Tracey v Burton and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 02 May 2023 |
| Neutral Citation | [2023] IECA 106 |
| Docket Number | Record Number: 2023/33 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 106
Noonan J.
Haughton J.
Allen J.
Record Number: 2023/33
High Court Record Number: 2006/2002P
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 2 nd day of May, 2023
. This appeal is brought by the plaintiff from a case management order made by the High Court (MacGrath J.) on the 19 th January 2023 in the course of an ongoing trial.
. The underlying proceedings have an extraordinarily protracted history and arise from events that occurred in 2004 when the defendants terminated a contractual relationship between them and the plaintiff. The proceedings were commenced in 2006 and have already been the subject of a number of judgments of the Superior Courts. It is unnecessary for the purposes of this judgment to outline the progress of these proceedings in detail. They concern a claim for damages by the plaintiff arising out of the alleged breach of contract of the defendants, as a result of which the plaintiff claims he suffered losses including personal injuries of a psychological or psychiatric nature. The defendants dispute the latter claim on the basis that it is one unknown to law. After a lengthy period of time, and extensive case management in the High Court, the trial commenced on the 25 th July 2019 before MacGrath J.
. At the commencement of the trial, the court was informed by the plaintiff that he was awaiting a psychiatric report in support of his claim for damages for personal injuries. The plaintiff had in fact obtained earlier medical evidence in 2005 and 2007 from a general practitioner and psychologist respectively. On 9 th April 2019, in the run up to the trial, the defendants obtained a report from a consultant psychiatrist. At the commencement of the trial on 25 th July 2019, the plaintiff requested an adjournment on the grounds that he had not yet obtained a psychiatric report, stating to the court:
“The procurement of a response to the specialist medical report is in progress. It's in progress.”
. The adjournment application was refused but the judge directed that the trial should proceed in the first instance on the issue of liability, with quantum to be determined subsequently, to facilitate the plaintiff obtaining this medical report and also because the second defendant, Charles O'Connor, was at that time unwell and has since passed away. The Court was told at the outset that the issue of liability would take a limited time, one estimate being one day. That transpired to be extremely optimistic as the evidence on liability was subsequently heard over five days, those being the 26 th, 30 th and 31 st July, 12 th November and 17 th December 2019. At that stage, the hearing of the liability module was unfortunately interrupted as a result initially of availability issues and later of the covid pandemic.
. On the 10 th March 2020, the plaintiff notified the defendants that he intended to call 22 witnesses and the defendants in response indicated that they intended to call 7 witnesses. Before the trial was interrupted the plaintiff had given evidence, as had Mr. O'Connor. The proceedings have since been reconstituted in the name of Mr. O'Connor's personal representative.
. On the 11 th November 2021, the defendants, with the leave of the Court given in May, 2019, issued a motion seeking, inter alia, the following reliefs:
-
(1) An order pursuant to O.36, r.42(3)(II) of the RSC giving directions as to
-
(a) The issues on which the court requires evidence;
-
(b) The nature of the evidence required to enable such issues to be determined;
-
(c) The manner in which such evidence is to be put before the court.
-
-
(2) In addition, or in the alternative, an order pursuant to O.19, r.27 striking out the portion of the action herein which is pleaded in negligence;
-
(3) In addition, or in the alternative, an order pursuant to O.15, r.13 striking out the proceedings as against the first and second defendants.
. The motion came on for hearing before the High Court on the 21 st December 2021 and as appears from the order eventually made on the 19 th January 2023, the matter was heard over two days, being 21 st December 2021 and the 25 th November 2022. It would appear that in the afternoon of the first day of the hearing, the plaintiff sought leave to issue his own motion but claims he was not permitted to do so. The plaintiff's proposed cross motion was, to say the least, unusual in its terms in seeking to dismiss the defendants' motion; to “ dismiss” the report of the defendants' psychiatrist; to “ recuse” the defendants' senior counsel; to split the trial into three parts rather than two and, inter alia, for an order that the trial judge visit the defendants' former offices at 68 Amien Street, Dublin 1, which were no longer in their possession. The draft motion was stated to be filed “ on the basis of a rebuttal of the mid trial notice of motion” of the defendants.
. Following the hearing of the defendants' motion, the judge reserved his judgment and delivered a written judgment on the 19 th January 2023. In it, the judge outlined the background to the proceedings and the defendants' motion. He noted that on the first day of the hearing of the motion, the plaintiff sought liberty to bring his own motion, to which I have referred. The judge noted that in response to the defendants' motion, the reliefs sought in the plaintiff's own motion included orders dismissing the defendants' application and directing that there should be no alteration to the case management orders made at an earlier juncture, before the commencement of the trial.
. The judge also summarised the defendants' submissions with regard to the legal principles applicable to the issues canvassed in their motion. The judge referred to the fact that he had been informed by the plaintiff at the most recent hearing – presumably that on the 25 th November 2022 – that he had not yet managed to arrange a consultation with the psychiatrist for the purpose of obtaining a report and that the reason for the delay was a backlog in obtaining appointments caused by the pandemic.
. The judge commenced the “ Discussion” section of his judgment by setting out the relevant provisions of the RSC including O.36, r.42(2) which provides:
“(2) The trial of proceedings shall, as regards the time available for any step or element, be under the control and management of the trial Judge, and the trial Judge may, from time to time, make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the interests of justice.”
. The judge also set out the provisions of O.36, r.42(3) which provides as follows:
“(3) The trial Judge may:
(a) having regard to the period of time fixed for the trial, and
(b) having considered any materials (including any reports and summaries or statements of the evidence of any witnesses) delivered to him or her in advance of the trial in accordance with any provision of these Rules or any order or direction of the Court, and
(c) having heard the parties,
make such orders and give such directions as are expedient for the efficient conduct of the trial consistently with the requirements of justice which may, without limitation, include:
(I) orders fixing or limiting the amount of time allowed to each party for opening and closing the case (including, subject to...
To continue reading
Request your trial
-
Tracey v Burton and Others
...THE COURT OF APPEAL COSTS RULING of the Court delivered on the 25th day of May, 2023 1 . The principal judgment of the Court ( [2023] IECA 106) dismissed the appeal of the plaintiff. At paragraph 29 of the judgment, the Court expressed the provisional view that as the defendants had been en......