Sweeney v Cecil Keating t/a Keating Transport and McDonnell Commercials (Monaghan) Ltd

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 20 February 2019
• Neutral Citation: [2019] IECA 43
• Date: 20 February 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2014/449

BETWEEN/

PAUL SWEENEY

PLAINTIFF/APPELLANT

- AND -

CECIL KEATING TRADING AS CECIL KEATING TRANSPORT

AND

MCDONELL COMMERCIALS (MONAGHAN) LIMITED

DEFENDANTS/RESPONDENTS

[2019] IECA 43

Baker J.

Irvine J.

Baker J.

Kennedy J.

Appeal No. 2014/449

2014/450

THE COURT OF APPEAL

Want of prosecution – Balance of justice – Inordinate and inexcusable delay – Respondents seeking to have the appellant’s proceedings dismissed for want of prosecution – Whether the balance of justice favoured allowing the action proceed to trial notwithstanding the appellant’s inordinate and inexcusable delay in advancing his claim

Facts: The plaintiff/appellant, Mr Sweeney, in his statement of claim, claimed that on 25 January 2001 he informed his employer, the first defendant/respondent, Mr Keating, that the brakes on a lorry provided to him for the purposes of his work were not in proper working order. He claimed that he was told to bring the lorry to the garage of the second defendant/respondent, McDonnell Commercials (Monaghan) Ltd, to have it looked at. It was to be inferred from the statement of claim that, on the same date, the servants or agents of the second defendant inspected the lorry, and then returned it to Mr Sweeney or his employer. Mr Sweeney then claimed that the following day, whilst he was driving the lorry in the course of his employment, the brakes failed when he was rounding a bend at Killydoon, a village in County Cavan. The lorry allegedly collided with a gate pier at the entrance to a farmyard causing Mr Sweeney to allegedly sustain serious injuries to his left foot, ankle, and leg. By orders made on 23 April 2012 following ex tempore rulings of Kearns P on 16 April 2012, Mr Sweeney’s proceedings were dismissed for want of prosecution on foot of motions brought by each of the defendants invoking the court’s inherent jurisdiction and O. 122, r. 11 of the Rules of the Superior Courts. Mr Sweeney appealed to the Court of Appeal against those orders.

Held by Baker J that, on a review of the evidence available to the Court, she was not satisfied that Mr Sweeney had established that the decision of the High Court judge was not in accordance with the prevailing principles or was unjust or unfair such that the orders made should be reversed by the Court in the exercise of its own discretion.

Baker J held that she would dismiss both appeals.

Appeal dismissed.

JUDGMENT of Ms Justice Baker delivered on the 20th day of February, 2019

1 These are two appeals brought by the plaintiff, Paul Sweeney, against orders made on 23 April 2012 following ex tempore rulings of Kearns P. on 16 April 2012 by which Mr Sweeney's proceedings were dismissed for want of prosecution on foot of motions brought by each of the defendants invoking the court's inherent jurisdiction and O. 122, r. 11 of the Rules of the Superior Courts (‘RSC’).

2 The background to the proceedings is that in the year 2001, nineteen years ago, Mr Sweeney was employed by the first named defendant as a lorry driver. At that time, the second defendant was running a commercial garage involved in the maintenance, servicing, and repairs of commercial vehicles.

3 In his statement of claim, Mr Sweeney claims that on 25 January 2001 he informed his employer, the first defendant, that the brakes on a lorry provided to him for the purposes of his work were not in proper working order. He claims that he was told to bring the lorry to the garage of the second named defendant to have it looked at. It is to be inferred from the statement of claim that, on the same date, the servants or agents of the second defendant inspected the lorry, and then returned it to Mr Sweeney or his employer. Mr Sweeney then claims that the following day, whilst he was driving the lorry in the course of his employment, the brakes failed when he was rounding a bend at Killydoon, a village in County Cavan. The lorry allegedly collided with a gate pier at the entrance to a farmyard causing Mr Sweeney to allegedly sustain serious injuries to his left foot, ankle, and leg.

4 Varying chronologies have been relied upon by the parties in their written submissions. The following are the dates most material to this appeal:

26 January 2001: Injuries sustained. Cause of action accrues.

22 December 2003: Plenary summons issues.

23 February 2004: Appearance for second defendant.

9 August 2006: Service of the statement of claim.

21 August 2006: Motion for judgment in default of appearance against first defendant.

25 September 2006: Second defendant serves notice for particulars.

10 January 2007: Appearance for first defendant.

25 May 2010: Letter from Shane Kennedy, plaintiff's now solicitor, to Legal Aid Board enclosing authority from Mr Sweeney requiring the Legal Aid Board to deliver up all files, documentation, correspondence and memoranda concerning his personal injuries claim.

