Supreme Court dismisses appeal where plaintiff failed to attend specially fixed court hearing despite prior adjournments.

THE SUPREME COURT

Appeal No: 392/2011

Denham C.J.

O’Donnell J.

Clarke J.

Between/

Martin Horan

Plaintiff/Appellant

and

John O’Dwyer and Evan O’Dwyer practising as Crean O’Cleirigh

and O’Dwyer solicitors

Respondents

Judgment delivered on the 5th day of November, 2013, by Denham C.J.

1. This is an appeal by Martin Horan, the plaintiff/appellant, referred to as “the appellant”, from the order of the High Court (Peart J.)

made and perfected on the 5th October, 2011, where the learned High Court judge ordered that the appellant’s claim be dismissed for

abuse of process.

High Court Judgment

2. The learned High Court judge stated:-

“well, this is a -- well, this is a case that was in the list for hearing yesterday. Before the matter came before me

yesterday morning, an application was made to the President of the High Court to adjourn. This was at the request of

counsel and solicitor who had very recently been instructed by the plaintiff and the application was moved on a couple of

bases, as I understand it, partly on -- on a medical ground, I think, and a medical certificate might have been handed to

the President, but also on the basis of the matter coming to the solicitor and counsel in question at very short notice and

without adequate opportunity to consider the matter and there was a suggestion made that the statement of claim might

actually have to be delivered or it might have to be amended. That application was refused by the President and the

matter was sent up to me. There had been a previous application on the 21st of July 2011, where the plaintiff appeared

in, person and sought an adjournment from the President of the High Court in relation to this same matter and, at that

point, it was due to be heard on the 25th of July and that application was refused as well, and the President of the High

Court, on the 21st of July, directed that the matter proceed on the 25th of July. I’m not aware of what happened on the

25th of July, but one way or another, it seems to have been back in the list yesterday before the President and, as I’ve

said, he refused a further adjournment and yesterday the plaintiff was here with his new solicitor and counsel duly

instructed to appear for him and I was requested for some time, so that instructions could be taken in relation to what

was considered to be a necessary application to amend the statement of claim.

Having heard what counsel said, I took the view that the matter could be, perhaps, dealt with or addressed by the

furnishing of additional particulars of negligence in the form of a letter, rather than a formal amendment to the statement

of claim. That was principally to avoid the perhaps necessary consequential adjournment which the defendant would

require, as opposed to the plaintiff in order to file an amended defence and I indicated that the letter containing

additional particulars of negligence should be prepared and delivered to the defendant’s solicitors by yesterday close of

business. On that basis, it was felt by all, I think, that the matter could proceed today and I indicated that I would hear

the matter today and tomorrow if necessary and this morning I was told by counsel for -- who had yesterday appeared

for the plaintiff that he was thought to be on his way to Dublin but wasn’t here and – but that the additional particulars

of negligence had not been furnished, as required by my direction yesterday and that some difficulties appeared to have

arisen between the plaintiff and his newly instructed legal team, such that the newly instructed legal team felt that they

could no longer continue to act for him, that there was a conflict of interest and I may have been informed that certain

advices were not being taken by him which had been urged upon him.

Because the plaintiff was thought to be en route from Mayo, I think, to Dublin at the time all of that was said to me, I

suggested that the matter be put back to 2 pm today so that that position could clarify and, at 2 pm today, I am

informed by counsel for the plaintiff that he is not en route and is not expected to be here and the – that legal team,

solicitor wishes to now come off record. It has been clarified that a notice of change of solicitor – was filed and that was

on the basis that another solicitor, Mr Looney, was not in fact on record which now appears to be the case, that he was

on record in a formal way at least. So, the plaintiffs—although the plaintiff is not here, his case is listed for hearing from

yesterday and in the circumstances that I’ve outlined listed again today.

Mr McGettigan for the defendants, quite reasonably, is outraged by all of this and the inconvenience and difficulties which

this poses for the defendants and he seeks a dismissal in all the circumstances and I think that is a perfectly reasonable

application. I know there is a background of difficulty in relation to the relationship between this plaintiff and the

defendants arising from the loss of a Supreme Court appeal in previous proceedings. That is the basis on which claims of

negligence are made. I don’t regard those proceedings, the commencement of those proceedings as an abuse of process.

Clearly, the plaintiff has an entitlement to bring a claim alleging such professional negligence but there is a concomitant

obligation on him to pursue those proceedings with diligence and, in my view, the sequence of events, especially from the

summer to now makes it abundantly clear that while the commencement of those proceedings and their pursuit up to this

point in time was not in itself an abuse of the processes of the Court, I am satisfied that to allow the proceedings to

continue by adjourning them yet again to facilitate the plaintiff would amount to an abuse by the plaintiff of the

processes of the Court and would perpetrate an injustice to the defendants.

