Supreme Court dismisses appeal against MIB for procedural delay in challenging plaintiffs' non-compliance with agreement terms.

THE SUPREME COURT

Denham J.

Hardiman J.

Kearns J.

[S.C. No. 429 of 2005]

BETWEEN

EAMON O’FLYNN, MARY O’FLYNN, MARION O’FLYNN

& EAMON O’FLYNN & SONS LIMITED

PLAINTIFFS

AND

PADRAIG BUCKLEY, DAVID WALSH

& THE MOTOR INSURERS BUREAU OF IRELAND

& BY ORDER AIDAN HORAN

DEFENDANTS

JUDGMENT of Mr. Justice Kearns delivered on the 22nd day of January, 2009

This is an application brought by the Motor Insurers Bureau of Ireland (‘the M.I.B.’) to dismiss the plaintiffs’ claim against

the M.I.B. in these proceedings for non-compliance on the part of the plaintiffs with the terms of an agreement in writing

dated 21st December, 1988 made between the Minister for the Environment and the Motor Insurers Bureau of Ireland (‘the

M.I.B. Agreement’). The application which was brought pursuant to Order 19 Rule 28 of the Rules of the Superior Courts

was dismissed by the High Court (Johnson J.) on 7th November, 2005. The matter comes before this Court by way of

appeal from such order.

BACKGROUND

The proceedings arise out of a fatal accident which occurred during the hours of darkness on 7th August, 1999 in which one

Kieran O’Flynn, who was aged nineteen years, died on the public roadway close to his home in Mallow, County Cork. The

first and second named plaintiffs are the parents of the deceased. The third named plaintiff is a sister of the deceased. The

fourth named plaintiff is a company effectively owned by the O’Flynn family which at the time engaged in joinery work and

which employed some nineteen people. It had been hoped that the deceased would make a meaningful contribution to the

growth and development of the firm. However it is alleged that as a result of the death of Kieran O’Flynn the first named

plaintiff lost interest in the business which has since closed down with a total loss of employment for those who worked

there.

In addition to the fatal claim the first three plaintiffs claim damages for nervous shock.

The first and second named defendants are drivers of separate motor vehicles which collided with Mr. O’Flynn on the night

of his death. It is contended that the second named defendant collided with the deceased, who was lying on the roadway,

some time after the first named defendant had come in contact with him. The fourth named defendant, Aidan Horan is the

owner of the vehicle driven by Padraig Buckley, the first named defendant. The driving of Padraig Buckley was not covered

by the particular policy of insurance which the fourth named defendant had in place with Hibernian Insurance. The second

named defendant was insured in respect of his driving on the occasion in question.

In those circumstances the M.I.B. was joined to the proceedings under Clause 2 of the M.I.B. Agreement. The Agreement

imposes or extends, with certain exceptions, the liability of the M.I.B. to compensate victims of road accidents involving

uninsured or stolen vehicles and unidentified or untraced motorists to the full range of compulsory insurance in respect of

injury to person and damage to property under the Road Traffic Act, 1961. Clause 2(2) of the Agreement provides that

M.I.B. may be cited as co-defendants in any proceedings against the owner or user of the vehicle giving rise to the claim

except where the owner and user of the vehicle remains unidentified or untraced. In that latter situation the M.I.B. may be

cited as a sole defendant under clause 2(3) of the Agreement.

The difficulty in the present case arises from the fact that the defence delivered on behalf of the first named defendant

contained the following allegation:-

“18. Further and in addition to the foregoing and without prejudice to the entirety of this defence, this

defendant shall specifically allege that in so far as he was travelling on the public road highway at the

material time and place and in so far as the deceased body was on the said public highway, the said deceased

was, in fact, dead prior to the arrival of this defendant and/or his motor vehicle to the scene of the accident

the subject matter of these proceedings and the said death of the deceased was not in whole or in part caused

by the matters complained of by the plaintiffs as against this said defendant, it, in fact, having been caused by

either the negligence or breach of duty of another person or an untraced motorist or alternatively some other

misadventure of which this defendant is not aware.”

