Moorview Developments Ltd & Ors -v- First Active PLC & Ors, [2008] IEHC 274 (2008)

Docket Number:2003 9018 P
Party Name:Moorview Developments Ltd & Ors, First Active PLC & Ors
Judge:Clarke J.




BERNARD DUFFYDEFENDANTSAND LINKED PROCEEDINGSJUDGMENT of Mr. Justice Clarke delivered on the 31st day of July, 2008

  1. Introduction

    1.1 These related proceedings have been the subject of a significant number of earlier judgments. In those circumstances I do not propose to restate the issues which arise in the proceedings or the course of the proceedings to this point. Suffice it to say that the trial of the action of a number of the related proceedings has now been at hearing for upwards of three months. However, a number of specific issues have now arisen which are the subject of this judgment. I propose to refer to the parties in the same manner as they were referred to in my last judgment in this matter. See Moorview Developments and Ors v. First Active and Ors (Unreported, High Court, Clarke J., 20th May, 2008). I propose referring to the plaintiffs in the proceedings specifically referred to above and all other connected companies as the "Cunningham Group". The defendants in the proceedings referred to above will be respectively referred to as "First Active", "Mr. Jackson" and "Mr. Duffy".

    1.2 The first two issues to which this judgment is directed arise out of applications concerning evidence made on behalf of the Cunningham Group. The first motion concerns an application to file a new and more detailed statement of evidence from a witness, Kieran O'Brien, intended to be led on behalf of the Cunningham Group. The second relates to an application on behalf of the Cunningham Group to have the evidence of a Michael Lynn taken by video link. Both applications were opposed by First Active. In addition counsel for Mr. Jackson adopted the opposition put forward on behalf of First Active. The evidence of Mr. O'Brien and of Mr. Lynn has no relevance to the case as against Mr. Duffy, and on that basis Mr. Duffy was not a party to those contested applications. The remaining issues concern discovery and a proposed amendment. Those issues concerned, so far as the defendants are concerned, First Active and Mr. Duffy but not Mr. Jackson.

    1.3 However, I propose addressing the two issues concerning evidence first. It will be necessary, in due course, to address the arguments raised on both sides in relation to both applications. However, it seems to me that some general observations on both case management and modern developments in the conduct of trials (such as the availability of video link) is appropriate. In that context it is also important to recall that these proceedings are, by agreement between the parties, being conducted as if the case had been admitted to the Commercial Court under the provisions of O. 63A of the Rules of the Superior Courts. In fact these proceedings had commenced, and had advanced to a certain degree, prior to the Commercial Court coming into being and were not, in accordance with the Rules applicable to the Commercial Court, therefore, available for admission into that court. However, as the case is being conducted as if it were a case admitted into the Commercial Court, then it follows that the general considerations that would be applicable to the conduct of litigation in that court are equally applicable to these proceedings. I now turn to the general observations on which I have touched.

  2. Hard Cases

    2.1 It seems to me to be appropriate to start by recalling the old but important adage that "hard cases make bad law". That old adage is a pithy way of reminding all concerned of the risk that, in attempting to do what might appear to be justice in an individual case by "bending" the existing rules applicable to that type of case, a court runs the risk that the court may, in the long run, do more injustice in a wider range of cases by, for example, making the law less certain or more capable of uneven application. In an extreme case the relevant jurisprudence might be changed in a way which might, superficially, lead to what might appear to be a just solution in the case under consideration but which might be a recipe for significant injustice in other cases.

    2.2 That being said, a court should also, in my view, always be mindful to consider whether an apparent injustice created on the facts of an individual case, by the application of the existing jurisprudence, may point to an inadequacy in that jurisprudence which ought properly lead to some refinement of the relevant principles.

    2.3 However, for the purposes of the issues now under consideration I refer to the "hard cases make bad law" adage for the purposes of drawing attention to the fact that an excessive concentration on attempting to do justice in an individual case without reference to the consequences which the position of the court in that case might have for the generality of similar litigation has the potential to lead, in the long run, to more rather than less injustice.

    2.4 Many examples could be given of areas of law where there are sound policy reasons for the adoption of a position (whether by Statute or by the jurisprudence of the courts) which might, when viewed on the facts of some individual cases, appear to create a potential for injustice but which, nonetheless, is not only justified but necessary to achieve a greater degree of justice across the range of litigation. A couple of examples will suffice.

    2.5 It is implicit in any statute of limitations that there is an overriding requirement, for the protection of litigants as a whole, that cases be brought in a timely fashion. Looked at from the narrow perspective of two individual litigants the application of a statute of limitations may appear to create an injustice. One plaintiff may have commenced her litigation two years and 364 days after an event (such as an accident) giving rise to a claim for personal injuries. Another litigant, in almost identical circumstances, might have sought to commence virtually identical proceedings three years and one day after the same event. It could hardly be said that any defendant in those circumstances was, to any material extent, save in very unusual and exceptional circumstances, prejudiced by the delay of two days as and between the two cases. Nonetheless, in the absence of any of the very limited circumstances under which the court has a jurisdiction to ignore a failure to commence proceedings within the limitation period, the first case will proceed to trial and the plaintiff will obtain whatever judgment the merits of the case justify, while the second plaintiff will be entirely excluded from their claim and, indeed, from any redress to which they might be entitled unless, perhaps, the delay could be blamed on advisors and a claim of negligence pursued as against them.

    2.6 From the narrow perspective of the two individuals concerned the situation might appear to be unjust. One can obtain full redress, the other nothing. There was only two days between them which, in the overall context of a three year limitation period might be said to be neither here nor there. However, the overriding policy consideration which requires that there be some clear and unambiguous limit to the time within which certain types of litigation can be commenced is seen, over the range of potential litigation, to be more important in the promotion of justice as a whole than any apparent injustice that might stem from a consideration of the facts of the individual case.

    2.7 Likewise any area of law (such as driving under the influence of alcohol) which is subject to a threshold will inevitably have the potential to appear slightly unjust if one compares two almost identical cases. The person who drives with a blood alcohol level of 79 is entirely innocent of any offence. The person who drives with a level of 81 is guilty of an offence which results in an automatic suspension of his or her driving license. However it is impossible to operate any system of thresholds without there being, inevitably, some persons who are just the right and some persons who are just the wrong side of any threshold imposed. Indeed, even the ameliorating measures sometimes adopted in such circumstances of giving a little leeway does not really change the situation. A policy, for example, of not prosecuting persons who are within two units of the limit would simply mean that the person who measured 83 would be prosecuted while the person who measured 82 would not.

    2.8 I would wish to emphasise that there is, of course, a very significant difference between those areas of law, such as those which I have given as examples, where an absolute and rigid limit or threshold is imposed on the one hand and those, such as the ones with which I am concerned in this judgment, where the court is given a wider discretion to take into account all relevant factors. It would be wholly wrong to attempt to cut down on the legitimate widespread discretion given to the courts in certain areas by creating rules which had rigid force akin to, for example, the statute of limitations or the drink driving limits. Nonetheless it seems to me that both of those areas (and many other examples which could be quoted) have the merit of demonstrating an overall principle. In an attempt to do justice in an individual case a court should not lose sight of the fact that its approach in that individual case and its determination of the principles by reference to which any discretion should be exercised, need to be seen not only in the context of seeking to do justice in that case, but also against the background of the consequences for the whole range of litigation to which the relevant discretion may be applicable.

    2.9 In the context of the application relating to Mr. O'Brien it...

To continue reading