The plaintiff has given no explanation for his non-appearance today in court and I take that into account in regarding his

behaviour as constituting an abuse of the processes of the Court and an attempt to frustrate the ultimate hearing of this

case and that is an unfairness to the defendants which I am not prepared to permit to continue. So, I will dismiss the

plaintiffs claim and make an order for costs against the plaintiff in favour of the defendants and, if the, plaintiff had been

here, I would have had an opportunity of inquiring from his what his attitude was to the application being made by his

new legal team to come off record prior to my making this order for dismissal. He is not here, and I appreciate that a

solicitor who is representing a party whose case is being dismissed might wish to bring an application to come off record

before that order is made, but I have outlined in this brief statement of my reasons the sequence of events and I’m

completely satisfied that the present legal team should not be in any way prejudiced by the fact that they don’t have an

opportunity prior to this order for dismissal being made to formally serve a notice of motion under order 7, I think it is, or

the relevant rule to come off record. It’s not necessary that the order be made before I make my order for dismissal and

obviously once I have dismissed the proceedings, obviously there’s no opportunity to come off record thereafter, but I

wont say any more about it than that, but perhaps my comments might assist in some way at any later stage, if

necessary, so I make that order to dismiss and costs to the defendants.”

Amended Notice of Appeal

3. The appellant filed a notice of appeal, and then, pursuant to the order of this Court on the 23rd November, 2012, he filed an

amended notice of appeal. The appellant set out twelve specific grounds of appeal.

Submissions

4. Submissions were filed on behalf of the appellant, and the Court received also oral submissions on his behalf.

5. Stephen Byrne, B.L, made eloquent oral submissions on behalf of the appellant, traversed the events in July, 2011 and October,

2011, and argued that the learned High Court judge should have given the appellant one more opportunity to move his case in the

High Court.

6. Submissions were filed on behalf of John O’Dwyer and Evan O’Dwyer, practising under the title and style of Crean O’Cleirigh and

O’Dwyer, the defendants/respondents, referred to as “the respondents”.

7. Counsel for the respondent, Mr McGettigan S.C, submitted that the appellant was seeking to frustrate the administration of justice

and that the Court should dismiss the appeal.

Background

8. There is a history to this case. These proceedings were issued on the 18th September, 2009, following earlier proceedings in which

the respondents had acted as solicitors for the appellant. The earlier proceedings were entitled Frank O’Reilly, Michael McHale, John

Joyce, Seamus O’Brien and An Post National Lottery Company, High Court Record No.2001/369P, were reported at Horan –v- O’Reilly &

Ors [2008] IESC 65), and related to a claim by the appellant that he was a member of a syndicate which won the National Lottery

early in 2001, and, as such, was entitled to one fifth of the lottery win. Having won in the High Court, the appellant lost in this Court.

The Court held:-

“In conclusion, the original agreement clearly permitted only those syndicate members to share in winnings who had paid

their contributions. Mr O’Brien did not have authority to vary the agreement. His toleration of the payment by Mr. Horan in

arrear did not have that effect. It could not bind the other members without their agreement. Mr. Horan was not a

member of the syndicate on the 6th January, 2001.”

9. These proceedings are a claim for damages in negligence against the respondents arising from the alleged manner in which they

conducted his case in those proceedings.

10. On the 18th September, 2009, the appellant commenced these proceedings, claiming damages for alleged professional negligence

of the respondents arising from the defence of his appeal in Horan –v- O’Reilly & Ors [2008] IESC 65). The damages sought by the

appellant include (1) loss of one fifth share of lottery jackpot €459,059.17; (2) bill of costs €300,000.00, estimated; (3) loss of

opportunity to invest lottery winnings; unascertained.

11. At the core of the appellant’s claim in this case is an issue as to submissions in the previous case. It is claimed in the statement

of claim as follows:-

“The defendants were crucially negligent in answering submission 3.1 of the appellants submissions which permitted the

Supreme Court to wrongly conclude at paragraph 25 of the judgment that it was common case that the ‘bet’ placed by

the syndicate was £6.00 which represented the contributions of only four syndicate members not including Mr. Horan, the

Plaintiff. In answering this submission in the manner in which they did the Defendants permitted the Supreme Court to

indulge in the fanciful and erroneous notion in the context of this or any lottery syndicate as to the value of the winning

ticket and not to the real issue who were syndicate members at the time the winning ticket was purchased?

By answering the Appellants submission 3.1 in this manner the Defendants were grossly negligent, in opening an issue

which is not dealt with in the High Court judgment and which permitted the Supreme Court to analyse matters as they did

which caused severe loss and damage to the Plaintiff.”

12. The claim is denied by the respondents, and a full defence has been filed.

13. The appellant served notice of trial on the 1st April, 2011, certified the case as ready, attended at the non-jury list on the 18th

May, 2011, and called the case on for trial. The case was assigned a hearing date of the 26th July, 2011.

14. On the 21st July, 2011, at the call-over for cases for hearing on the non-jury list, the appellant sought to adjourn the case from

the hearing date of the 26th July, 2011. The President of the High Court refused the application.

15. The appellant lodged an appeal from the decision of the President. The appellant issued a notice of motion returnable before this

Court in connection with the appeal.

