Supreme Court dismisses appeal for want of prosecution and refuses fresh evidence motion in personal injury case.

THE SUPREME COURT

[S.C. No. 339 of 1996]

Denham J.

Kearns J.

Macken J.

Michael McGrath

Plaintiff/Appellant

and

Irish Ispat Limited (In Voluntary Liquidation)

Formerly known as Irish Steel Limited

Defendant/Respondent

Judgment delivered on the 10th day of July by Denham J.

1. Two motions were before the court. On behalf of Michael McGrath, the plaintiff/appellant, hereinafter referred to as the plaintiff,

there was a motion to admit further evidence pursuant to O.58, r.8 of the Rules of the Superior Courts, 1986. On behalf of Irish Ispat

Limited (In voluntary liquidation), formerly known as Irish Steel Limited, the defendant/respondent, hereinafter referred to as the

defendant, there was a motion to dismiss the appeal for want of prosecution. I shall consider this latter motion first, but in that

analysis the plaintiff's motion is also relevant. Thereafter I shall address the motion of the plaintiff for liberty to adduce further

evidence.

2. The plaintiff was involved in an accident on 29th July, 1989. He brought a personal injuries action against the defendant. A civil bill

was issued on 4th September, 1991 and it was transferred to the High Court on 25th April, 1993. Notice of Trial was served on 13th

January, 1994. On 14th October 1996 the High Court dismissed the claim of the plaintiff, together with costs against the plaintiff in

the event of an appeal being lodged. That order was perfected on 21st October, 1996.

3. Thus the initial time sequence is that the appeal of the plaintiff is against a judgment of the High Court of 14th October, 1996

(McCracken J.) dismissing the plaintiff's claim, which arose out of an industrial accident on 29th July, 1989. The circumstances were

found to be as follows. On the day of the accident the plaintiff was holding steady a metal rope. The rope had been pulled over a

pulley which was about sixty feet off the ground. Sixty feet of steel rope was hanging from each side of the pulley. The learned trial

judge stated:

"There was at the time this work was being carried out a pulley with two equal lengths of wire, one falling down on each side so

that they were equal in weight. Therefore they should have been in equilibrium and it is accepted really that they could not

move unless there was some outside influence to make them move."

The learned trial judge referred to those lengths of rope as 'Leg A' and 'Leg B'. The learned trial judge drew some inferences of a

technical nature from the evidence given at the trial. On behalf of the plaintiff it was submitted that these inferences were incorrect

and that the conclusion they led to is an injustice to the plaintiff.

It was submitted that the essence of the High Court judgment was:

"The plaintiff's case is effectively that the pressure must come on its loose end, that is the end Mr. Barry was working, jerked

up in the air and as he was holding he jerked up in the air with it but I can find no evidence that that could have happened. As

I have said nobody has given any evidence that anybody was holding the other end of the wire and therefore that anybody

could have put pressure on it and pulled it."

Counsel submitted that on an appeal it would be submitted that the learned trial judge drew an inference that the plaintiff was holding

the rope at Leg B. It was submitted on behalf of the plaintiff that that inference was incorrect, that the plaintiff was holding Leg A.

However, the appeal is not now before the court. What is before the court are the two motions mentioned initially in this judgment.

4. Notice of Appeal

In December 1996 the plaintiff sought leave to extend the time within which to file an appeal to this Court. This was granted and a

notice of appeal was filed on the 17th December, 1996. Books of appeal were lodged by a former solicitor for the plaintiff in December,

1996 but without the transcript and they were returned. Nothing further was lodged.

5. Motion to dismiss for want of prosecution.

5.(i) The defendant seeks an order dismissing the appeal for want of prosecution. The first motion to strike out the appeal for want

of prosecution was issued on the 23rd April, 1999. This first motion was struck out on consent. Shortly before the hearing of that

motion a notice of change of solicitor was served. It was agreed between the parties that the motion would be struck out and the

costs would be reserved.

