William O'Reilly v The National Document Management Group Ltd and Deloitte

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 26 January 2022
• Neutral Citation: [2022] IEHC 37
• Court: High Court
• Docket Number: Record no. 2008/5167P

Between

William O'Reilly

Plaintiff

and

The National Document Management Group Limited and Deloitte

Defendants

[2022] IEHC 37

Record no. 2008/5167P

THE HIGH COURT

Personal injuries – Injuries suffered during work duties – Duties carried out for predecessor in title of first defendant – Whether proceedings should be dismissed for want of prosecution

Facts: The appellant claimed that he had been injured whilst moving shredding consoles as part of his work duties for the first defendant’s predecessor in title. He sought damages for the injuries, but the defendants now applied to have the proceedings dismissed for want of prosecution.

Held by Ferriter J that the application would be dismissed. Whilst the Court was persuaded that there had been both inordinate and inexcusable delay, the balance of justice did not favour the dismissal of the plaintiff’s claim. The parties were urged to ensure no further delays occurred. Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459 considered.

Judgement of Mr Justice Cian Ferriter delivered this 26 ^th day of January 2022

Introduction

1 This judgment addresses the defendants' application to have the plaintiff's proceedings dismissed for want of prosecution pursuant to the inherent jurisdiction of the court.

Background

2 In these proceedings, the plaintiff seeks damages for personal injuries in respect of injuries said to arise from an accident while performing work duties for the predecessor in title of the first named defendant (then Shreddit Ltd.).

3 The plaintiff pleads in his personal injuries summons that the accident occurred on 16 August 2005 at the premises of the second-named defendant (“Deloitte”) in Harcourt Street, Dublin while he was moving shredding consoles. The defendants say there is some controversy as to the precise date and location of the alleged incident given that the plaintiff in his pre-action letter of 3 November 2006 and in other documentation claims that the accident happened in June 2005 at a time when the defendants say it could not possibly have taken place on the premises of Deloitte.

Principles

4 The principles applicable to an application such as this such as this are well settled. The test applicable is that enunciated in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, as subsequently developed. Hamilton C.J. in Primor v. Stokes Kennedy Crowley stated as follows (at 475) in relation to the relevant principles:-

‘The principles of law relevant to the consideration of the issues raised on 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 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 judgement 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 substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

  • (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to the defendant's reputation and business.’

5 In the decision of the Court of Appeal in Millerick v. Minister for Finance [2016] IECA 206, Irvine J. (as she then was) summarised the position as follows:-

“17. The principles which apply on an application brought to dismiss proceedings for inordinate and inexcusable delay are fully explored in the written submissions that have been delivered by the parties. The most oft cited decision is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 where guidance is given concerning the proper approach to be adopted by the Court when met with such an application.

18. The Court is obliged to address its mind to three issues. The first is to decide whether, having regard to the nature of the proceedings and all of the relevant circumstances, the plaintiff's delay is to be considered inordinate. If it is not so satisfied the application must fail. If, on the other hand the Court considers the delay inordinate it must then decide whether that delay can be excused. If the delay can be excused, once again the application must fail. Should the Court conclude that the delay is both inordinate and inexcusable it must not dismiss the proceedings, unless it is also satisfied that the balance of justice would favour such an approach.

19. In considering where the balance of justice lies the Court is entitled to have regard to all of the relevant circumstances pertaining to the proceedings including matters such as delay or acquiescence on part of the defendant and the potential prejudice resulting from the delay.”

6 Accordingly, if the court concludes that the delay is both inordinate and inexcusable, it must proceed to consider where the balance of justice lies and in so doing, may take into account a range of factors including the conduct of the parties to the proceedings, the number and complexity of the events and transactions required to be recalled, and any prejudice which the defendants may suffer arising from the plaintiff's culpable delay.

7 I will reference particular aspects of the jurisprudence relied upon by the parties in their submissions later in the judgment.

Chronology

8 The relevant chronology in relation to the proceedings is as follows:

• — 16 August 2005: accident occurred

• — 3 November 2006: initiating letter sent to 1 ^st defendant

• — 24 November 2006: Form A application to PIAB submitted

• — 5 June 2007: PIAB application acknowledged

• — 15 August 2007: PIAB authorisation issued

• — 26 June 2008: personal injuries summons issued

• — 1 October 2008: plaintiff's first affidavit of verification

• — 3 October 2008: appearance entered for the 2 ^nd defendant

• — 3 October 2008: notice for particulars raised by the 2 ^nd defendant

• — 12 January 2009: appearance entered on behalf of 1 ^st defendant

• — 14 January 2009: notice for particulars raised by 1 ^st defendant

• — 12 February 2009: notice of change of solicitor on behalf of 2 ^nd defendant

• — 11 September 2009: replies to 1 ^st defendant's notice for particulars delivered

• — 17 September 2009: letter from defendants' solicitors seeking to arrange joint engineering inspection and letter querying reply re-date plaintiff sought treatment for injuries

• — 24 November 2009: letter from defendants' solicitors repeating request for joint inspection

• — 21 January 2010: letter from defendants' solicitor regarding the plaintiff's failure to attend for medical examination and repeating request for joint inspection

• — 22 March 2010: letter from defendants' solicitors requesting voluntary discovery of plaintiff's pre-and post- accident medical records

• — 22 March 2010: letter from defendants' solicitors noting non-attendance by plaintiff with defendants medical expert

• — 22 March 2010: letter from defendants' solicitors repeating request for joint inspection

• — 18 May 2010: letter from plaintiff's solicitors requesting defence, indicating inspection will not be agreed until defence received

• — 4 November 2010: defence delivered on behalf of both defendants

• — 11 November 2010: letter from plaintiff's solicitors replying to defendants' request for voluntary discovery, offering 3 years pre-accident discovery

• — 18 January 2011: defendants' motion for joint engineering inspection issued

• — 25 January 2011: letter from defendants' solicitor agreeing to 3 years pre-accident discovery and allowing plaintiff 6 weeks to make discovery

• — 10 March 2011: order for joint engineering inspection made by High Court

• — 30 March 2011: letter from the defendants' solicitor offering to dispose of claim in light of discrepancies in plaintiff's pleadings

• — 21 April 2011: letter from defendants' solicitor noting extraordinary delays and seeking date for joint inspection of negotiations

• — 19 May 2011: letter from plaintiff's solicitors seeking date for joint inspection and answering query remedical treatment date in replies to particulars

• — 29 June 2011: plaintiff obtains updated medical report of consultant neurologist

• — 3 September 2011: plaintiff obtains medical report from consultant anaesthetist/pain specialist

• — 22 October 2012: plaintiff's second affidavit of verification amending date of medical treatment and replies to read 18 August 2005

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