Neiser v Leinster Senior College Ltd

JudgeMs. Justice Siobhán Phelan
Judgment Date29 June 2023
Neutral Citation[2023] IEHC 374
CourtHigh Court
Docket Number[Record No. 2012/4689P]
Stephanie Neiser
Leinster Senior College Limited


Idemudia Akpekpe (Joined by Order)
Third Party

[2023] IEHC 374

[Record No. 2012/4689P]


RULING of Ms. Justice Siobhán Phelan delivered on the 29 th of June, 2023


. This matter came before me as an application to dismiss for want of prosecution pursuant to Order 122, rule 11 of the Rules of the Superior Courts, 1986 and/or inordinate and/or inexcusable delay pursuant to the Court's inherent jurisdiction. A review of the papers and the chronology provided on behalf of the Plaintiff demonstrates that when the motion issued in August, 2020, it had not been more than two years since the last proceeding had in the case. The application was pursued in submissions before me as an application in reliance on the Court's inherent jurisdiction rather than pursuant to O.122, r.11 which requires no step in proceedings for a two year period prior to the making of the application.


. These proceedings were commenced by way of Personal Injuries Summons issuing on the 11 th of May, 2012 on foot of a PIAB authorisation issuing in July, 2020 arising from an incident which occurred on the 12 th of May, 2010. It is alleged that the Plaintiff, then a student, was forcibly pushed by another student (the joined third party) while using the stairs at the Defendant school. In the incident she fell to the bottom of the stairs sustaining a fracture to her right ankle and requiring medical intervention.


. A full chronology (see Appendix A hereto) has been provided on behalf of the Plaintiff from which it is clear that between June, 2012 and July, 2014, proceedings progressed by, inter alia, the delivery of a full defence attributing liability to a third party, an application to join a third party who was a fellow student of the Plaintiff's at material times, the raising and response to particulars and an application for discovery resulting in an order for discovery being made in July, 2014 on application of the Defendant.


. Thereafter, the Chronology reveals that the proceedings became somewhat derailed with an application to strike out for the Plaintiff's failure to make discovery followed closely in time by a Notice of Change of Solicitor at a time when the Plaintiff said her previous solicitor was in professional difficulties in dealing with the file. Following the change in solicitor which took place by arrangement between the Plaintiff's original solicitor and a connected solicitor rather than through the Plaintiff electing to take the file elsewhere, the Plaintiff's discovery was completed in February, 2017.


. At this point the Plaintiff moved to her current solicitor who pursued discovery on her behalf during 2017, ultimately obtaining an order for discovery on the 18 th of December, 2017, but discovery was not made by the Defendant until June, 2019. Accordingly, while there was delay necessitating the service of a Notice of Intention to Proceed in March, 2019, this delay occurred at a time when discovery was outstanding from the Defendant.


. Following service of the Notice of Intention to Proceed, additional particulars of injury were delivered in June, 2019. A schedule of witnesses was provided and reports were disclosed in January, 2020 by both Plaintiff and Defendant. A hearing date was assigned for the 4 th of February, 2020 but the hearing was adjourned on application on behalf of the Defendant due to late delivery of reports from the Plaintiff including a psychiatric report, a vocational assessor's report and an actuarial report which enlarged the Plaintiff's claim. A second hearing date was assigned for the 12 th of May, 2020 but could not proceed due to COVID-19 restrictions. The application to dismiss issued in August, 2020, some three months after the second aborted hearing date.


. A striking feature of this application to dismiss is that the Defendant's solicitor wrote a series of letters without response of any kind from the Plaintiff's solicitor. This correspondence included letters dated the 7 th of July, 2020, 14 th of July, 2020, 5 th of August, 2020, 29 th of September, 2020, 25 th of February, 2021, 1 st of June, 2021, 17 th of September, 2021, 5 th of October, 2021 asking, inter alia, if the Plaintiff was ready to proceed and calling on the Plaintiff to make an application to list the case for a further hearing date in circumstances where the Plaintiff was further assessed on behalf of the Defendant in March and April, 2020 in respect of the enlarged case. Finally, by letter dated the 10 th of March, 2022, the Defendant's solicitor wrote advising of an intention to apply to dismiss the proceedings in view of the fact that it was then almost 12 years post-accident and the Plaintiff had not proceeded to secure a fresh hearing date for the proceedings. The decision to instruct counsel to draft a motion to dismiss was communicated by letter dated the 29 th of March, 2022.