5. (ii) The second motion seeking to dismiss the plaintiff's appeal for want of prosecution was issued on the 25th February, 2003 and

it was listed before this Court on 7th March, 2003. An agreement was reached between the parties whereby the plaintiff undertook to

lodge all documents necessary for the prosecution of his appeal not later than 31st July, 2003. Upon such undertaking the defendant

consented to adjourn the matter generally with liberty to re-enter. The documentation was not lodged in accordance with the

undertaking.

This motion of 2003 is now once again before the Court.

6. Law

The Court has a duty to protect the reasonable expedition of litigation and has a duty to convey to litigants and their lawyers the

necessity to bring cases to hearing with due expedition. This is well settled law: see Sweeney v. Horans (Tralee) Ltd. [1987] I.L.R.M.

240 at p. 243. The legal principles were summarised by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at p.

475 - 476:

(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 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 a defendant's reputation and business.

7. Duty of the court

While there is a developing jurisprudence on the issue of delay in litigation it is grounded on well established Irish principles. Thus in

O'Domhnaill v. Merrick [1984] I.R. 151 Henchy J. stated:

"While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts

justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case proceed to trial."

Together with our constitutional jurisprudence there is a developing European jurisprudence. Thus in Kobler v. Austria (Case C-

224/01) the European Court of Justice pointed out that a State of the European Union is liable for damages to individuals for breaches

of the Treaty, irrespective of whether the breach which gave rise to the damages was by the legislature, executive or judiciary. It

expressly identified duties and responsibilities of judges in the European Union, which included a responsibility for the time taken in

court proceedings.

The European Court of Human Rights has also addressed the issue of delays in Courts. In Price and Lowe v. The United Kingdom

43185/98 it held that the United Kingdom breached Article 6 of the European Convention on Human Rights, and referred to the

requirement of the State to deal with cases within a reasonable time. If a State lets proceedings continue beyond the 'reasonable

time' prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay.

The Court held that the proceedings in issue were not dealt with within a 'reasonable time' as required by Article 6 of the European

Convention on Human Rights and that it followed that there had been a breach of Article 6 by the United Kingdom. The Court ordered

that State to pay each applicant €1000.

Bearing in mind the national and European jurisprudence, it is now necessary to consider the delay in this case and to determine: (i) if

it was inordinate, (ii) if it was inexcusable, and, (iii) if the court should exercise a discretion in the interests of justice to permit the

appeal to proceed.

8. Inordinate delay

The first issue is whether there was inordinate delay. No matter from what point one calculates the relevant time frame - the

accident in 1989, the issuing of the civil bill in 1991, the High Court decision of 1996, the filing of the appeal in December 1996, there

has been an inordinate delay in these proceedings. I would approach the matter from the issuing of the proceedings in 1991, and I am

quite satisfied that there has been inordinate delay. In fact this was conceded, Michael McGrath, S.C., counsel for the plaintiff, quite

correctly accepted that there had been inordinate delay.

9. Inexcusable

Counsel on behalf of the plaintiff submitted that the delay was, however, excusable. Counsel referred to the plaintiff's medical

difficulties and other matters. I have read all the papers and am aware of the plaintiff's health problems. Specifically, counsel for the

plaintiff advanced the excuse that since 1999 they had been investigating the relationship (if any) between the plaintiff's alleged

heart condition and the accident the subject of the appeal. However, this is not a relevant factor or an excuse as the issue in this

case is one of liability, not damages, and the decision of the High Court was on liability alone. The High Court never advanced to any

issue of damages, having dismissed the plaintiff's claim on liability. Consequently any appeal to this Court could only be on the issue of

liability. Therefore matters relating to injuries, such as the alleged condition of the plaintiff's heart, are not relevant to the processing

of an appeal on liability.

Counsel also referred to the number of changes of solicitor and counsel in 1996 - 1999. However, in all the circumstances this does

not provide an excuse now, as the 2003 motion is under consideration.

Counsel also referred the Court to the motion on behalf of the plaintiff pursuant to O.58, r.8 of the Superior Court Rules seeking leave

for the admission of additional evidence. It appears that considerable effort and time has been taken up with this approach. In his

motion the plaintiff seeks leave to have admitted the evidence on affidavit of: (i) Michael Keating, (ii) Martin Hallahan, (iii) Noel Griffin,

and (iv) Noel Murphy.

