Sherry v Primark Ltd t/a Penneys and Grosvenor Cleaning Services Ltd

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IEHC 66
• Docket Number: [No. 9182P/2004]
• Court: High Court
• Date: 19 March 2010

[2010] IEHC 66

THE HIGH COURT

[No. 9182P/2004]

Sherry v Primark Ltd t/a Penneys & Grosvenor Cleaning Services Ltd

Linda Sherry

Plaintiff

And

Primark Limited t/a Penneys

And

Grosvenor Cleaning Services Limited

Defendants

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 (COMMEMCEMENT)(NO 2) ORDER 2004 SI 252/2004

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S17

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S6(1)

RSC O.15 r 13

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S10(B)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4(1)

CIVIL LIABILITY & COURTS ACT 2004 S32(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

SUCCESSION ACT 1965 S117

CIVIL LIABILITY ACT 1961 S9

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12(1)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(D)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 PART II

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S10

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 CHAP 1

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S54

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S4(1)

NEGLIGENCE

Personal injuries

Personal Injuries Assessment Board - Authorisation -Bringing of proceedings - Parties - Joinder - Whether authorisation required to institute proceedings against co-defendant - Whether joining of co-defendant in existing proceedings constitutes the bringing of proceedings by plaintiff against additional defendant - Rules of the Superior Courts 1986 (SI 15/1986), O 15, r 13 - Personal Injuries Assessment Board Act 2003 (No 46), ss 4, 6, 8, 10 & 12 - Joinder set aside (2004/9182P - O'Neill J - 19/3/2010) [2010] IEHC 66

Sherry v Primark Ltd

Facts Arising out of an alleged accident at work, the plaintiff issued a plenary summons on 31 May 2004 against the first defendant only. On 17 August 2006 the first named defendant issued a notice of motion seeking liberty to issue and serve a third party notice on the second named defendant and at the hearing of that motion on 23 October 2006 the plaintiff applied to join the second named defendant as a co-defendant in the action. An order was made by this court joining the second named defendant as a co-defendant and an amended plenary summons and statement of claim were duly served. An authorisation to bring proceedings in respect of the claim against the second named defendant was issued by the Personal Injuries Assessment Board (PIAB) on 7 February 2008, pursuant to s. 17 of the Act of 2003. The plaintiff herein sought, by way of notice of motion, judgement in default of defence against the second named defendant. The second named defendant submitted that the plaintiff's proceedings against it were not properly before this court as the plaintiff failed to obtain an authorisation from PIAB under the Act of 2003 in advance of bringing proceedings against it. The second named defendant relied on s. 12(1) of the 2003 Act in support of its argument. The plaintiff rejected the defendant's proposition and also contended that s. 6(1) of the Act was applicable in any event. It was agreed by the parties that proceedings were commenced against the second named defendant on 23 October 2006, in accordance with the terms of Order 15, rule 13 of the Rules of the Superior Courts, 1986.

Held by O'Neill J. in refusing the plaintiff's application for judgment in default of defence and setting aside the order joining the second named defendant as a co-defendant in the proceedings: That the language used in s. 12(1) and s. 10(b) of the Act of 2003 combined with the purpose of the Act, as gleaned from the preamble and the general scheme of the Act, strongly suggested that the intention of the Oireachtas was to prevent or prohibit the commencement of court proceedings until the procedures set out in the Act of 2003 were followed leading either to an assessment of damages or the issuance of an authorisation. Thus, the correct conclusion was that s. 12(1) operated as a jurisdictional rather than a procedural provision, so that a court did not have a jurisdiction to permit the commencement of proceedings in respect of a relevant claim, until the foregoing procedures under the Act of 2003 had been exhausted. Furthermore, the concept of "proceedings" for the purposes of the Act of 2003 included the joining of additional defendants on an application by the plaintiff. However, an authorisation would not be required where the court of its own motion decided to join a new defendant. As the plaintiff's application was made after the coming into force of the Act of 2003, the plaintiff was not entitled to make that application and the court did not have jurisdiction to entertain it, without the plaintiff first obtaining an authorisation from PIAB.

