Vincent Kelly (plaintiff) v Declan Doyle & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 396
• Docket Number: 10721 P/1996
• Court: High Court
• Date: 23 November 2010

Kelly v Doyle & Ors

BETWEEN

VINCENT KELLY

PLAINTIFF

AND

DECLAN DOYLE

AND

MINISTER FOR THE ENVIRONMENT IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2010] IEHC 396

10721 P/1996

THE HIGH COURT

PRACTICE AND PROCEDURE

Strike out

Want of prosecution - Delay - Inordinate and inexcusable delay - Personal injuries claim - Fifteen years since accident - Inherent jurisdiction of the court - Balance of justice - Inaction of defendant - Default by both parties - Whether delay inordinate and inexcusable - Whether proceedings should be dismissed - Whether fair adjudication can take place in spite of delay - Rainsfort v Limerick Corporation [1995] 2 ILRM 561; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Stephens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, HC, Clarke J, 28/4/2005); Anglo Irish Beef Processors v Montgomery [2002] 3 IR 510; Rogers v Michelin Tyre plc [2005] IEHC 294, (Unrep, Clarke J, 28/6/2005); Gilroy v Flynn [2005] 1 ILRM 290; Wolfe v Wolfe [2006] IEHC 106, (Unrep, Finlay Geoghegan J, 15/3/2006) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 122, r 11 - Application dismissed (1996/10721P - Charleton J - 23/11/2010) [2010] IEHC 396

Kelly v Doyle

Facts The first defendant applied to have the plaintiff's case against him struck out for inordinate and inexcusable delay. The litigation arose from a collision between a motorcycle and a tractor in 1994 and the plenary summons issued in 1996. The plaintiff was a pillion passenger on the motorcycle being driven by the first named defendant and as a result of the accident he sustained serious injuries, including the loss of his leg. The first defendant was initially convicted of dangerous driving before the District Court but on appeal in 1995 was convicted of careless driving only. The first defendant never filed a defence to the plaintiff's claim despite the plaintiff's motion for judgment in default being struck out and time allowed for late filing. The first defendant maintained that in or around January 2005 it was indicated to him that the case was being withdrawn and allegations were made that the plaintiff later informed the defendant he was not pursuing his claim. In November 2006, the first defendant was involved in a serious road traffic accident resulting in the loss of one of his leg. He suffered reactive depression and was in constant pain. In November 2008 the plaintiff served a notice of intention to proceed. The defendant was later hospitalised in 2009 with severe physical and psychiatric injuries. The defendant also previously discontinued his case against the driver of the tractor involved in the collision.

Held by Charleton J. in dismissing the application: That although there was inordinate and inexcusable delay in this case, that delay was not one-sided. There was default by both parties. However, the ultimate test with a delay of this magnitude was as to whether a fair adjudication could nonetheless take place. The first defendant had since the incident the subject matter of these proceedings suffered a serious injury. However, the clear recording of his instructions at the time of the criminal proceedings and the inferences which the court must make that his solicitors recorded his instructions, made it improbable that a fair adjudication of this matter could not take place. Any memory loss or inability to concentrate was not proved. No costs were awarded arising out of this application due to the fault of both parties in delaying this action.

Reporter: L.O'S.

RSC O.122 r11

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

WOLFE v WOLFE & ORS UNREP FINLAY-GEOGHEGAN 15.3.2006 2006/59/12482 2006 IEHC 106

DELARGY v MIN FOR ENVIRONMENT & ORS UNREP MURPHY 10.8.2005 2006/15/3007 2006 IEHC 267

1 1. Declan Doyle, the first defendant, seeks to have the plaintiff's case against him struck out for inordinate and inexcusable delay. The litigation arises out of a collision between a motorcycle and a tractor over sixteen years ago on 26 ^th July, 1994. Declan Doyle, the first defendant, was riding the motorcycle, whilst Vincent Kelly, the plaintiff, was his pillion passenger. The first defendant was not insured against injuries to other road users. Even if he had been, it was not then compulsory for a motorcyclist to insure in respect of injury to their pillion or side-car passengers. Damages are sought by the plaintiff against the State over this issue; but that is another day's work. I intend to briefly refer to the applicable legal principles; to then set out a chronology of the events relating to this case; and, finally, to make a decision.

Legal Principles

2 2. Delay is recognised in the Rules of the Superior Courts as a factor for striking out a claim, but only to a limited degree. Order 122, r. 11 of the Rules of the Superior Courts provides:-

"…In any cause or matter in which there has no proceeding for two years from the last proceeding had the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just."

3 3. The principles upon which the court proceeds, however, are usually not those set out in the foregoing Rules. Instead, the parties in this case, as in virtually every other case that has been reported, rely upon the inherent jurisdiction of the court to dismiss civil claims because of inordinate and inexcusable delay. The fundamental principles, in that regard, were first set out in 1979 by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 at 567, in the following way:-

1 "Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.

2 Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings.

3 Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case. Delay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion.

4 Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion."

4 4. As to the third principle set out above, even where as it might be possible to weigh more heavily in the balance delay by a party that is legally represented, the relevant cases indicate that defendants who wish to let sleeping dogs lie, as opposed to exercising the procedures available in the Rules, may be excused if they are not legally represented. I will return briefly to this issue.

5 5. There has been some development in the case law since the above decision. In Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Hamilton C.J. at 475 to 476 summarised the relevant principles in the following format:-

"The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:-"

(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that...