Sweeney v Horan's Hotel (Tralee) Ltd

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 1836
• Court: Supreme Court
• Date: 01 January 1987

1986 WJSC-SC 1836

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

234/86

SWEENEY v. HORAN'S (TRALEE)

ANGELA SWEENEY

Plaintiff

and

HORAN'S (TRALEE) LIMITED

Defendants

Synopsis:

DELAY

Trial

Civil action - Due expedition - Prejudice to defendant - Balance of justice - Action instituted on 10/4/76 in respect of cause of action arising on 19/8/73 - Defendants" motion for order dismissing action for want of prosecution - Motion granted by High Court on 29/7/86 - Plaintiff's appeal allowed on 17/12/86 - ~See~ Practice, action - (234/86 - Supreme Court - 17/12/86)

|Sweeney v. Horan's (Tralee) Ltd.|

EVIDENCE

Estoppel

Argument - Submissions - Change - Two motions - Dismissal of applicant's first motion - Subsequently applicant brought second motion seeking same relief - At hearing of second motion applicant made a submission which he did not make, but might have made, at the hearing of his first motion - Held that the applicant was not estopped from making the new submission - Motions for dismissal of action for want of prosecution - (234/86 - Supreme Court - 17/12/86)

|Sweeney v. Horan's (Tralee) Ltd.|

PRACTICE

Action

Dismissal - Want of prosecution - Due expedition - Balance of justice - Defendant alleged that defence prejudiced - Plaintiff's husband killed in an accident on 19/8/73 - Plaintiff claimed that death caused by negligence of defendants - Plaintiff claimed, on behalf of herself and other dependants of deceased, damages from defendants in an action instituted on 10/4/76 - Statement of claim delivered in January and defence delivered in July, 1977 - In 1981 and 1984 plaintiff served notices of intentions to proceed - On 12/11/84 the High Court refused to grant the defendants" application for an order dismissing the plaintiff's action for want of prosecution, and that refusal was affirmed by the Supreme Court on 13/12/85 - On 2/1/86 plaintiff's solicitor stated that notice of trial was about to be served and he sought the defendants" consent to the trial of the action in Limerick - On 29/7/86 the High Court granted defendants" second application for an order dismissing the action for want of prosecution on the ground (inter alia) that the defendants" insurance cover at the time of the deceased's accident might not be sufficient to meet a contemporary award for damages - Held, in allowing the plaintiff's appeal from that order, that the defendants were not estopped from relying upon matters which they had not sought to establish at the hearing of their first application - Held that there was no evidence to establish that the defendants" insurance cover might not be sufficient to meet a contemporary award for damages - Held that it had not been established that the defendants would be prejudiced by the action now proceeding to trial - Held that, notwithstanding the absence of prejudice, the balance of justice must be considered and that such balance lay in favour of permitting the action to proceed to trial - (234/86 - Supreme Court - 17/12/86)

|Sweeney v. Horan's (Tralee) Ltd.|

1 JUDGMENT delivered on the 17th day of December 1986 by FINLAY C.J. [NEW. DISS]

2 This is an appeal brought by the Plaintiff against the Order of the High Court dated the 29th day of July 1986 dismissing her action for want of prosecution. The Plaintiff's claim is as the widow of Patrick Sweeney, deceased, for damages pursuant to the Civil Liability Act 1961for herself and for all other dependants of the said deceased in respect of his death on the 19th August 1973. The deceased died on the 19th August 1973 as a result of being electrocuted whilst performing on the stage of the Defendant's premises.

3 The proceedings herein were instituted by a summons issued on the 30th April 1976. The Statement of Claim was delivered in January of 1977 and the Defence of these Defendants was filed in July 1977. Thereafter no further step appears to have been taken by the Plaintiff other than the service of a Notice of Intention to Proceed in 1981 and again in 1984.

4 The Defendant applied to dismiss the action for want of prosecution and his application came before Hamilton J. [as he then was] on the 12th November 1984 and was refused by him.

5 Against that refusal the Defendant appealed and this Court having granted to him liberty to file further Affidavits and having considered the same at an adjourned hearing dismissed the appeal on the 13th December 1985. No reserved judgment was given by the Court on the dismissal of that appeal but the reasons were stated to be that although the Court was satisfied that the delay on the part of the Plaintiff was inordinate it...