16. On the 26th July, 2011, the appellant did not attend in the High Court for the hearing of the action. A Mr. Looney (not a solicitor

on record for the appellant) and the appellant’s wife attended and sought an adjournment on the basis of a medical certificate

produced to the President of the High Court. The President ordered that a full medical certificate be produced to the Court on the

next occasion.

17. The President adjourned the hearing of the action from the 26th July, 2011, and the case was specially fixed for hearing on the

4th October, 2011.

18. On the 4th October, 2011, the appellant appeared in court. The appellant’s counsel applied for an adjournment of the hearing.

The President of the High Court refused the adjournment as the case had been specially fixed for hearing that day. The case was

sent to Peart J. for hearing.

19. Counsel for the appellant renewed his application for an adjournment to Peart J. The learned High Court judge allowed the

appellant time, as requested, to enable the appellant deliver further particulars and the case was adjourned to the 5th October, 2011.

The learned High Court judge said that instead of amending the statement of claim, the appellant could simply provide additional

particulars by letter. The learned High Court judge said that he would hear the case that week. After an exchange with counsel, it

was arranged that the court would hear the matter “tomorrow”, i.e. the 5th October, 2011.

20. On the 5th October, 2011, when the case was called, counsel for the appellant told Peart J. that the appellant was not in court.

Counsel informed the court that the appellant’s solicitor had telephoned him and that he was on his way from Mayo. Peart J.

adjourned the hearing to 2 p.m. at the request of the appellant’s counsel. At 2 p.m., the appellant was not in court.

21. The High Court judge dismissed the case, in the terms set out above, and the respondents were awarded their costs.

Decision

22. At the core of this case is the appellant’s failure to attend court when the date for the hearing of his case had been specially

fixed. Indeed when the High Court had facilitated him by adjourning the case from the 4th October, 2011, to the 5th October, 2011,

and again to 2 p.m. on the 5th October, 2011.

23. At issue in this appeal is whether the learned High Court judge acted within his jurisdiction in dismissing the appellant’s case in all

the circumstances.

24. The proceedings in issue are those of the appellant and he has carriage of them and issued them and served a notice of trial. The

case was fixed for hearing on the 26th July, 2011. The appellant applied to have that date adjourned, his application was refused, but

ultimately the President of the High Court facilitated him and adjourned the hearing of the action from the 26th July, 2011, and

specially fixed the case for hearing on the 4th October, 2011.

25. The consequence of a date being specially fixed is that the case is set to proceed on that date. It requires exceptional

circumstances for a case listed as specially fixed to be adjourned.

26. However, on the 4th October, 2011, counsel for the appellant sought an adjournment, which was refused by the President of the

High Court. When the case came before Peart J. for hearing on the 4th October, 2011, a further application for adjournment was

sought on behalf of the appellant. To facilitate the appellant, Peart J. adjourned the case to the 5th October, 2011, and made

provision for any additional grounds to be served by letter.

27. The appellant was not in court at 11.00 a.m. on the 5th October, 2011, the Court being informed that he was on his way from

Mayo. The learned High Court judge adjourned the matter until 2 p.m. to facilitate the appellant, who he had been told was travelling

up from Mayo.

28. However, at 2 p.m. the appellant was not in court. The High Court judge then dismissed the appellant’s proceedings; his decision

is set out fully earlier in this judgment.

29. It is clear that the learned High Court judge dismissed the appellant’s proceedings because he had not shown up in court when

the case was specially listed for hearing. Indeed the Court had been very flexible and adjourned the case from the 4th October, 2011

to the 5th October at 11.00 a.m., and then to 2 p.m. on the 5th October, 2011, in ease of the appellant.

It is important to emphasise that this Court is not here concerned with the delay jurisprudence, which applies when it is suggested

that proceedings be dismissed for inordinate and inexcusable delay. Rather, the Court is concerned with a situation where a plaintiff

simply fails to attend to prosecute his case, particularly where the case is specifically fixed.

30. The appellant was given every opportunity on the 4th and 5th October, 2011, to advance his case and yet he had not done so,

nor was any valid reason given for his absence on the 5th October, 2011. While the appellant has suggested that he believed the

case to have been settled on the 4th and that his legal team withdrew on the 5th, there was no reason why he could not have

attended court at the very least at 2 p.m. on the 5th to make whatever application he wished. On the evidence the appellant simply

chose not to attend when he knew his case was due to be heard.

31. In administering justice a judge has to be fair to both sides in litigation. In this case the respondents had been put on notice of

the trial hearing on the 26th July, 2011, and then the specially fixed date of the 4th October, 2011. Furthermore, they then had the

case adjourned to the 5th October, 2011, first to 11.00 a.m. and then to 2.00 p.m. Litigation is costly to all, including the

respondents.

32. In administering justice a judge also has to have due regard to the careful use of expensive court time and the limited resources

of the courts.

33. I am satisfied that, in all the circumstances of the case, the learned trial judge was within his jurisdiction in dismissing the

appellant’s proceedings when he had failed to appear in court at 2 p.m. on the 5th, after the Court had taken steps to facilitate the

appellant.

34. For the reasons given I would dismiss the appeal.