The defendant disputes this motion for fresh evidence on a number of grounds. (i) In relation to the additional evidence by affidavit of

Noel Murphy, it was submitted that he had been in contact with the plaintiff's solicitor prior to the trial in 1996 and gave the

information then but that he was not called as a witness. (ii) Noel Griffin confirmed that he was not called as a witness, although he

was available to give evidence at the trial in 1996. (iii) Michael Keating was present in court on the 10th October, 1996 and available

to give evidence, he was in court for every day of the hearing but was not called to give evidence. (iv) There is no affidavit from

Martin Hallahan. It appears that the issue he would cover is that he was not present at the time of the accident.

The proposed evidence of Mr. Keating and Mr. Hallahan would be adduced on the basis that both would apparently contend that they

were not present at the time of the accident. On behalf of the plaintiff it was submitted that this "casts great doubt over the

reliability of the evidence of Mr. Mullane as in his sworn testimony he was of the view that both these men were present". This

evidence would, therefore, be offered to the Court to be taken into account when considering the accuracy and value of the

evidence tendered by Mr. Mullane.

However, I am satisfied that the issue as to whether or not Mr. Keating or Mr. Hallahan were present is not relevant in any material

sense. Also, it should be noted that, when Mr. Mullane was asked whether Mr. Keating or Mr. Hallahan were present, he replied "as far

as I know they were". This evidence is not such that it could influence a decision on the trial.

In his affidavit Noel Griffin stated that he is a qualified rigger. He did not witness the accident and was not working with Irish Steel at

the time. He commenced working with Irish Steel in 1993. He claims that the system in use in 1993 was open to criticism, and he

believes that this was the same system that was in place in 1989 when the plaintiff allegedly had his accident. The basis of this belief

appears to be that he consulted with the plaintiff on a number of occasions. He confirms that he was at all times available to give

evidence but was not asked to do so. However, the real issue in this case was not whether the system was a safe system of work in

terms of safety of employees, but rather whether the accident could have happened in the manner described by the plaintiff. In that

regard, the trial judge was in no doubt that the plaintiff's version of events was incredible and the claim was dismissed on that basis.

Consequently, this proposed evidence is of little relevance to the issue before the court.

Insofar as Noel Murphy is concerned, he stated in his affidavit that he apparently saw the plaintiff being pulled up into the air by the

rope for approximately fifteen feet. He stated that he was in contact with the James Sheridan, the plaintiff's solicitor, prior to the trial

in 1996 and gave all of this information to his solicitor but that he was never called as a witness to court. This proposed evidence

does not meet the first leg of the test to be applied: see Murphy v. The Minister for Defence [1991] 2 I.R. 161 at p. 164. Also it is

significant that Mr. Murphy stated:-

"I witnessed the rope pulling him up in the air approximately fifteen feet. It was a steel rope and would have burnt his hands

and arms. I witnessed him letting go the rope and falling to the ground".

There was no evidence at any stage in the proceedings that the plaintiff suffered any such burns to his hands and arms.

I am satisfied that the delay is not excusable.

First, an appeal from a judgment on liability simply requires documents relating to that appeal to be filed. This has not been done.

Secondly, the appeal, on the issue of liability, relates to a finding of fact by the High Court. This Court has limited jurisdiction in

relation to findings of fact by the trial court: see Hay v. O'Grady [1992] 1 I.R. 210. Consequently, the plaintiff would be undertaking a

heavy burden on any such appeal and the delay does not relate to that burden.

Thirdly, the additional evidence sought to be admitted by the plaintiff, does not appear to assist the plaintiff. The proposed evidence

of two witnesses is that they were not present at the accident. This evidence is sought to be admitted for the purpose of

undermining another witness's evidence, who had said that they were present, but who qualified it with the words 'as far as I know

they were'. This is not significant in relation to the core issue of liability. The evidence proposed as to the system of work is also not

on point. Noel Griffin's evidence is of little help as he was not at the accident, only joined the defendant years later, and he

addresses the issue of a system of work and not the issue upon which the decision was based.

In ease of the plaintiff I have considered the affidavits at this stage, so that if there were an important relevant factor it could

influence this decision, however, I am satisfied that these affidavits would not assist the Court. They are not of such relevance that

they signal a requirement for court intervention.

Fourthly, even if the evidence in the affidavits was an excuse for delaying the appeal (which I am satisfied they were not), the

affidavits do not support such delay. Most of the deponents were not only in contact with the plaintiff's solicitor prior to the action,

but were in fact in the High Court during the case.

For all these reasons I am satisfied that the delay was not excusable.

10. Discretion

The court has a discretion to consider all the circumstances and to balance the factors and to decide whether it is in the interests of

justice that the appeal be dismissed for want of prosecution, or whether the appeal may proceed. This discretion requires to be

exercised in accordance with well settled constitutional principles and in light of the developing European jurisprudence on reasonable

time as set out previously.

Part of the circumstances of this case is that it is seventeen years since the event in issue, a fact which prima facia raises issues of

fairness of procedures. It is fifteen years since the issue of proceedings. The defendant is in voluntary liquidation, the plant has been

shut down, and the entire work force laid off. However, even without considering the lengthy delays since the accident, or since the

High Court hearing, or since the filing of a notice of appeal, the lengthy delay since this motion was first before the Court and the

undertaken then given, is sufficient to ground a decision. This motion was before the Court in 2003 and determined on consent, on an

undertaking that the plaintiff would lodge the papers by the end of July 2003. That has not been done.

I am satisfied that, in all the circumstances of this case, the motion of the defendant to dismiss the appeal of the plaintiff for want of

prosecution should be allowed.

11. Motion seeking to file further evidence

In light of the above decision there is no need to proceed to determine the plaintiff's motion. However, in view of the plaintiff's

approach to the case I will address the issue.

The issue of fresh evidence is governed by O.58, r.8 of the Rules of the Superior Courts which states:

"The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full

discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court,

by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special

leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date

of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as

to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme

Court (obtained upon application therefore by motion on notice setting forth such special grounds). The Supreme Court shall

have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to

make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme court,

notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also

be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed

from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the

costs of the appeal as may be just."

While the Court has a discretion to receive further evidence on questions of fact this is so only in special circumstances. These were

described by Finlay C.J. in Murphy v. The Minister for Defence [1991] 2 I.R. 161, at p. 164:

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it

could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it

need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need

not be incontrovertible.

I am satisfied that the fresh evidence proposed in this case fails this test. In general the evidence sought to be adduced was in

existence at the time of the trial and it could have been obtained with reasonable diligence. However, even if it had been produced,

or would be produced, in light of all the circumstances, I am not satisfied that "it would probably have an importance influence on the

result of the case." Consequently, for these reasons, and the reasons set out previously in this judgment, if this motion were required

to be determined, I would not have considered that the fresh evidence was relevant to the appeal, or that it would assist the Court,

or that it would have an important influence on the result of the case.

12. Conclusion

For the reasons given, I am satisfied that the motion of the defendant, seeking an order dismissing the appeal of the plaintiff for want

of prosecuting, should be allowed.

As to the motion of the plaintiff seeking to admit further evidence, if it were required to be determined, it does not appear to meet

the required test and I am not satisfied that it would assist the court in all the circumstances of the case, or that it would have an

important influence on the result of the case, and consequently I would refuse such motion.

I have learnt with concern of the plaintiff's general health and his intricate entanglement with these proceedings. The High Court,

while accepting the plaintiff's bona fides, made findings of fact against his claim. Findings of fact by the High Court are the subject of

a special jurisprudence, as described in Hay v. Grady [1992] 1 I.R. 210. In my view the affidavits proposed by the plaintiff as

additional evidence would not have assisted his case, despite the evident hard work carried out on his behalf by his legal advisors.

The law is that findings of fact are made in the court of trial, which in this case was the High Court. Such law would govern this case.

In conclusion, I would order that the appeal of the plaintiff be dismissed for want of prosecution and I would dismiss the motion of the

plaintiff seeking to admit further evidence.