Sherry v Primark Ltd T/A Pennys

JurisdictionIreland
Judgment Date19 March 2010
Date19 March 2010
Docket Number[2004 No. 9182
CourtHigh Court
Sherry v. Primark Ltd. t/a Penneys
Linda Sherry
Plaintiff
and
Primark Limited and Grosvenor Cleaning Services Limited
Defendants
[2010] IEHC 66,
[2004 No. 9182 P]

High Court

Practice and procedure - 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 (S.I. No. 15), O. 15, r. 13 - Personal Injuries Assessment Board Act 2003 (No. 46), ss. 4, 6, 10 and 12.

Section 6 of the Personal Injuries Assessment Board Act 2003 ("the Act of 2003") provides that nothing in the Act affects proceedings brought before the Act's commencement, and s. 12 provides, inter alia, that proceedings cannot be brought in respect of a civil action to which the Act applies unless an application for assessment is first made to the Personal Injuries Assessment Board and the proceedings are authorised by the Board.

Arising out of a personal injuries action, the plenary summons for which was issued before the commencement of the Act of 2003, the first defendant issued a notice of motion seeking liberty to issue and serve a third party notice on the second defendant. At the hearing of that motion, the plaintiff applied to join the second defendant in the action, which application was granted. An amended plenary summons and a statement of claim were served on the second defendant. The plaintiff then submitted an application to the Personal Injuries Assessment Board in respect of the second defendant and an authorisation issued. The second defendant entered a "without prejudice" or conditional appearance. Subsequently, the plaintiff issued a notice of motion seeking judgment in default of defence against the second defendant. At the hearing of the motion, the second defendant submitted that the plaintiff's proceedings against it were not properly before the court, as the plaintiff had failed to obtain an authorisation from the Board pursuant to s. 12(1) of the Act of 2003 in advance of bringing proceedings against it. The plaintiff contended that an authorisation was not required where a defendant was added to existing proceedings, whether such proceedings were commenced before or after the Act of 2003 came into force.

Held by the High Court (O Néill J.), in refusing the application for judgment in default of defence and setting aside the order joining the co-defendant in the proceedings, that, pursuant to ss. 10(b) and 12(1) of the Act of 2003, where an authorisation from the Personal Injuries Assessment Board had not been obtained for the relevant claim prior to the bringing of proceedings, the plaintiff was prohibited from invoking the jurisdiction of the court to join an additional defendant. The issuance of an authorisation from the Personal Injuries Assessment Board subsequent to the plaintiff's application to join the second defendant as a co-defendant was ineffective to cure this jurisdictional deficit.

Obiter dictum: A necessary exception would occur where a court, of its own motion, joined a new defendant in order to avoid the constitutionally impermissible interference in the administration of justice which would result if a judge were prevented from joining an additional defendant whom the court had determined should be joined in order to do justice to the case.

There are no cases mentioned in this report.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of the High Court delivered by O Néill J.,infra.

By notice of motion dated the 27th February, 2009, the plaintiff sought judgment in default of defence against the second defendant. The motion was heard before the High Court (O Néill J.) on the 30th November, 2009.

Cur. adv. vult.

O Néill J.

19th March, 2010

Factual background

[1] The plaintiff was an employee of the first defendant. She alleges that on the 5th 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 on the 31st May, 2004, against the first defendant only.

[2] The Personal Injuries Assessment Board Act 2003 ("the Act of 2003") came into force on the 1st June, 2004, pursuant to the Personal Injuries Assessment Board Act 2003 (Commencement) (No. 2) Order 2004.

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

[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 defendant as a co-defendant on that date.

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

[6] The plaintiff submitted an application to the Personal Injuries Assessment Board in respect of the second defendant on the 28th January, 2008. An...

To continue reading

Request your trial
9 cases
  • Murphy v DePuy International Ltd
    • Ireland
    • High Court
    • 20 January 2015
    ...procedure but goes to the root of the court's jurisdiction to hear and determine the claim. This was made clear in Sherry v Primark Ltd. [2010] 1IR 407 where O'Neill J. states: "Section 12(1) stipulates that an application first be submitted to the Personal Injuries Assessment Board for an ......
  • Stephens v Archaeological Development Services Ltd
    • Ireland
    • High Court
    • 21 December 2010
    ...PLAINTIFF AND ARCHAEOLOGICAL DEVELOPMENT SERVICES LIMITED DEFENDANT SHERRY v PRIMARK LTD T/A PENNYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66 PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3 PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(A) PE......
  • Clarke v O'Gorman
    • Ireland
    • Supreme Court
    • 30 July 2014
    ...referred to the Board and the proceedings were not duly authorized by the Board. The defendant relied upon the case Sherry v. Primark [2010] 1 I.R. 407 in support of the submission that the court had no jurisdiction to hear the plaintiff"s action. The trial judge as aforementioned had accep......
  • O'N (J) v McD (S) and Others
    • Ireland
    • High Court
    • 22 March 2013
    ...ACT 2009 S6 DEFAMATION ACT 2009 S17 DEFAMATION ACT 2009 S17(2)(G) SHERRY v PRIMARK LTD T/A PENNEYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66 CUNNINGHAM v NORTH EASTERN HEALTH BOARD UNREP HEDIGAN 15.5.2012 2012 IEHC 190 CIVIL LEGAL AID ACT 19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT