Supreme Court dismisses appeal where appellant's personal inaction caused inordinate delay in prosecuting personal injury claim.

THE SUPREME COURT

[Appeal No. 266/2008]

Denham, C.J.

Murray, J.

Laffoy J.

BETWEEN

PATRICK JOSEPH KILCOYNE

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR DEFENCE, IRELAND

AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

Judgment of Ms. Justice Laffoy delivered on 26th February, 2014

The appeal

1. This is an appeal by the plaintiff/appellant (the Appellant) from an order made on 28th April, 2008 in the High Court by Hedigan J.

on foot of an application by the defendants/respondents (the Respondents) for an order pursuant to the inherent jurisdiction of the

Court dismissing the Appellant’s claim against the Respondents on the grounds of inordinate and inexcusable delay in the prosecution

of the proceedings. It was ordered by Hedigan J. that the action be dismissed for want of prosecution for inordinate and inexcusable

delay and that the Appellant pay the Respondents’ costs of the action including the costs of the motion when taxed and ascertained.

2. The only grounds on which the Appellant has sought to set aside the order of the High Court in the notice of appeal are framed in

general terms: that the High Court Judge erred in law and in fact in holding that the Appellant delayed the prosecution of the action.

Process of the proceedings through the High Court

3. The Appellant, who was born on 15th July, 1963, enlisted in the Defence Forces on 22nd September, 1981 and served until his

discharge on 29th May, 1985. His claim in the High Court proceedings was for damages for what has become colloquially known as

“army deafness”.

4. The High Court proceedings were initiated by a plenary summons which issued on 5th June, 1998. In other words, the proceedings

were issued over thirteen years after the Appellant was discharged from the Defence Forces. At the time the plenary summons was

issued the Appellant was residing in Western Australia. The plenary summons was issued on his behalf by Mullaneys, Solicitors, who

have remained on record for the Appellant at all times.

5. After the issue of the plenary summons the following procedural steps were taken in the proceedings:

(a) On 24th June, 1998 an appearance was entered on behalf of the Respondents by the Chief State Solicitor.

(b) On 23rd July, 1998 Mullaneys delivered a statement of claim on behalf of the Appellant wherein the Appellant sought

damages for personal injuries for hearing loss, damage, inconvenience and expense which it was alleged he had suffered

as a result of the negligence and breach of duty of the Respondents in exposing him to loud noise throughout his service

in the Defence Forces.

(c) A defence was delivered on behalf of the Respondents. The copy of the defence put before this Court suggests that

it was delivered on 15th December, 1998. However, apparently, the defence was delivered following a motion for

judgment in default of defence brought on behalf of the Appellant, which was returnable on 22nd February, 1999.

Therefore, it would appear that the defence was actually delivered sometime in early 1999. Nothing turns on that

uncertainty, because it is clear that no further procedural step was taken in the proceedings from 1999 for seven years

until 2006.

6. While it was pleaded in the defence that the Appellant’s claim was statute-barred by virtue of ss. 2 and 3(1) of the Statute of

Limitations (Amendment) Act 1991, the Appellant had pleaded in the statement of claim that his date of knowledge of his injury was

within the previous three years. On seeking to have the proceedings dismissed, the Respondents did not contend that the Appellant’s

claim was statute-barred. However, on the appeal, counsel for the Respondents properly pointed out that, given the lapse of time

between the alleged cause of his hearing loss and the commencement of his action, it was incumbent on the Appellant to prosecute

his claim with all due expedition.

7. The proceedings were dormant between 1999 and 2006. In 2006 a different firm of solicitors, Byrne Carolan Cunnigham (BCC),

commenced correspondence with the Department of Defence on behalf of the Appellant. By letter dated 12th July, 2006, BCC

furnished to the Department the Appellant’s authority “in respect of his medical records and Army records generally” and requested

the Department to revert. It is interesting to note that the fact that the Appellant had changed his address in Western Australia

since the plenary summons was issued is plain on the face of that letter and that the address shown was still his address in April 2008

when the Respondents’ motion to dismiss was initiated and determined by Hedigan J. The response to the letter of 12th July, 2006,

which sought information in relation to the Appellant, was a letter dated 31st July, 2006 from the State Claims Agency to which body

BCC’s letter had been referred. By letter dated 31st August, 2006, BCC furnished the State Claims Agency with the information which

had been sought. It is clear from the affidavit which grounded the motion to dismiss, the affidavit of Caitriona Kinane, solicitor in the

firm of Corrigan & Corrigan, sworn on 28th March, 2008, that at that stage both BCC and the State Claims Agency were unaware of

the High Court proceedings.

