Quintiliani (plaintiff) v Iralco Ltd
| Jurisdiction | Ireland |
| Judgment Date | 17 January 2007 |
| Neutral Citation | [2007] IEHC 10 |
| Date | 17 January 2007 |
| Docket Number | [1999 No. 4696P] |
| Court | High Court |
[2007] IEHC 10
THE HIGH COURT
[1999 No. 4696P]
Practice and procedure - Want of prosecution - Delay - Prejudice - Whether it would be unjust to require the second named defendant to defend the proceedings having regard to the delay since the date of the accident.
The second named defendant applied to have the plaintiff’s claim dismissed for want of prosecution due to delay. The plaintiff’s case arose out of alleged injuries sustained by him as a result of an accident in the course of his employment in 1996. However, the second named defendant was not made aware of the proceedings until 2003.
Held by O’Neill J. in granting the application: That the plaintiff was guilty of inordinate and inexcusable delay, which resulted in prejudice to the second named defendant. The defendant was left bereft of evidence due to the passage of time. It would be unjust to require the defendant to defend the claim at this remove of time.
Reporter: L.O’S.
EX TEMPORE JUDGMENT of O'Neill J. delivered the 17thday of January, 2007.
This is an application to dismiss the plaintiff s claim for want of prosecution. In the course of the argument Ms. Costello for the second named defendant, who was the moving party also sought to move the court for a similar order against the notices of indemnity and contribution directed at the second named defendant by the first named defendant. I was quite satisfied that the first named defendant was not adequately on notice of that application by the second named defendant and I ruled accordingly.
The application, therefore is confined to an application to dismiss for want of prosecution, the plaintiff s claim.
The plaintiff in his proceedings alleges that he had an accident on the 30th May, 1996 when he fell off a ladder at the first named defendants premises as a result of this fall he suffered a significant laceration of his left wrist. He issued a plenary summons on the 6thMay, 1999. There is no evidence whatsoever as to what activity, if any, took place between the occurrence of the alleged incident and the issuance of
the plenary summons. A statement of claim was delivered on the 24th May, 1999, there was a reply to a request for particulars on the 8th February, 2000 and the defence of the first named defendant was delivered on the 5th July, 2000 in which the second named defendant was named. An application was brought by the first named defendant to join the second named defendant as a third party and by order of this court, made by me, the second named defendant was joined as a co-defendant, it would appear at the request of the plaintiff on the 23rd October, 2000.
A confused state of affairs, to say the least and most benign thing about it, then set in. The plaintiff s solicitor, apparently not aware, that the order had been made on an application of counsel for the plaintiff, to join the third party as a co defendant, continued over a period of nearly two years to question the validity of the order, in a desultory fashion. Eventually in late September 2002 he learnt of the mistake and proceeded to issue the amended plenary summons on the 24th September, 2002.
Difficulties of course arose immediately. There were three problems. The first is that service was out of time, the second was that service was rejected by the second named defendant on two grounds. Firstly, that the summons itself and not notice of it was sought to be served in breach of the rules and secondly, that the text of the summons was not in the appropriate language as required by an EU Regulation.
The purported service of the amended plenary summons took place in January, 2003. Immediately the solicitor for the second named defendant queried the validity of the service and sought to assert very reasonably and correctly the rights of the second named defendant in that regard. By letter of the 20th March, 2003 the solicitor for the second named defendant requested the documentationinter aliawhich was referred to in the order of the 20th October, 2003. A letter of the 2nd April, 2003 from
the second named defendant intimated to the plaintiff that the second named defendant was reviewing its position.
In the light of the fact that it was in January, 2003 that there was the first intimation of a claim, six and half years after the alleged incident, that is hardly surprising. On the 23rd April, 2003 a further letter was sent from the second named defendant requesting the information which had been sought in the letter of the 20th March, 2003. On the 15th May, 2003 the plaintiff's solicitors wrote to the second named defendant refusing the information and documents sought in the letter of the 20th March, 2003, on the ground that the second named, defendant had not put in an appearance and come on record. On the 23rd May, 2003 Mr. Eric Berggotz the deponent for the second named defendant swore an affidavit to ground an application to set aside service of the amended summons. On the 12th June, 2003 the second named defendant issued a motion to set aside service of the amended plenary summons. This motion was adjourned on the 14th and 24th July, 2003 at the request of the plaintiff, in order to put in a replying affidavit and on the second occasion the motion was adjourned again at the request of the plaintiff, to the 10th November, 2003. On the 25th July, 2003 a replying affidavit in that motion was sworn by Mr. Butler, the solicitor for the plaintiff. This affidavit was not served on the second named defendant until the 5th November, 2003 and as a consequence of that late service, a further adjournment was necessitated to enable the second named defendants to take instructions on the content of Mr. Butler's affidavit.
On the 17th November, 2003 the plaintiffs issued a motion to extend the time for the issuance and service of the amended plenary summons and that application in due course was successful. By a letter of the 21st November, 2003 the solicitor for the second defendant refused to accept service of proceedings. Thereafter it would
appear that the second named...
To continue reading
Request your trial