Roche v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 01 October 2018
• Neutral Citation: [2018] IEHC 533
• Court: High Court
• Docket Number: 2012 No. 6105 P
• Date: 01 October 2018

Between:

PATRICK ROCHE

Plaintiff

– AND –

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE IRISH PRISON SERVICE, IRELAND

AND

THE ATTORNEY GENERAL

– AND BY ORDER –

NICHOLAS O'DRISCOLL

Defendants

[2018] IEHC 533

2012 No. 6105 P

THE HIGH COURT

Personal injuries – Strike out – Inordinate and inexcusable delay – Defendants seeking to strike out a personal injuries claim – Whether there was inordinate and inexcusable delay in the prosecution of the proceedings

Facts: The defendants, the Minister for Justice, Equality and Law Reform, the Irish Prison Service, Ireland, the Attorney General and Mr O’Driscoll applied to the High Court to strike out, for inordinate and inexcusable delay in the prosecution of the proceedings and/or want of prosecution, a personal injuries claim being brought by the plaintiff, Mr Roche, in respect of a prison fight in which he was allegedly involved back in February 2005 and where the last activity in these proceedings, prior to this application, was the issuance and service of a notice of trial in February 2013.

Held by Barrett J that, having applied Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and noted that these were proceedings where (i) the plaintiff’s alleged injury happened almost 13½ years prior, (ii) there was nothing unusual about the nature of the injury suffered and (iii) nothing at all had been done by the plaintiff since the notice of trial issued and was served almost 5½ years prior, he did not see how, in circumstances where the court had concluded that there had been inordinate and inexcusable delay, it would be discharging properly its constitutional/ECHR obligations were it not to accede to this application.

Barrett J held that he would accede to the application.

Application granted.

JUDGMENT of Mr Justice Max Barrett delivered on 1st October, 2018.

1 This is an application to strike out, for inordinate and inexcusable delay in the prosecution of the proceedings and/or want of prosecution, a personal injuries claim being brought by a prisoner in respect of a prison fight in which he was allegedly involved back in February 2005 and where the last activity in these proceedings, prior to the within application, was the issuance and service of a notice of trial in February 2013. The basis for the application is contained in a single affidavit sworn by a solicitor acting for the defendants which, to the extent relevant, is quoted hereafter:

‘…2. I beg to refer to a bound book of pleadings to date when produced to include:

i. Personal Injuries Summons, issued on the 30th October, 2007;

ii. Entry of Appearance, dated 19th December, 2007;

iii. Notice for Particulars, dated 19th December 2007;

iv. Replies to Particulars, dated 1st August, 2008;

v. Order, Reply to Rejoinders, dated 2nd November, 2009;

vi. Defence, fated 10th June, 2010;

vii. Notice of Trial, dated 4th October, 2010;

viii. Order, Joinder of a Co-Defendant, dated 22nd June, 2011;

ix. Amended Ordinary Civil Bill, dated 7th July, 2011;

x. Entry of Appearance;

xi. Notice for Further and Better Particulars, dated 22nd July, 2011;

xii. Reply to Particulars, dated 9th November, 2011;

xiii Order, Transfer to the High Court, dated 3rd May, 2012;

xiv. Notice of Trial, dated 5th February, 2013.

3…. [T]he First Named Defendant is a Minister of State, the Second Named Defendant is a body incorporated pursuant to statute and the Third Named Defendant is the State. I say that the Defendants are the owners, occupiers and operators of those premises being Cork Prison in the City of Cork. The Fourth Named Defendant is the Constitutional Law Officer of the State.

4…. [B]y Order of the Circuit Court dated 22nd day of June 2011, the Fifth-Named Defendant was joined as a Co-Defendant to the proceedings.

5…. [T]hese proceedings arise out of a claim by the Plaintiff alleging that on or about the 23rd day of February 2005, while detained in Cork Prison, he was attacked by a number of fellow inmates, as a result of which it is alleged that the Plaintiff sustained personal injury, loss and other damage.

6….. [T]he Plaintiff sought in the Amended Ordinary Civil Bill damages for negligence, breach of duty and breach of statutory duty of the Defendants or any or all of them acting by themselves or through their servants or agents.

7…. [A] full Defence was delivered on the 10th June 2010, on behalf of the First, Second, Third and Fourth Named Defendants and all matters were put in issue.

8…. [T]here has been no activity whatsoever in these proceedings for many years [in fact since February 2013] and the Defendants herein seek an Order in these proceedings dismissing the proceedings for inordinate and inexcusable delay in the prosecution of the proceedings and/or want of prosecution pursuant to the RSC and the Court's inherent jurisdiction; and in addition seek such an Order on the basis that it would be fundamentally unfair and contrary to the rights enjoyed by the Defendants pursuant to the European Convention on Human Rights to permit the claim to proceed and put the Defendants in the unenviable position of endeavouring to defend these proceedings.

9. I say that the delay by the Plaintiff in this matter is inordinate; I also respectfully submit that it is inexcusable and that the balance of justice favours dismissal.’

2 When it comes to adjudicating upon an application such as that now presenting, there are two lines of potentially applicable authority, the Primor line of authorities (following on Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459) and the O'Domhnaill line of authorities (following on O'Domhnaill v. Merrick [1984] I.R. 151). There appears to be no dispute between the parties but that the Primor line of authorities is the appropriate line of authorities to apply in the context of the within application.

3 As is clear from the decision of the Court of Appeal in Cassidy v. The Provincialate [2015] IECA 74, the Primor test requires the court to assess whether the delay presenting is inordinate, whether the delay presenting is inexcusable, and whether the balance of justice requires the dismissal of the proceedings. The court applies this three-limbed test hereafter. However, in passing, the court notes that the within proceedings were commenced just inside the limitation period, thus bringing into play that ‘ obligation of expedition’ referred to in Millerick v. Minister for Finance ...