8. When the State Claims Agency became aware of the High Court proceedings, it instructed Corrigan & Corrigan on behalf of the

Respondents, which led to correspondence from Corrigan & Corrigan to BCC, which is before this Court although it was not before the

High Court. By letter dated 14th November, 2006, Corrigan & Corrigan informed BCC that they had been instructed on behalf of the

Respondents and they enclosed “a notice of change of solicitor”. That letter suggests that Corrigan & Corrigan were aware that BCC

were not on record for the Appellant, given that they sought an appropriate notice of change of solicitor. There was no response from

BCC to that letter, nor was there a response to a reminder dated 22nd January, 2007 in which Corrigan & Corrigan reiterated the

request for documentation to confirm that BCC was on record.

9. The next step taken by Corrigan & Corrigan was to contact Mullaneys in early February 2008. Following a telephone conversation

on 7th February, 2008, Corrigan & Corrigan wrote to Mullaneys on 8th February, 2008 enclosing notice of change of solicitors, which

they stated had previously been served on BCC, and which disclosed that they had been appointed solicitors for the Respondents.

Corrigan & Corrigan confirmed that they were instructed to proceed by way of motion to dismiss the Appellant’s claim for want of

prosecution, but that they would stay their hand for two or three weeks, but expected to hear from Mullaneys in the interim. There

was further telephone contact between Corrigan & Corrigan and Trevor Collins of Mullaneys on 11th February, 2008, during which

Corrigan & Corrigan agreed that Mullaneys would be allowed a further month to make contact with the Appellant and to take

instructions, subject to the caveat that, if Mullaneys did not revert within that period, a motion would be brought to dismiss the

claim. Mullaneys did not revert.

10. The notice of motion seeking an order dismissing the proceedings was filed in the High Court on 1st April, 2008 and it was

returnable for 28th April, 2008. The notice of motion, grounding affidavit and exhibits were served on Mullaneys by registered post on

2nd April, 2008. Although BCC were not on record, the motion papers were also served on BCC by registered post on 16th April, 2008,

because of the previous correspondence which had taken place between Corrigan & Corrigan and BCC.

The hearing of the motion to dismiss

11. When the Respondents’ motion to dismiss was first called before Hedigan J. in the common law motion list on 28th April, 2008,

there was no appearance on behalf of the Appellant. Mullaneys, who were contacted by Corrigan & Corrigan, presumably by

telephone, indicated that they had no instructions from the Appellant and that they would not be attending court. When the motion

was called on second calling, the Court was so informed. The motion proceeded. Counsel’s note of the judgment of Hedigan J. records

that, having noted that the motion was to dismiss the Appellant’s claim for want of prosecution on the grounds of inordinate and

inexcusable delay, Hedigan J. continued:

“There is no appearance on behalf of the [Appellant] and I have been told that the [Appellant’s] solicitors have confirmed

that they have no instructions from their client and would not be appearing in court.”

Hedigan J. stated that, on the basis of what was contained in the grounding affidavit, he was satisfied that there had been an

inordinate and inexcusable delay in the prosecution of the proceedings and that the balance of justice required that the action be

dismissed. It is difficult to see how he could have come to any other conclusion on the basis of the evidence before him and what he

had been informed was the attitude of the solicitors on record for the Appellant.

The law

12. The principles to be applied by the Court in determining whether to dismiss proceedings for want of prosecution and their

application have been the subject of much judicial comment over the last three and a half decades. It is suggested in Delany and

McGrath on Civil Procedure in the Superior Courts (3rd Ed.) (at para. 15 – 06) that the starting point in considering the jurisdiction of

the Court is the decision in Rainsford v. Limerick Corporation [1995] 2 ILRM 561. In his judgment, which was delivered on 31st July,

1979, Finlay P. laid down a number of general principles, which have been quoted with approval in numerous subsequent cases and, in

particular, have been approved by the Supreme Court in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (Primor). In outlining

the general principles, Finlay P., having referred to earlier authorities, stated (at p. 567):

“From these decisions it is possible to elucidate certain broad principles which are material to the facts of this case and

which would appear to constitute the legal principles underlying this problem of the dismissal of an action for want of

prosecution or the permitting by the extension of time for pleading of it to continue in this country at present.

(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 courts discretion.”

13. In Primor, the relevant principles of law were summarised as follows by Hamilton C.J. at p. 475:

“(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.”

As recently as October 2012, the Supreme Court stated that the primary relevant law, where the issue is whether proceedings should

be dismissed for want of prosecution, is Primor in Comcast International Holdings Inc. & Ors. v. Minister for Public Enterprise & Ors;

Persona Digital Telephony Ltd. & Ors. v. Minister for Public Enterprise & Ors. [2012] IESC 50. Having quoted those principles, Denham

C.J. stated that they are the principles relevant to appeals before the Court.

14. Before considering whether, as was submitted on behalf of the Appellant, there was neither inordinate nor inexcusable delay in

prosecuting the Appellant’s proceedings or, alternatively, if there is a finding that there was, that the balance of justice lies in favour

of allowing the Appellant to proceed with his claim, it is necessary to consider evidence filed in the Supreme Court on behalf of the

Appellant after the decision of the High Court, being an affidavit of Trevor Collins, a solicitor in Mullaneys, which was sworn on 29th

January, 2009.

Evidence on behalf of Appellant

15. Mr. Collins has averred that Mullaneys received instructions from the Appellant via telephone on 7th January, 1998 to act on his

behalf in the proceedings and that thereafter the Appellant always communicated his instructions via telephone or by post. However,

in or around 1999, despite exhaustive attempts to contact the Appellant via telephone and post, Mullaneys lost contact with him. Mr.

Collins’ understanding at the time of swearing the affidavit was that the Appellant had serious personal difficulties around 1999 arising

from an acrimonious separation from his wife and that he did not receive mail addressed to his family home, which was the address

Mullaneys had.

16. Mr. Collins has averred that Mullaneys received no further communications from solicitors acting on behalf of the Respondents until

the communications in February 2008, which have been outlined earlier. Mullaneys had no understanding or knowledge of the

involvement of BCC until they received the letter of 8th February, 2008. Mr. Collins does not disclose in the affidavit that Mullaneys

initiated any contact with BCC at that stage to obtain an understanding or knowledge of BCC’s involvement.

17. However, Mr. Collins has averred that Mullaneys were informed by letter of 17th April, 2008 from BCC that the Appellant had

personally attended with them in or around July 2006 and that they had taken instructions from him unaware of Mullaneys’

involvement in the proceedings. Mr. Collins has also averred that by letter of 17th April, 2008, BCC wrote to the Appellant at his new

address, which was the address referred to in the letter of 12th July, 2006 from BCC to the Department of Defence, for further

instructions and that they advised him to contact Mullaneys. That, it appears, was the factual situation when the motion to dismiss

was heard on 28th April, 2008. Mr. Collins acknowledged that the motion papers were served on Mullaneys on 2nd April, 2008. He also

referred to the fact that the motion papers were also served on BCC on 16th April, 2008. His explanation for the attitude of Mullaneys

to the hearing on 28th April, 2008 was that they understood that, because BCC had received the most recent instructions, they were

now representing the Appellant. The attitude of Mullaneys on 28th April, 2008 was that, notwithstanding that they were still on

record for the Appellant in the proceedings, they had no instructions from the Appellant.

18. The evidence as to the contact of the Appellant with Mullaneys after the order of the High Court was made on 28th April, 2008 is

anything but clear. Although, presumably, an affidavit could have been procured from a solicitor in BCC exhibiting the letter of 17th

April, 2008 from BCC to the Appellant, no copy of that letter is before the Court. More significantly, there is no evidence as to when

the Appellant got in touch with Mullaneys after having received that letter. Mr. Collins has merely averred that the Appellant

“indicated that when he received [the letter of 17th April, 2008] . . . he was confused and assumed that someone would contact him

to advise the next step”. Mr. Collins has further averred that Mullaneys subsequently wrote to the Appellant at the address provided

by BCC to notify him of the outcome of the application to dismiss, without exhibiting a copy of that letter or indicating precisely when

it was sent to the Appellant. The Appellant subsequently contacted Mullaneys “to advise that he never had any wish for the matters

to end and that due to personal circumstances his life has essentially fallen apart and that on his return to Ireland in 2006 he had

contacted [BCC] under the assumption that matters had never been progressed after he had instructed Mullaneys . . .”. The

Appellant stated that he wished to appeal the order.

19. The Appellant did not swear any affidavit in response either to the application to the High Court or in support of the appeal. The

only evidence before this Court as to his situation is what has been averred to by Mr. Collins, as outlined above.

Inordinate delay?

20. Counsel for the Appellant acknowledged that there was a period of delay in prosecuting the proceedings from early in 1999 to

initiation of the application to dismiss in April 2008. However, he submitted that, as the period of delay had coincided with a period

during which Army deafness cases were being adjourned “en bloc” as a result of –

(a) the publication of the Green Book Hearing Disability Assessment in 1998,

(b) the decision of the Supreme Court in Hanley v. Minister for Defence [1999] 4 I.R. 392, and

(c) the Early Settlement Scheme introduced by the Minister for Defence in 2000 and continued until 2002,

it cannot be regarded as a period of inordinate delay.

21. It is absolutely clear on the evidence that the delay in prosecuting the Appellant’s proceedings from early 1999 onwards was in no

way a consequence of the manner in which the State was addressing the resolution of Army deafness cases at the time. On the

contrary, the delay was wholly attributable to the failure of the Appellant to give instructions to Mullaneys, the firm which had

initiated the proceedings on his instructions, at any time between early 1999 and the order of the High Court dismissing the

proceedings, coupled with the failure of BCC, who were instructed by the Appellant in July 2006 and who were aware of the existence

of the proceedings and the record number, at least from 14th November, 2006, to respond to the correspondence from Corrigan &

Corrigan, on behalf of the Respondents, commencing with the letter of 14th November, 2006, or to communicate with Mullaneys.

22. I am satisfied that, in the circumstances of the case, the Appellant’s delay of almost nine years prior to the order of Hedigan J. in

prosecuting the proceedings was inordinate.

Inexcusable delay?

23. The argument advanced on behalf of the Appellant in support of the proposition that the delay between early 1999 and April 2008

was not inexcusable was that the actions of the Respondents’ solicitors, Corrigan & Corrigan, created confusion which the Court

should regard as excusing the inaction on the part of the Appellant and his solicitors. There are two prongs to that argument. The

first is that the Respondents’ solicitors knew, when the letter of 22nd January, 2007 was sent to BCC, that Mullaneys were on record

for the Appellant and that at that stage they should have also written to Mullaneys in terms similar to the letter to BCC of that date.

If they had done so, it was submitted, not only would Mullaneys have become aware of the involvement of BCC, but they would have

had over a year to make contact with the Appellant and to address the issue of delay prior to the initiation of the motion to dismiss.

The second is that by serving the motion papers in relation to the motion to dismiss on BCC, as well as on Mullaneys, the

Respondents’ solicitors created confusion in relation to the hearing of the motion, in that Mullaneys thought that BCC were

representing the Appellant and would attend, whereas, and there is no evidence on this point, BCC mistakenly believed that Mullaneys

were representing the Appellant. As to what the legal representatives of the Respondents should have done at the hearing of the

motion, it was submitted by counsel for the Appellant that the Court should have been informed about the involvement of the two

firms of solicitors and the Court should have been requested to adjourn the motion so that both firms could be apprised of the

situation.

24. Neither prong of that argument, in my view, constitutes an excuse for the inordinate delay in prosecuting the proceedings. The

reality is that the proceedings were not prosecuted for over six years because the Appellant did not make contact with Mullaneys, for

whatever reason, and when he returned to Ireland in 2006, rather than make contact with Mullaneys, he gave instructions to BCC.

BCC knew of the existence of the proceedings from at least November 2006 and they must have known of Mullaneys’ involvement.

From November 2006 onwards, when it was clear that the proceedings existed and that Mullaneys were on record for the Appellant,

the Respondents’ solicitors were entitled to assume that the matter of representation of the Appellant would be sorted out between

BCC and Mullaneys. I cannot see that any fault attaches to Corrigan & Corrigan in not having sent a copy of the letter of 7th

January, 2007 to Mullaneys. In any event, Corrigan & Corrigan did make direct contact with Mullaneys on 7th February, 2008 and,

when requested to do so, they gave Mullaneys time to address the delay issue. Notwithstanding that, when the motion came on for

hearing almost three months later, it appears that Mullaneys had not made contact with the Appellant. Finally, having regard to the

steps taken by Corrigan & Corrigan to ensure that the Appellant’s legal representatives were before the Court, there is no reasonable

basis on which they could have been expected to request the Court to adjourn the motion. Both firms of solicitors which had been

instructed by the Appellant had been served with the motion papers and were aware that the motion was listed. Notwithstanding

that, no steps were taken by either of them to have the Appellant represented on the hearing of the motion so as to apprise the

Court of his position.

