Murphy v J. Donohoe Ltd (No 2)

• Jurisdiction: Ireland
• Judge: BARRINGTON, J.
• Judgment Date: 13 February 1996
• Neutral Citation: 1996 WJSC-SC 1900
• Court: Supreme Court
• Docket Number: [1989 No. ,1995/159/160
• Date: 13 February 1996

MURPHY v. J DONOHOE LTD

BETWEEN;-

LENA MARIE MURPHY (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND MARGARET MURPHY

PLAINTIFF/RESPONDENT

AND

J. DONOHOE LTD., PROTECTACAR CONTRACT SERVICING LTD., JAMES MURPHY

AND

J. DONOHOE (MOTORS) LTD. FIRST, THIRD, FOURTH AND SIXTH

DEFENDANTS/RESPONDENTS

AND

FIAT AUTO (IRELAND) LTD.

AND

FIAT AUTO SPA SECOND AND FIFTH

DEFENDANTS/APPELLANTS

MURPHY v. J DONOHOE LTD

AND

JAMES JOSEPH MURPHY (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND MARGARET MURPHY

PLAINTIFF/RESPONDENT

AND

J. DONOHOE LTD., PROTECTACAR CONTRACTS SERVICING LTD., JAMES MURPHY,

AND

J. DONOHOE (MOTORS) FIRST, THIRD, FOURTH AND SIXTH

DEFENDANTS/RESPONDENTS

AND

FIAT AUTO (IRELAND) LTD.,

AND

FIAT AUTO SPA SECOND AND FIFTH

DEFENDANTS/APPELLANTS

1996 WJSC-SC 1900

Hamilton, C.J.

O'Flaherty, J.

Barrington, J.

1995/159/160

THE SUPREME COURT

Synopsis:

PRACTICE

Documents

Discovery - Sufficiency - Party - Obligations - Discharge -Failure - Remedy - Principles applicable - Defence struck out -Rules of court not to be employed to discipline litigant - Rules of the Superior Courts, 1986, order 31, r. 21 - (159,160/95 - Supreme Court - 13/2/96) - [1996] 1 I.R. 136 - [1996] 1 ILRM 481

|Murphy v. J. Donohoe Ltd.|

Citations:

RSC O.16

RSC O.31 r21

MERCANTILE CREDIT CO V HEELAN UNREP SUPREME 14.2.95 1995/4/1150

MERCANTILE CREDIT CO V HEELAN 1994 2 IR 105

1 BARRINGTON, J. delivered the 13th day of February 1996 . [nem Diss]

2 These are appeals brought by the second and fifth named Defendants/Appellants against Orders of Johnson J. made herein on the 9th day of March 1995 purporting to strike out certain defences of the second and fifth named defendants for alleged failure to comply with an Order of Discovery.

3 The Action is one of negligence and the accident alleged is comparatively simple. It is alleged that the infant plaintiffs were in a fiat motor car on the 23rd June 1988 when the car burst into flames and caused the infant plaintiffs very serious injuries.

4 The first defendant is a limited company engaged in the motor trade and having a registered office at Enniscorthy in the County of Wexford. The sixth defendant is a wholly owned subsidiary of the first defendant. The second defendant is a limited liability company which imports and distributes fiat cars in Ireland. The third defendant is a limited liability company providing special insurance cover on mechanical parts for motor cars. The fourth named defendant was the owner of the car in question and is the father of the infant Plaintiffs. The fifth defendant is a manufacturer of fiat motor cars with an address at Turin in Italy.

5 The first defendant issued a Notice dated the 9th May 1990 claiming contribution and indemnity from the second, third and fourth named defendants. The fourth named defendant issued a Notice dated the 11th day of June 1990 claiming contribution and indemnity from the first, second and third named defendants. The third named defendant issued a Notice dated the 4th July 1990 claiming contribution and indemnity from the first, second and fourth named defendants. On the 6th day of November 1990, the second named defendant delivered a Notice claiming contribution and indemnity from the first, third and fourth named defendants. The first and sixth named defendants served a Notice dated the 1st November 1994 claiming contribution and indemnity from the second, third, fourth and fifth named defendants. The fourth named defendant served notice dated the 9th March 1995 claiming contribution and indemnity from the fifth and sixth defendants.

6 Despite the procedural complexities which these various Notices were bound to give rise to, none of the parties applied to the Court for directions pursuant to Order 16 of the Rules of the Superior Courts.

7 On the 22nd March 1991 the plaintiff applied for and obtained an Order from the Master that the second named defendant (Fiat Auto (Ireland) Ltd.) do make discovery on oath of the plans and documents therein referred to.

8 On the 8th March 1994 the fourth named defendant obtained an Order that the:-

"Second and fifth named defendants respectively do within eight weeks from the date hereof make discovery on oath of the documents which are and have been in their respective possession or power of complaints received by the second and fifth named defendants in relation to fires which have occurred in the fiat model of car mira fiori between the 1st January 1979 and 24rd June 1988 which have been reported to the second named defendant and its parent company worldwide".

9 On the 10th day of May, 1994 Johnson J. after hearing Counsel for the fourth, second and fifth defendants, made an Order that "the fifth defendant do make further and better discovery of the matters set forth in the Order herein 8th March 1994". The fourth named defendant, being dissatisfied with the discovery made on behalf of the second and fifth defendants, applied to Mr. Justice Johnson on the 27th July 1994 to strike out the defences of the second and fifth named defendants.

10 On that occasion Mr. Justice Johnson was informed by Counsel that the discovery issues in the two cases, of Lena Marie Murphy (A Minor) and James Joseph Murphy (A Minor), were identical and that it did not matter in which case he dealt with the discovery issue. On this basis the learned Judge dealt with the discovery issue in the case of Lena Marie Murphy (A Minor).

11 Mr. Reidy, who appeared for the infant plaintiffs, informed the learned Judge that he too had a motion to strike out the defences of the second and fifth named defendants but that his motion would turn on the result of the fourth named defendants motion. Mr. McGovern, who appeared for the third named defendant, said that he wished to support the application of the plaintiff and the fourth named defendant. Mr. Kidney said he appeared for the first named and for the last named defendants and that he was a Notice Party.

12 Mr. Nugent (for the fourth defendant) having alleged that an Affidavit filed on behalf of the second and fifth named defendants contained matter which was untrue, Miss Finlay who appeared for the second and fifth defendants complained that her deponents had not been cross-examined, and by consent the learned Judge adjourned the Motion to the 11th October to permit the cross-examination of all the deponents.

13 At the resumed hearing on the 11th October 1994 the principal motion before the Court was the fourth named defendants motion to strike out the defence of the second and fifth named defendants for failure to make proper discovery. The plaintiff also had a similar motion before the Court. Mr. Kidney, on behalf of the first and sixth defendants, also had a motion to strike out the defence of the second and fifth named defendants for failure to make proper discovery. He however found himself in the position that he had...