O'Reilly v Córas Iompair Éireann

JurisdictionIreland
Judgment Date21 June 1973
Date21 June 1973
Docket Number[1966. No. 711 P.]
CourtHigh Court
O'Reilly v. Coras Iompair Éireann
PAULA O'REILLY, an Infant, suing by her father and next friend, Thomas J. O'Reilly
Plaintiff
and
CORAS IOMPAIR EIREANN
Defendants.
[1966. No. 711 P.]

Practice - Time limit - Extension - Delivery of statement of claim - Delay of eight years - Application to dismiss action for want of prosecution - Rules of the Superior Courts, 1962 (S.I. No. 72),Or. 20, r. 2; Or. 108, rr. 7, 11.

On the 21st March, 1963, the plaintiff was knocked down and injured by an omnibus which was owned by the defendants; she was then 61/2 years old. On the 3rd September, 1963, the plaintiff's original solicitor wrote to the defendants and claimed damages on her behalf, but the defendants repudiated liability on the 9th December, 1963. The plaintiff's plenary summons was issued in the High Court on the 16th March, 1966, but it was not served until the 10th March, 1967. On the 15th October, 1969, the defendants were notified that the plaintiff's present solicitor had been appointed. On the 2nd February, 1971, the Master of the High Court granted an application by the plaintiff for an extension of the period allowed for delivering her statement of claim, and refused an application by the defendants for an order dismissing the plaintiff's action for want of prosecution. On appeal by the defendants it was

Held by Henchy J., in disallowing the appeal, 1, that no blame for the delay could be attributed to the plaintiff personally, or to the defendants.

2. That in the particular circumstances the plaintiff's action should be allowed to proceed notwithstanding the inordinate and inexcusable delay and the fact that the defendants would probably be prejudiced by that delay.

Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229considered.

Motion on notice.

The facts have been summarised in the head-note and they appear in the judgment of Henchy J., post. The question of the identification of a plaintiff with the inactivity of his solicitor was considered in Duignan v. R. F. Fry (Associates) Ltd.1 in the context of a limitation statute.

Order 20, r. 2, of the Rules of the Superior Courts, 1962, provides that:— "Where the procedure is by plenary summons, the plaintiff may deliver a statement of claim

with the plenary summons or notice in lieu thereof, or at any time within twenty-one days from the service thereof."

Order 108, r. 7, of the Rules provides:— "The Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

Order 108, r. 11, provides that:— "In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule."

Cur. adv. vult.

Henchy J. :—

On the 21st March, 1963, the plaintiff, who was then 61/2 years old, was knocked down by one of the defendants' buses and suffered personal injuries. The accident was investigated by the police and they got a statement in writing from the bus driver who, on legal advice, confined himself to saying that he was the driver of the bus involved in the accident. The conductor made a statement but he did not see the collision. Adrian Byrne, who was driving a milk-van behind the bus, made a statement in which he said that the bus was going at a very slow speed and that, as the bus came level with an oncoming bus which was pulling away from a bus-stop, the plaintiff ran out from behind the oncoming bus and under the bus ahead of him. It is agreed that Mr. Byrne was the only independent witness of the accident.

On the 3rd September, the plaintiff's then solicitor wrote to the defendants giving notice that, if they did not accept liability, proceedings would be instituted. Further letters were exchanged for the purpose of having the plaintiff medically examined on behalf of the defendants, and on the 9th December, 1963, the defendants' claims manager wrote to say that he had completed his inquiries and had ample evidence on his files to show that there was no negligence on the part of the defendants and that he was therefore repudiating liability.

From a letter dated...

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