Rogers v Michelin Tyre Plc and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 28 June 2005
• Neutral Citation: [2005] IEHC 294
• Court: High Court
• Docket Number: [No. 2633P/1997]
• Date: 28 June 2005

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD

BETWEEN

RODERICK ROGERS

PLAINTIFF

AND

MICHELIN TYRE PLC AND MICHELIN PENSIONS TRUST (NO 2) LIMITED

DEFENDANTS

[2005] IEHC 294

[No. 2633P/1997]

THE HIGH COURT

PRACTICE AND PROCEDURE:

Delay

PRACTICE AND PROCEDURE:

Dismissal of proceedings

Dismissal of proceedings for want of prosecution - Inordinate and inexcusable delay - No step in proceedings for six years - Acceptance by plaintiff's solicitor that he was responsible for the delay - Whether delay of over six years during which no step was taken inordinate - Whether delay excusable - Balance of justice - Whether defendant prejudiced by plaintiff's delay - Whether where responsibility for delay rests upon professional adviser court should take into account that plaintiff may have alternative means of enforcing rights - Application granted in respect of second defendant(1997/2633P - Clarke J - 28/6/2005) [2005] IEHC 294

Rogers v Michelin Tyre plc and Michelin Pensions Trust (No 2) Ltd

Facts: The defendants sought to have the plaintiff’s claim dismissed for want of prosecution. The second named defendant also sought to have the plaintiff’s claim dismissed on the basis that as against it, the plaintiff’s claim must fail. The plaintiff was required to retire early from his employment with the first named defendant due to a back injury. His application for a pension was refused on the grounds that he did not qualify under the pension scheme. Following a meeting with his employers the plaintiff accepted a lump sum in relation to the termination of his employment. The plaintiff alleged that he was induced to accept the termination of his employment by way of certain representations made at that meeting.

Held by Clarke J. in dismissing the proceedings in their entirely as against the second named defendant but in part only as against the first named defendant:

1. That the delay of over six years in this case during which no step was taken towards progressing the plaintiff’s claim was inordinate and inexcusable.

2. That the first named defendant would suffer at least a moderate degree of prejudice in defending the action insofar as it related to the alleged representations made at a meeting in circumstances where that meeting occurred over ten years ago. Therefore the balance of justice favoured the granting of an order dismissing this aspect of the case.

3. That if the plaintiff had a legitimate complaint concerning the refusal to pay him his pension benefits then that complaint was against the first named defendant and not against the second named defendants. Accordingly, the proceedings as against the second named defendant ought to be stayed.

Reporter: L.O’S.

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

GILROY v FLYNN 2005 1 ILRM 290

DOWD v KERRY CO COUNCIL 1970 IR 27

DUNNE v ELECTRICITY SUPPLY BOARD (ESB) UNREP LAFFOY 19.10.1999 1999/10/2485

HOGAN v JONES 1994 1 ILRM 512

PRIMOR PLC (PMPA) v FREANEY & STOKES KENNEDY CROWLEY 1996 2 IR 459

O'DOMHNAILL v MERRICK 1984 IR 151

MANNING v BENSON & BENSON HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190

BARRY v BUCKLEY 1981 IR 306

Mr. Justice Clarke

1 Both defendants in these proceedings have brought applications before the court seeking the dismissal of the plaintiff claim. In the case of the first named defendant ("Michelin") it is sought to have the plaintiff's claim dismissed on the basis of a want of prosecution.

2 In the case of the second named defendant ("The Pension Trust") it is sought to have the plaintiff's claim dismissed both on the basis of a want of prosecution and also on the basis that, as against the Pensions Trust, the plaintiff's claim must fail.

3 As both applications are similar insofar as they seek dismissal for want of prosecution I would propose dealing with that aspect of the case first.

Want of Prosecution

(a) The case

4 The sequence of events material to a consideration of this aspect of the case is relatively straight forward. The plaintiff is now 58 years of age and commenced employment with Michelin in 1973 as a sales man in the car tyre industry. He remained in that capacity as an employee of Michelin for 22 years until September 1995. It is common case that as a result of a physical injury to his back (which was unrelated to his employment) the plaintiff became unable to work. It is also common case that there were certain discussions which appear to have occurred on 15th September, 1995 between on the one hand the plaintiff and on the other hand Michelin represented by his immediate superior and the Human Resources Manager of that company. It would not appear to be disputed that as a result of that meeting the plaintiff accepted a lump sum of IR£12,000 in relation to a termination of his employment.