25. Accordingly, I am satisfied that the delay on the part of the Appellant is inexcusable.

Balance of justice

26. Counsel for the Respondents in their submissions made it clear that the Respondents are not contending, for the purposes of the

appeal, that the delay has prejudiced them in their capacity to defend the claim that they negligently exposed the Appellant to

excessive noise from weapon fire, which, in my view, was a fair and appropriate concession to make. However, the Respondents’

position is that the inordinate delay has resulted in at least an inherent prejudice in dealing with the other issues in the action,

although they have not elaborated on the specifics of such prejudice. Counsel for the Respondents also referred the Court to Article 6

of the European Convention on Human Rights and submitted that, where, as here, there has been inordinate and inexcusable delay,

the Court should strike out the proceedings unless there is some good reason shown why the balance of justice is in favour of

allowing the Appellant to proceed. It was submitted that no good reason has been shown.

27. On the issue as to whether the balance of justice lies in favour of allowing the Appellant to proceed with his claim or dismissing it,

counsel for the Appellant generalised in stating that the chance of a major injustice being done to the Appellant, if his claim is

dismissed, is significantly greater than the chance that a major injustice would be done to the Respondents in allowing it to proceed.

However, he did not identify any good reason for the Court allowing the proceedings to proceed other than suggesting that the

peculiar circumstances of this case, in which the solicitors for the Respondents were corresponding with both Mullaneys and BCC,

constitute a good reason. I have already rejected that argument as excusing the inordinate delay in prosecuting the proceedings.

28. As was pointed out by Finlay P. in the fourth principle outlined in Rainsford v. Limerick Corporation, consideration of the extent of

the litigant’s blameworthiness for delay is material in the exercise of the Court’s discretion. In this case, counsel for the Appellant has

attempted to ascribe the cause of the delay to the actions of the solicitors who came on record for the Respondents, Corrigan &

Corrigan, as late as November 2006. That proposition has already been rejected, as have the specific allegations made against

Corrigan & Corrigan.

29. Taking a broader view of the matter, there can be no doubt but that blameworthiness for the delay must be primarily attributable

to the Appellant personally, even if some inactivity on the part of Mullaneys and on the part of BCC has contributed to the delay. In

1998, when the Appellant instructed Mullaneys, the wrongdoing which he alleged against the Respondents had occurred at the latest

thirteen years previously. On the evidence, he instructed Mullaneys to initiate the proceedings in July 1998, which they did. However,

on the evidence, he made no contact with Mullaneys after 1999. Not only that, but, ignoring the fact that he had instructed

Mullaneys to institute proceedings and that, as apparently he had some contact with that firm after the proceedings had been

instituted he must have been aware of the steps taken by Mullaneys, the proceedings existed in 2006, he gave instructions to BCC to

pursue a similar claim for personal injuries on his behalf against the State as the claim in the proceedings, without apprising BCC of the

existing proceedings or of Mullaneys’ involvement.

30. Unfortunately, matters did not improve after BCC were instructed by the Appellant. Even though BCC had been apprised of the

existing proceedings by November 2006, and must have been aware that Mullaneys were on record, despite pressure from the

Respondents’ solicitors, no step whatsoever was taken by them to progress the proceedings. The correspondence from the

Respondents’ solicitors was effectively ignored. Taking an overview of the matter and, in particular, in the absence of evidence to the

contrary, it is reasonable to infer that the Appellant is personally responsible for the continuing delay.

31. The consequence of what is outlined in the preceding paragraph was that, when the motion for dismissal came on for hearing on

the 28th April, 2008, the proceedings had been in existence for approximately ten years and no procedural step to advance the

proceedings had been taken for nine years. Apart from that, the wrongdoing, which it was alleged by the Appellant gave rise to his

claim, had occurred at least twenty three years previously. Having regard to those facts, I consider that it is not necessary to enter

into the discussion outlined in Delany and McGrath (op. cit.) (at paras. 15 – 43 et seq.) on whether the Rainsford/Primor test falls to

be re-assessed in the light of the enactment of the European Convention on Human Rights Act 2003 and the developing jurisprudence

of the European Court of Human Rights. On the factual evidence before this Court, the only reasonable conclusion is that the balance

of justice, which must be considered from the perspective of the entitlement of each side to a hearing and to a conclusion of the

proceedings within a reasonable time, militates against finding on the appeal for the Appellant, who is responsible for the wholly

unreasonable delay in prosecuting the proceedings and bringing finality to them which the Respondents have had to endure.

Order

32. Consequently, I would dismiss the appeal.