Philomena Hennessy v Ladbrooks Payments (Ireland) Ltd and Ladbrooks (Ireland)

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger J
• Judgment Date: 03 February 2022
• Neutral Citation: [2022] IEHC 60
• Court: High Court
• Docket Number: [2016/4217P]

Between

Philomena Hennessy

Plaintiff

and

Ladbrooks Payments (Ireland) Limited and Ladbrooks (Ireland)

Defendants

[2022] IEHC 60

[2016/4217P]

THE HIGH COURT

Bound to fail – Statute barred – Want of prosecution – Defendant seeking to dismiss proceedings – Whether the proceedings were bound to fail as being statute barred

Facts: The plaintiff, Ms Hennessy, was employed by the defendant, Ladbrooks Payments (Ireland) Ltd, as a customer service manager from 22 April 1998 until her employment terminated by reason of redundancy on 11 August 2015 at which time she signed a compromise waiver agreement dated 17 July 2015. Some eight months after signing that agreement the plaintiff lodged an application with PIAB on 6 April 2016. A personal injury summons was issued on 12 May 2016 in which the plaintiff claimed that she was repeatedly required to engage in repetitive movements and/or to work in awkward and unsuitable conditions during her employment by reason of the defendant’s negligence and/or breach of duty which caused her personal injuries. The particulars of injuries stated that she developed pain in her right shoulder in 2009 and set out her treatment and further symptoms from then until February 2016. In an interlocutory application to the High Court the defendant sought to dismiss the proceedings on three separate grounds: (1) that the proceedings were bound to fail because the plaintiff signed the waiver agreement waiving any right of action against the defendant; (2) that the proceedings were bound to fail as being statute barred; (3) that the proceedings should be dismissed for want of prosecution pursuant to O. 36, r. 12 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court on the basis of the plaintiff’s inordinate and inexcusable delay in the commencement and conduct of the proceedings and/or the real risk of an unfair trial arising therefrom.

Held by Bolger J that she was not satisfied, on the basis of the affidavit evidence before her, that the plaintiff’s claim was bound to fail. Bolger J found that the plaintiff had hurdles to overcome including the execution of the waiver agreement and the statute of limitations. Bolger J held that these were issues on which she was entitled to call evidence which may assist her in satisfying the trial judge that she was entitled to proceed. Bolger J held that both the issues of the waiver agreement and the statute of limitations should be dealt with by the trial judge as a preliminary issue.

Bolger J was not satisfied that any delay that had occurred or any prejudice the defendant sought to have suffered as a result, was such that the proceedings should be dismissed.

Application refused.

DECISION of Ms. Justice Bolger J delivered on the 3rd day of February, 2022

1 The plaintiff was employed by the defendant as a customer service manager from 22 April 1998 until her employment terminated by reason of redundancy on 11 August 2015 at which time she signed a compromise waiver agreement dated 17 July 2015 (hereinafter referred to as ‘the waiver agreement’). Some eight months after signing that agreement the plaintiff lodged an application with PIAB on 6 April 2016. A personal injury summons was issued on 12 May 2016 in which the plaintiff claimed that she was repeatedly required to engage in repetitive movements and/or to work in awkward and unsuitable conditions during her employment by reason of the defendant's negligence and/or breach of duty which caused her personal injuries. The particulars of injuries stated that she developed pain in her right shoulder in 2009 and set out her treatment and further symptoms from then until February 2016.

2 In this interlocutory application the defendant seeks to dismiss the proceedings on three separate grounds:

I set out below the submissions of the parties and my decision in relation to each of the defendant's applications.

• (1) That the proceedings are bound to fail because the plaintiff signed the waiver agreement waiving any right of action against the defendants.

• (2) That the proceedings are bound to fail as being statute barred.

• (3) That the proceedings should be dismissed for want of prosecution pursuant to O.36, r.12 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of this Court on the basis of the plaintiff's inordinate and inexcusable delay in the commencement and conduct of the proceedings and/or the real risk of an unfair trial arising therefrom.

The Waiver Agreement

3 The defendant contends that the waiver agreement of 17 July 2015 precluded the plaintiff from issuing or pursuing these proceedings as the plaintiff waived any cause of action she may have had against the defendant. The defendant describes this as providing them with an unanswerable defence to the proceedings.

4 The relevant extracts from the agreement are as follows:

Clause 4.2 that “the Employee will not commence or pursue any proceedings or claim of any nature whatsoever against the Company, any Group Company and their respective present and former officers, shareholders, agents and employees in relation to the Employee's employment and its termination.”

Clause 5.2 that “the Employee has signed this Agreement having full knowledge of the Employee's legal rights and having taken independent legal advice as to its terms and effect. The Employee further confirms that the Employee had entered into this Agreement without any coercion of any description.”

Clause 5.3 that the employee warrants that she “is not aware of any facts or circumstances which might give rise to any claim by the Employee against the Company including a personal injury claim other than those claims that the Employee expressly raised in open correspondence with the Company or the Company's advisor acting on its behalf. The Employee acknowledges that the Company acted in reliance on these warranties when entering into this Agreement.”

5 The plaintiff sought discovery from the defendant of, inter alia, documents relating to the agreement and any negotiation of it. In the defendant's affidavit of discovery sworn on 31 March 2021, a copy of the agreement is exhibited and in part one of the second schedule to the affidavit it is stated that there are no documents that were in the deponent's possession but are not now. Therefore the only document that the defendant has ever had in relation to the waiver agreement and any negotiations leading to same is the waiver agreement itself and the defendant never had any documentation pertaining to any pre-agreement negotiations between the plaintiff and the defendant.

6 The plaintiff in her replying affidavit says that she did not take legal advice as to the term or effect of the agreement and was not advised to do so, describes the agreement as having been put to her on a “take it or leave it” basis and says that she was informed that if she did not sign the document, that another employee would be offered redundancy instead of her. She said she felt under pressure to sign the document as she was keen to leave her employment with the defendant as she was having a stressful time at work. This version of events seems to me to be consistent with the absence of any documentation relating to any negotiations leading to the agreement i.e. that she was presented with the document on the basis that if she did not sign it, she would not secure the redundancy that being made available to her. In those circumstances it is difficult to understand how the defendant could have contended, as it purported to do at Clause 5.2 of the agreement, that the plaintiff had taken independent legal advice as to the agreement's terms and effect. Not only was the plaintiff not advised by the defendant to take independent legal advice but she was not offered or given any opportunity to do so. Instead the defendant stated in the agreement that she had taken legal advice, when in fact she had not.

7 The defendant seeks to excuse what seems to me to be an untrue statement in the waiver agreement, on the basis that any obligation they may have had to advise their employee to take legal advice fell away when the employee signed a document saying that she had done so. The defendant contends that the plaintiff must take responsibility to read and have some understanding of the document and that she is bound by what she signed. The defendant relies on the decisions of this Court in ACC v. Kelly [2011] IEHC 7 and Quinn v. IRBC [2011] IEHC 470, in which borrowers who had given no thought to what they were signing, were found to be bound by the mortgage agreement ( Quinn) and where a person who signs an agreement without understanding its terms and without taking advice was required to accept the consequences ( Kelly).

8 Had the plaintiff taken legal advice (as the agreement claims she did) then the defendant may have been entitled to rely on the waiver contained in the agreement. Absent such advice, the question arises whether the defendant was...