: Replies to particulars.

10 th August, 2010: The Minister seeks further and better particulars.

26 th August, 2010: Defence delivered.

18 th January, 2011: Replies to the Minister's notice for further and better particulars.

4 th March, 2015: The Minister issues motion to dismiss claim for abuse of process and delay.

12 th June, 2015: Replying affidavit of Sinead Farrelly.

15 th June, 2015: Hearing date.

5 As appears from the above chronology, Mr. Millerick instituted separate proceedings in respect of the same road traffic accident against the MIBI on 23rd September, 2009, wherein he claims that he was injured by the negligent driving of an unidentified driver of a silver Ford Mondeo motor vehicle.

6 The grounding affidavit supporting the Minister's application to dismiss the proceedings was sworn by Ms. Gillian Walsh on 4th March, 2015, in which she complained that since 18th January, 2011, the plaintiff had taken no steps to advance his claim. She maintained that more than eight years had elapsed since the date of the alleged accident and that the delay that had occurred would likely have a prejudicial effect on the defendant's ability to defend the claim. She also asserted that the balance of justice favoured dismissing the claim in circumstances where the defendant had not contributed to that delay. Finally, Ms. Walsh maintained that the within proceedings were an abuse of process insofar as Mr. Millerick claims that the offending vehicle was owned by the defendant and was driven by a member of an Garda Siochana, whereas in his claim against the MIBI he asserts that the identity of the driver and the owner of the vehicle are unknown.

7 In her replying affidavit sworn on 12th June, 2015, Ms. Farrelly, Mr. Millerick's solicitor, justified the issue of separate proceedings against the MIBI based upon the defence that had been filed by the Minister in the present claim which denies that the incident was caused by the driving of another vehicle and that if there was such another vehicle it was not an unmarked Garda car. It is to be inferred from her affidavit that should Mr. Millerick fail in the within proceedings that he might then pursue a claim for the same injuries against the MIBI.

8 As to the Minister's complaint that the proceedings ought to be dismissed by reason of inordinate and inexcusable delay, Ms. Farrelly advised that she considered that both actions should be listed to be heard together. Unfortunately, the MIBI had not delivered its defence and this was the reason why the within proceedings had not been advanced even though the pleadings were closed. As to when Mr. Millerick might be in a position to advance his claim, she stated that the solicitors on record for the MIBI had advised that they were waiting on counsel to prepare its defence. It should be noted that during the High Court hearing counsel for Mr. Millerick advised that a motion for judgment in default of defence was about to issue.

9 The only other excuse advanced by Ms. Farrelly for the delay in progressing the claim was that the MIBI had issued separate proceedings against Mr. Millerick in respect of a judgment which it had obtained against him for payments made on his behalf in yet another set of road traffic proceedings in which he was the offending driver. As a result she had been in negotiations with Messrs Mason Hayes and Curran, the solicitors on record for the MIBI, and had overlooked the fact that no defence had been delivered by the MIBI in those proceedings.

10 From the transcript of the hearing before the High Court and what is recorded on the face of the order itself, it would appear that the High Court judge dismissed Mr. Millerick's proceedings on the grounds of inordinate and inexcusable delay. He concluded that if the delay was due to the failure of the MIBI to deliver its defence in the second set of proceedings steps should have been taken ?long ago? to remedy that situation. It was unacceptable that five years after the delivery of a personal injuries summons the plaintiff in those proceedings was only contemplating the issue of a motion for judgment in default of defence.

Submissions...