. The Plaintiff's solicitor served a Notice of Intention to Proceed in January, 2023. I am advised that the case is now ready for a date.


. The application is grounded on the Affidavit of Robert Laffan, Solicitor for the Defendant, who refers to the overall delay of more than twelve years between the occurrence of the incident which led to the institution of proceedings and the bringing of the application to dismiss. He asserts prejudice because the claim is one which will be based entirely on the oral testimony of all relevant witnesses. He exhibits some 13 letters between the 27 th of February, 2020 and the 29 th of March, 2022 calling on the Plaintiff to advance the proceedings. Not once did the Plaintiff's solicitor reply to any of this correspondence.


. In a replying affidavit sworn by the Plaintiff personally she explains an unhappy history with her legal representation prior to her current solicitors coming on record in 2017. In terms of delays following the adjournment of the case in February, 2020, she explains that she engaged with the Defendant's experts during this period but also lost her job in March, 2020, she says for reasons connected with her injury. She confirms that the case was unable to proceed on the new hearing date assigned in May, 2020 due to the COVID-19 Pandemic.


. The Plaintiff avers that when her case was adjourned in February, 2020 she was informed by her solicitors of the necessity to provide a significant sum of money for outlays, medical, engineering and other expert reports, legal fees etc. Her explanation for a failure to advance the hearing of her case since the summer of 2020 is a lack of resources. She confirms that her parents agreed to sell a property to fund the litigation, but the sale fell through on a number of occasions, partly due to the COVID-19 Pandemic. A Notice of Intention to Proceed is exhibited in draft form. The Court record shows that this has since been filed.


. In a second Affidavit, Mr. Laffan contended that no excuse or acceptable explanation had been offered for delay by the Plaintiff noting that while the adjournment of the first hearing date was sought by the Defendant, this was because of the late delivery of medical reports. Further, while he did not dispute that the Plaintiff had engaged with medical assessors on behalf of the Defendant in March and April, 2020, this did not constitute a step in the proceedings. Referring to the period of 2 1/2 years which had passed since the second hearing date in May, 2020 without any step being taken to get the matter on for hearing, Mr. Laffan maintained that the financial issues cited do not excuse this delay.


. I have the benefit of the parties written legal submissions in this case and books of authority which were presented in support of each side's position. I have had occasion to consider the legal principles applicable to this type of application in reliance on the inherent jurisdiction of the Court on a number of occasions in recent months. In my recent ruling in the case of City Pharmacy, Corrigan Pharmacy Holdings Limited and Eileen Corrigan v. Roche & Ors. delivered on the 19 th of May, 2023, I adopted the summary of principles contained in the recent Court of Appeal decision in Gibbons v N6 (Construction) Limited [2022] IECA 1 12, as cited with approval by the later Court of Appeal decision of Cave Projects Limited v Kelly [2022] IECA 245.


. In both Gibbons and Cave the Court of Appeal engaged in an extensive review of the authorities, many of which are cited by the parties in their submissions. There is no real disagreement between the parties as to the applicable principles, albeit they part ways in their application of the principles. Indeed, there is an overlap in the authorities relied upon by the parties in this application and both the Plaintiff and the Defendant rely on the decision of the Court of Appeal in Cave. As set out in Cave, the starting point on an application of this kind is a consideration of the three-limb test set out in Primor and summarised by Barniville J. (as he then was) in Gibbons at para. 79 as follows:-

“There are three limbs to the Primor test. The defendant must first establish that the delay on the part of a plaintiff in the prosecution of the claim has been inordinate. If it establishes that the defendant must then establish that the delay has been inexcusable. If the defendant establishes, or if it is agreed, that the delay is both inordinate and inexcusable, the court must exercise a judgment on whether, in its discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case. (per Hamilton C.J. in Primor at para.(e) on p. 475)”.


. As regards the balance of justice, Barniville J. noted in Gibbons (at para. 82) a list of factors which the Court was entitled to consider in determining this...

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