5 It is also common case that for a considerable period of time Michelin has operated a pension scheme for the benefit of employees into which was paid various sums properly deducted from employees wages in accordance with the terms of that scheme and, it would appear, additional sums contributed by Michelin itself also in accordance with the scheme. All such sums were paid to the Pensions Trust who hold the money so received under the terms of the various deeds which from time to time specified the trust upon which the funds are to be held. It is not in dispute but that, in certain circumstances, a person taking early retirement by virtue of disability may be entitled to obtain an early and immediate pension under the terms of that scheme. The controversy between the parties in this case is as to whether the plaintiff is entitled so to benefit either because:

6 (a) representations were made to him at the meeting of the 15th September, 1995 to that effect in order to induce him to accept a termination of his employment for the sum of IR£12,000; or

7 (b) because, it is said, he objectively qualifies for such a payment and is legally entitled to enforce a claim to such payment.

The Sequence of Events

8 On the evidence before me it would appear that an application by the plaintiff for the payment of such a pension was refused on the grounds that the plaintiff, it was said, did not qualify under the scheme. It would appear that the plaintiff first notified Michelin of his concerns in relation to that refusal by letter dated 16th November, 1995. There followed a series of letters from solicitors acting for the plaintiff both to Michelin and to a Dr. Hobson who had, it would appear, acted as medical advisor to Michelin in respect of the plaintiff's case. It has to be said that the difficulty which the plaintiff had in receiving any response from Michelin in relation to his concerns does not reflect any credit on the company. The first reply of any substance was contained in a letter of 29th July, 1996 (which is just short of nine months after the original letter had been sent). It also has to be said that the letter of 29th July simply referred the matter to the Legal Department of the Pension Trust. The first substantive reply came on 9th September, 1996 from a solicitor in that legal department which enclosed a copy of the pension booklet and so far as the substantive matters raised in the correspondence are concerned simply confirmed that the "principal employer" (who was Michelin) "stands by its original decision to dismiss Mr. Rogers on the grounds of his incapacity". In the light of the detailed concerns expressed in the correspondence, the letter of the 9th September is particularly bald especially since it was, apparently, written by a solicitor.

9 In any event there followed some further correspondence which led to the issue of a plenary summons on 7th March, 1997. The proceedings progressed with commendable expedition by the filing of a statement of claim on 19th March, 1997, the raising of and replying to of a notice for particulars which was completed by July 1997 and the filing of a defence by October 1997.

10 Unfortunately no further step appears to have been taken in the proceedings until they were reactivated in excess of six years later. It would appear on the evidence that certain steps towards that reactivation occurred in the early part of 2004. however it was not until March or April of that year that there was a communication to the defendants of the fact the plaintiff was in the course of reactivating the proceedings.

11 Thereafter both defendants brought the applications now before the court seeking to have the plaintiff's claim dismissed for want of prosecution.

The Delay

12 In relation to the delay of in excess of six years during which nothing of any substance occurred in the case it should be noted that the plaintiff's solicitor has, with commendable forthrightness, accepted the blame for that state of affairs. In evidence he indicated that due to pressure of work he did not take any steps in relation to the case until such time as a new solicitor was recruited to deal specifically with this case and other files in the relevant practice. That new solicitor commenced practice in January 2004 and during February 2004 sought and obtained an advice on proofs from senior counsel and also gave instructions to town agents to set the matter down for trial. Because of the lapse of time since the last action in the proceedings the solicitors then acting for both defendants had moved office and the necessary notice of intention to proceed was sent to their old office under cover of a letter dated 23rd February, 2004 but which would appear to have been sent on 8th March, 2004.

The Law

13 It seems clear that despite recent developments in the law in this area the basic questions which the court has to address remain those originally set out inRainsford v. Limerick Corporation ...