Sugg v Ireland
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] IEHC 109 |
| Docket Number | [2002 No. 15436P] |
| Court | High Court |
| Date | 21 February 2017 |
[2017] IEHC 109
THE HIGH COURT
Barrett J.
[2002 No. 15436P]
AND
Damages & Restitution – Injury in prison – O. 122, r. 11 of the Rules of the Superior Courts (1986) – Dismissal of claim – Inordinate delay – Whether delay by plaintiff excusable – Balance of convenience.
Facts: The plaintiff had filed a claim for damages against the State defendants for sustaining injuries by other inmates while the plaintiff was serving sentences in relation to some offences in the prison. The State defendants had now filed a motion for the dismissal of the plaintiff's claim for want of prosecution and inordinate delay.
Mr. Justice Max Barrett refused to grant the desired relief to the State defendants. The Court, however, adjourned the matter in order for the plaintiff's legal advisors for preparing a proposal for expedited resolution of the present case. The Court warned the plaintiff that any further delay on his part would invite orders to his detriment from the Court. The Court held that before granting an order for dismissal, the Court had to first determine whether the delay was inordinate and if the answer was in the affirmative, then the Court had to consider whether the delay could be excused. The Court observed that while excusing the delay, the conduct of the parties and the circumstances of the case should be taken into account. The Court found that in the present case, considerable time had lapsed since the proceedings were issued in 2002, and thus, the delay was inordinate. The Court further held that such a delay was excusable owing to the plaintiff's impecuniosity, period of drug addiction and family-related problems. The Court held that the State defendants would not be prejudiced by the condonation of delay as the relevant records and witnesses were still available in order to proceed with the case.
Mr Sugg is an unemployed roofer, a father, a onetime resident of St Patrick's Institution for young offenders and a past inmate of Mountjoy Prison. He has not been especially fortunate in life; and, by going down the path of criminality, he has to some extent been the author of his own misfortunes. But he is as entitled as the next man to justice; and that is what he seeks now. Of course the State is entitled also to justice; but as a long-experienced party to civil litigation, it does not come to court handicapped by that unawareness of the manifold requirements of civil procedure and/or that want of understanding as to the need for the assiduous pursuit of court proceedings which can afflict those who, through circumstance or education, are less well equipped than others to navigate their way through court proceedings.
The injuries in respect of which Mr Sugg makes his claim for damages in the present proceedings are shocking in nature, if true – and at this point, the court emphasises, Mr Sugg's allegations stand unproven. Mr Sugg maintains that while he was a prisoner in Mountjoy Prison, serving a sentence for one or more offences of a type not revealed in the pleadings, he was attacked by a number of fellow inmates and forcibly taken to a cell where he was slashed with a knife or blade about the face, neck and wrist. The particulars of personal injury pleaded but not proven make for quite gruesome reading. Thus it is alleged as follows:
‘The Plaintiff [Mr Sugg] was initially treated by means of first aid and thereafter taken to the Accident and Emergency Department of the Mater Hospital with lacerations to the left side of his face, neck and left forearm. Examination showed that of the three areas the left forearm was the less seriously injured. There were three parallel incisions already treated with steri-strips in this area. A full thickness of skin was involved but no damage was noted to the underlying tendons, nerves or blood vessels and the strips were left in situ and a dressing applied. Two major incisions of full thickness of the skin were found over the side of the face and a third flap laceration was found behind the left ear. A 6cm laceration extended horizontally across the side of the; left cheek at the level of the ear lobe. At its mid-point a further 16cm laceration passed downwards and backwards below the ear across the angle of the mandible and onto the side of the neck. The Plaintiff was admitted to Hospital under the care of the Plastic Surgery team where he underwent, inter alia, suturing of his lacerations and was discharged as an Outpatient the following day. When reviewed the Plaintiff reported being extremely nervous and suffering panic attacks following the attack upon him and was referred for assessment. When reviewed on 1st May 2003 by Doctor [-], the left side of the Plaintiff's face was noted to be extensively scarred with the wounds noted to be red and obvious. In addition some retraction of the skin was noted where the two lacerations meet. In addition a transverse 6cm scar was noted at the junction of the middle and lower one third of the dorsum of the left forearm. Doctor…[–] is of [the] opinion that the Plaintiff suffered significant injuries to the left side of his face and that he will be scarred for life…’.
