Mulligan v Singh

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Robert Eagar
Judgment Date19 Dec 2019
Neutral Citation[2019] IEHC 880
Docket Number[RECORD NO. 2012/11791P]

[2019] IEHC 880

THE HIGH COURT

Robert Eagar

[RECORD NO. 2012/11791P]

BETWEEN
SEAN DES MULLIGAN
PLAINTIFF
AND
SURINDER SINGH
DEFENDANT

Want of prosecution – Inordinate and inexcusable delay – Injury – Defendant seeking an order dismissing the plaintiff’s claim for want of prosecution – Whether the plaintiff was guilty of inordinate and inexcusable delay

Facts: The defendant, Mr Singh, applied to the High Court by notice of motion dated 26th November 2018 seeking: 1) an order pursuant to the provisions of Order 36, rule 12 dismissing the claim of the plaintiff, Mr Mulligan, for want of prosecution by reason of his failure to serve a valid notice of trial; 2) further or in the alternative, an order pursuant to the provisions of Order 122, rule 11 dismissing the plaintiff’s claim for want of prosecution where there had been no proceedings for two years; 3) further or in the alternative, an order pursuant to the court’s inherent jurisdiction to dismiss the plaintiff’s claim for want of prosecution on the grounds of the plaintiff’s inordinate and inexcusable delay in the prosecution of the proceedings; 4) such further or other orders as the court deemed fit. The proceedings arose out of an accident which occurred on the 2nd December 2009 on a public highway near Calmont Road, Ballymount, Dublin whereby the defendant drove into or collided with the rear of the plaintiff’s vehicle causing him injury. Counsel for the defendant stated that there was in or about a nine year delay up to that point when this motion was issued. He stated that it was quite clear in a case of this nature that the delay was inordinate and inexcusable. In terms of the balance of justice, he submitted that it was not addressed in the replying affidavit of the plaintiff. He submitted that the court should dismiss the proceedings for failure to prosecute the case speedily.

Held by Eagar J that the court, having concluded that the delay was inordinate and that no reasonable excuse had been proffered by the plaintiff for that inordinate delay, must conclude that the balance of justice favoured the dismissal of this action. The court came to this conclusion on grounds which arose from a delay in replying to particulars, furnishing discovery materials, the indulgent changing of solicitors and the lapse of time from the cause of action to the motion before the court in what was blatantly a straightforward case. Additionally, consideration of the plaintiff’s failure to bring motions where he was entitled to do so was brought into account.

Eagar J held that those factors would undoubtedly cause the defendant to suffer prejudice which hindered the prospect of a fair trial. Eagar J held that the court must strike out the proceedings by virtue of its inherent jurisdiction for want of prosecution and by reason that the plaintiff was guilty of inordinate and inexcusable delay.

Proceedings struck out.

JUDGMENT of Mr. Justice Robert Eagar delivered on the 19th day of December, 2019
1

This is a judgment in respect of an application by notice of motion dated 26th November 2018 seeking:

1) An order pursuant to the provisions of Order 36, rule 12 dismissing the plaintiff's claim for want of prosecution by reason of his failure to serve a valid Notice of Trial;

2) Further or in the alternative, an Order pursuant to the provisions of Order 122, rule 11 dismissing the plaintiff's claim for want of prosecution where there have been no proceedings for two years;

3) Further or in the alternative, an Order pursuant to the Court's inherent jurisdiction to dismiss the plaintiff's claim for want of prosecution on the grounds that the plaintiff's inordinate and inexcusable delay in prosecution the within proceedings;

4) Such further or other orders as this Honourable court deems fit.

Facts
2

The proceedings before the court arise out of an accident which occurred on the 2nd December 2009 on a public highway near Calmont Road, Ballymount, Dublin whereby the defendant drove into or collided with the rear of the plaintiff's vehicle causing him injury. The plaintiff attended James Connolly Hospital suffering from panic attacks which caused him difficulty breathing. At James Connolly Hospital, the plaintiff had X-rays done and was subsequently discharged. Later, the plaintiff attended his General Practitioner and complained of a number of issues including headaches, several aches and pains in his shoulders and a chip in his upper right tooth.

Grounding Affidavit
3

The application before the court is grounded on the affidavit of F Gerard M Gannon, solicitor in the firm Claffey Gannon & Co., Solicitors who appear on record for the defendant.