16 June 2010: Letter from Stephanie Coggans of the Law Centre to Mr Kennedy referring to the proceedings and an engagement with the second defendant concerning potential compromise of the proceedings. The letter advised urgency on the part of Mr Kennedy.

29 July 2011: Motion issued by Legal Aid Board to come off record.

9 August 2011: Second defendant's motion to dismiss proceedings issues.

18 August 2011: Mr Kennedy serves notice of change of solicitor.

15 December 2011: First named defendant's motion to dismiss proceedings issues.

23 April 2012: Orders made dismissing Mr Sweeney's claim against both defendants.

14 May 2012: Notice of appeal to the Supreme Court.

5 November 2013: Plaintiff's motion to High Court to obtain recording of proceedings of 16 April 2012.

23 April 2014: Motion brought by second defendant to dismiss Mr Sweeney's appeal for want of prosecution.

16 May 2014: Books of appeal lodged in the Supreme Court.

23 October 2017: Mr. Sweeney issued his application for directions in the Court of Appeal.

Judgment of the High Court

5 In his brief ex tempore rulings of 12 April 2012, Kearns P. expressed himself satisfied that Mr Sweeney had been guilty of inordinate and inexcusable delay in the manner of his approach to his proceedings. It is also to be inferred from his judgment that he was satisfied that the balance of justice warranted the dismissal of the proceedings. It is clear that, in coming to that conclusion, he had regard to the evidence of Mr Kennedy in his replying affidavit of 8 November 2011. Kearns P. was satisfied, as a matter of law, that any difficulties between Mr Sweeney and his solicitors could not be relied upon to justify or excuse the delay that had occurred. Kearns P. considered it likely that the first defendant would be prejudiced in the defence of the action by reason of the death of Cecil Keating, the principal of the firm, and with whom Mr Sweeney apparently had had discussions concerning his accident. This was not, according to the High Court judge, a theoretical risk of unfairness or injustice. He considered it to be real prejudice.

6 Kearns P. mentioned, in his concluding remarks, that Mr Sweeney was not necessarily without a remedy and noting that even ‘an unreasonable or difficult plaintiff’ would be entitled to expect that ‘his lawyers will press something along’ when a possible consequence of the delay had been pointed out in correspondence.

The jurisdiction of the appellate court

7 An appellate court when asked to set aside an order made by a High Court judge in the exercise of his or her discretion in relation to questions of mixed fact and law should do so only if the appellate court considers it necessary in order to avoid a serious injustice being visited upon the appellant.

8 Giving his judgment for the Supreme Court in Lismore Homes Ltd (In Receivership) v. Bank of Ireland Finance Ltd [2013] IESC 6, MacMenamin J. considered the circumstances in which an appellate Court might review an order made by the trial judge in the exercise of such discretion:

‘Although great deference will normally be granted to the views of a trial judge, this Court retains the jurisdiction of exercising its discretion in a different manner in an appropriate case. This is especially so, of course, in the event there are errors detectable in the approach adopted in the High Court. The interests of justice are fundamental.’

9 MacMenamin J.'s dictum was later applied by Irvine J. in the Court of Appeal in Collins v. Minister for Justice, Equality, and Law Reform [2015] IECA 27. She considered that the High Court judge must be accorded a significant margin of appreciation as to the manner in which he or she may exercise discretion on an application such as one to dismiss a claim for inordinate and inexcusable delay. It is not for the appellate court to provide a rehearing of the High Court application and to substitute its discretion for that of the High Court judge. It is, accordingly, for the appellant to demonstrate that the decision made by the High Court judge was not, on the facts of the case, decided in accordance with the prevailing principles or was unjust to the point that it should be set aside on appeal.

Inordinate and inexcusable delay

10 The legal principles which apply to an application to dismiss a claim for want of prosecution or for inordinate and inexcusable delay are well established. The most frequently cited decision is that of Hamilton C.J. in Primor Plc. (Under Administration) v. Stokes Kennedy Crowley [1996] 2 IR 459.

11 It is for the moving party on any application to dismiss proceedings on the grounds of delay to establish that the plaintiff's delay has been both inordinate and inexcusable. The authorities require that the delay not merely be explained but that the explanation be one that excuses the delay. In Millerick v. Minister for Finance [2016] IECA 206, Irvine J. considered that the explanation must be scrutinised, must be supported by evidence, and must ‘legitimately excuse’ the delay in...