Reporter: L.O'S.

O'Neill J.

2 1.1 The plaintiff was an employee of the first named defendant. She alleges that on the 5^th January, 2004, whilst at work in its Mary Street department store in Dublin, she slipped and fell on descending a wet staircase, thereby sustaining personal injuries, loss and damage. A plenary summons was issued by her on the 31^st May, 2004, against the first named defendant only.

3 1.2 The Personal Injuries Assessment Board Act2003 ("the Act of 2003") came into force on the 1^st June, 2004, pursuant to the Personal Injuries Assessment Board Act 2003 (Commencement) (No. 2) Order 2004 ( S.I. No. 252 of 2004).

4 1.3 The first named defendant entered an appearance on the 28^th October, 2005. A statement of claim was delivered on the 10th May, 2006. A defence was delivered by the first named defendant on the 17^th August, 2006, which, at para. 8, sought to attribute blame for the plaintiff's accident to the second named defendant. Accordingly, on the same date, the first named defendant issued a notice of motion seeking liberty to issue and serve a third party notice on the second named defendant.

5 1.4 At the hearing of that motion, on the 23rd October, 2006, the plaintiff applied to join the second named defendant as a co-defendant in the action. An order was made by this Court (De Valera J.) joining the second named defendant as a co-defendant on that date.

6 1.5 The time for issuing an amended plenary summons was extended by order of this Court (McKechnie J.) on the 25^th June, 2007. An amended plenary summons and statement of claim were served on the second named defendant on the 27^th July, 2007.

7 1.6 The plaintiff submitted an application to the Personal Injuries Assessment Board ("PIAB") in respect of the second named defendant on the 28^th January, 2008. An authorisation to bring proceedings in respect of the claim was issued by PIAB on the 7^th February, 2008, pursuant to s.17 of the Act of 2003.

8 1.7 On the 30^th May, 2008, a notice claiming indemnity and/or contribution was served on the second named defendant by the first named defendant. On the 14^th November, 2008, a notice of motion seeking judgment in default of appearance against the second named defendant was issued by the plaintiff. An order extending the time for entering an appearance was made, by consent, on the 15^th December, 2008. A "without prejudice" or conditional appearance was entered on behalf of the second named defendant on the 12^th December, 2008. Another notice of motion seeking judgment in default of defence against the second named defendant was issued on the 27^th February, 2009. That is the motion for determination before this Court.

9 1.8 The second named defendant submits that the plaintiff's proceedings against it are not properly before this Court as the plaintiff failed to obtain an authorisation from PIAB under the Act of 2003 in advance of bringing proceedings against it. It relies on s.12(1) of the Act of 2003 in this regard. The plaintiff rejects this proposition and also contends that s.6(1) of the Act of 2003 is applicable in any event. It was agreed by the parties that proceedings were commenced against the second named defendant on the 23^rd October, 2006, in accordance with the terms of O. 15 r.13 of the Rules of the Superior Courts 1986.

2 2.1 Section 12(1) of the Act of 2003 states:-

2 2 "12.-(1) Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46(3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim."

3 2.2 Section 6 of the Act of 2003 states:-

2 2 "6.-(1) Nothing in this Act affects proceedings brought before the commencement of this section."

4 2.3 Section 10(b) of the Act of 2003 states:-

2 2 "10.- This Chapter

(b) prohibits the bringing of proceedings in respect of such a claim unless specified conditions are satisfied."

5 2.4 Section 4(1) of the Act of 2003 defined proceedings as"proceedings in court". That section was amended, however, by s.32(1) of the Civil Liability and Courts Act 2004 ("the Act of 2004"). It states:-

2 2 "32.-(1) For the avoidance of doubt, the reference in the definition of 'proceedings' in section 4(1) of the Act of 2003 to 'proceedings in court' includes, and shall be deemed to have always included, a reference to -

(a) proceedings by way of a counterclaim, and

(b) proceedings by way of the service of a third party notice (other than a third party notice claiming only an indemnity or a contribution)."

6 2.5 Order 15 rule 13 of the Rules of the Superior Courts 1986 states:-

2 2 "13. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every...