4

The plaintiff applied to the Personal Injury Assessment Board ( hereinafter PIAB) in respect of the facts outlined above on the 28th November 2011. PIAB issued an authorisation in respect of commencing proceedings pursuant to Section 14 of the Personal Injuries Assessment Board Acts 2003 and 2007 on the 13th June 2012. The plaintiff subsequently issued a personal injury summons on the 21st November 2012, some days before the expiration date pursuant to the Statute of Limitations 1957 (as amended). An appearance was entered to the proceedings on the 8th January 2013. On the 4th July 2013, a Notice of Change of Solicitor was issued which stated that the firm Blasco Quinn now act for the plaintiff as opposed to Donal P Quinn &. Co. On the 26th March 2013, Notice for Particulars was issued and initial replies delivered on 30th May 2014. The court notes that this is over fourteen months later. It would then appear that the replies were not satisfactory to the defendant. Therefore, a further Notice was sent by way of Rejoinder dated the 20th June 2014. The Notice was not replied to and the solicitors acting for the plaintiff appear to accept that this by letter dated 11th April in which it is stated “it is likely a further Affidavit will be served in relation to some amended Replies and we would be grateful if you would please bear with us a short time longer in that regard”. However, despite numerous attempts, the plaintiff failed to deliver a verifying affidavit regarding his original replies to particulars which were delivered in May 2014. A motion was issued and was returnable for the 1st February 2016 seeking an order directing the plaintiff to deliver the verifying affidavit. The motion was struck out on 14th March 2016 with an order for costs in favour of the defendant. Mr Gannon says that nothing was done by the plaintiff to progress the case.

5

On the 11th August 2017, the plaintiff again changed solicitors to the firm Quigley, Grant and Kyle. At that stage, it had been over three years since the plaintiff had replied to the original Notice for Particulars. Mr Gannon again says that nothing had been done to prosecute the plaintiff's claim.

6

On the 12th October 2017, an affidavit of verification had been sworn and amended replies to the original notice for particulars was delivered.

7

The plaintiff and defendant then entered in to correspondence in relation to the delay in the plaintiffs claim and the manner in which it had been dealt with by letters dated from 12th October 2017 to 31st August 2018.

8

Keith Kyle, solicitor, for the plaintiff, states in his replying affidavit that the proceedings arise as a result of a road traffic accident whereby the defendant's vehicle was so negligently driven, managed and controlled that it collided with the rear of the plaintiff's vehicle. The matter involves a relatively simple accident. Gardai were called to the scene of the accident following same and there are independent witnesses available regarding the accident.

9

Mr Kyle agrees that there has been some delay regarding the proceedings. However, asserts that there is neither inordinate nor inexcusable delay and is not solely on the part of the plaintiff.

10

On the 21st March 2013, the plaintiffs solicitors wrote to the defendant to file his defence and consented to the late delivery of the defence. However, no defence has been delivered to date.

11

Mr Kyle asserts that on the 26th March 2013, the defendant served a notice for particulars which were responded to on the 3rd April 2013. However, not to the satisfaction of the defendant.

12

Mr Kyle said that no issue was raised by the plaintiff in respect of a notice which also included a request for discovery despite the fact that no request for voluntary discovery was sent and the notice included such request when it ought not to have done so.

13

He says that there was correspondence back and forth between the parties regarding the particulars, for example, the parties agreed to limit the defendant's request for voluntary discovery, contained in the notice for particulars to a period of six years and not nine years.

14

Furthermore, the plaintiff's solicitor at the time moved from one firm of solicitors to another and then back again necessitating two Notice of Change of Solicitors which caused some minor delay. He refers to letters dated 3rd April 2013, 11th April 2013, 17th July 2013 (two letters), 24th July 2013, 1st August 2013, 30th May 2014.

15

Mr Kyle suggests that no prejudice is caused to the defendant by a delay of the plaintiff to get medically examined by the defendant's expert. The delay was due to the death of the plaintiff's brother. The plaintiff was medically examined by the defendant's expert on the 12th May 2015.

16

Mr Kyle states that a motion was not brought in regard to the replies that the defendant was unhappy with. He says this is particularly significant given that there was a disagreement between the parties at the time as to whether an affidavit of verification was required to verify the contents of the plaintiff's replies. A motion was subsequently brought by the defendant seeking to compel delivery of such a document but no issue was made in respect of the adequacy or otherwise of...

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