The alleged attack occurred on 29th August, 2002. By notice of motion of 27th June, 2016, the State parties seek, inter alia, (a) an order pursuant to O.122, r.11 of the Rules of the Superior Courts (1986), as amended, dismissing Mr Sugg's claim for want of prosecution, and (b) an order pursuant to the inherent jurisdiction of the court dismissing Mr Sugg's claim for inordinate and inexcusable delay and/or for want of prosecution.
Mr Sugg, in his first affidavit, gives as good an account as any as to what happened between 2002 and 2013. He avers, inter alia, as follows:
‘5. The within claim arises out of an incident on the 29th August, 2002, in which I was attacked by a number of fellow inmates and slashed about my face, neck and wrist while in the custody and care of the defendants….
6. As a result of the attack I was permanently disfigured.
7. In or about November, 2002, I engaged Mr Tom Murphy of the firm of Thomas J Murphy & Co. Solicitors to act on my behalf in respect of the claim the subject matter of these proceedings.
8. Initially Mr Murphy acted in accordance with my instructions and pursued my claim with due diligence. The following is a chronology of steps taken in the proceedings:-
a) Plenary summons issued on…3rd December, 2002.
b) Notice for particulars dated…7th February, 2003.
c) Appearance 27th February 2003.
d) Statement of claim delivered on…22nd August, 2003.
e) Replies to particulars dated…12th January, 2004.
f) Defence delivered on…25th February, 2004.
g) Affidavit of discovery (on behalf of the defendants) sworn on…9th April, 2005.
h) Notice for further particulars dated 23rd April, 2007.
i) Replies to particulars dated 28th June, 2007.
j) Amended defence delivered on…24th December, 2008.
k) Notice of intention to proceed served on…21st February, 2012.
[Certain further significant events have since occurred that are recounted later below]….
10. In or about September 2009 during a consultation with Mr Murphy at which my father was present I was advised by Mr Murphy that an expert report would be required in relation to the case. However, the cost of such a report was significant and I was not in a position to put my solicitor in funds to obtain the necessary report.
11. I am unemployed and I have significant health problems for which I receive disability benefit. In this regard I have been attending my GP Dr [–]…and the…[–] Unit of…[–] Hospital.
12. I finally managed to put my solicitor in funds to obtain the necessary report at the beginning of 2012. To this end I made a cash payment to my solicitor in the sum of €1,140 on the 23rd January, 2012. This payment was financed by way of a loan taken out by my parents from the credit union.’
The last-quoted averment seems to confirm a couple of points of relevance to the court's considerations as to where the balance of justice lies in the within proceedings, viz. that the court is presented with circumstances of real indigence in which money has had to be borrowed from a credit union by parents so that their son's proceedings might continue; and that there is a strong familial sense that a wrong has been done for which no good remedy has yet been forthcoming, but with every effort being made by people of clearly limited means to try and secure proper relief.
Mr Sugg's affidavit evidence continues as follows:
‘13. On receipt of these funds my solicitor served a notice of intention to proceed with the action.
14. In or around the same time the defendants initiated the correspondence exhibited by Ms Potterton [a solicitor with the State Claims Agency] at exhibit “PP1” of her Affidavit in which the defendants invited me to withdraw my claim.
15. In a letter to Ms Potterton dated the 30th of March 2012 Mr Murphy stated that he had advised me to accept the State Claims Agency's offer to discontinue legal proceedings.
16. The first time I had sight of this letter was when I read Ms Potteron's Affidavit. I was never consulted nor did I approve the contents of the letter. At no time did I instruct Mr Murphy to disclose what I am advised and believe are privileged advices regarding the case. Quite frankly I am shocked that Mr Murphy took it upon himself to make known these advices to the defendant's representatives.
17. Despite having been put in funds Mr Murphy never obtained the necessary expert report and subsequently returned the monies to me.
18. Mr Murphy died in August, 2012.
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