From the filing of this defence, it became apparent that there were a number of possibilities which would explain the death

of the said Kieran O’Flynn on the night in question. These would include:-

(a) Kieran O’Flynn died at the location in question for some reason unconnected with the driving of any motor vehicle and

was struck thereafter by a number of vehicles who passed on the roadway. This possibility in reality only arises because the

Defence as filed puts the plaintiffs on full proof of everything alleged in the Statement of Claim

(b) Kieran O’Flynn was first struck, injured or killed by a vehicle driven by a person other than the first or second named

defendant – that is to say, an unidentified and untraced driver.

(c) Kieran O’Flynn was struck, injured and/or killed by the vehicle driven by the first named defendant.

(d) Kieran O’Flynn was struck and injured by the vehicle driven by the first named defendant and was further struck,

injured and killed by the vehicle driven by the second named defendant.

In these circumstances, the M.I.B. in filing its Defence raised the following preliminary objection:-

“Without prejudice to the matter set out hereafter the third named defendant objects to these proceedings and

pleads that the claim of the plaintiffs herein is misconceived and fails to disclose any cause of action in so far

as it is not in accordance with Clause 2 of the M.I.B. Agreement of 21st December, 1988 and an application

will be made to dismiss these proceedings as against the third named defendant.”

The point of concern to the M.I.B. is simply this. Clause 2(2) of the M.I.B. Agreement provides that the M.I.B. may be

joined as a co-defendant in circumstances where the offending motorist is identified and traced but uninsured. Clause 2(3)

permits the M.I.B. to be sued as a sole defendant where the owner and user of a vehicle, the subject matter of the

proceedings, remains unidentified or untraced. It was argued on behalf of M.I.B. that Clause 2 as a whole does not permit

of both scenarios being litigated in the same proceedings. Mr. Edward Comyn, senior counsel on behalf of the M.I.B.,

argued that the High Court had erred in law in placing an inappropriate burden on the third named defendant in relation to its

responsibilities pursuant to the Agreement when he refused to grant the relief sought in the High Court. Whilst conceding it

was in the nature of a technical point, Mr. Comyn argued that there were sound policy reasons for construing the M.I.B.

Agreement strictly and that such an approach had found favour in various decisions of the courts. The Agreement did not

provide for the sort of hybrid claim that arose in the instant case and the M.I.B. took the view that it was undesirable from

its point of view to be joined or mixed in with a number of insured and uninsured drivers in circumstances where a case was

also being made against an untraced driver. It created a danger that the parameters of the Bureau’s responsibilities under the

Agreement would become blurred and the Agreement had been designed to prevent such a situation. He argued that it

remained open to the plaintiffs to issue fresh proceedings in correct form.

The plaintiffs argued that the third named defendant, because of its conduct and because of delay, was estopped from

making the objection in question. Alternatively it was argued that any difficulty arising could be easily resolved by a

disjoinder of issues.

Because delay is of importance in this case it is necessary to set out the history and sequence of the proceedings in some

detail.

· 12th December, 2000 - Third named defendant advised by way of initiating letter of claims against first and second named

defendants and ‘possible involvement’ of an untraced driver. I say ‘possible involvement’ because in fact there were clearly

identified parties whose vehicles struck the deceased but neither of those drivers can verify that any untraced motorist was

in fact involved

· 28th February, 2001 - Plenary summons issued and served.

· 24th April, 2001 - Third named defendant indicates in correspondence that Hibernian Insurance will be dealing with the

claim on the Bureau’s behalf

· 31st May, 2001 - Statement of Claim delivered.

· 25th January, 2002 - By letter of 25 January, 2002, M.I.B. inform plaintiffs’ solicitors that Hibernian “may have an

interest as Insurer Concerned” and pass papers to Eagle Star as Handling Office. This letter retains the same claim reference

(M00/3723) and is headed “O’Flynn v Untraced”.

· 21st June, 2002 - Replies to particulars delivered.

· 23rd July, 2002 - Defence delivered by first named defendant.

· 12th August, 2002 - Defence delivered by second named defendant.

· 23rd August, 2002 – M.I.B. pass papers to Allianz Ireland PLC, stating in a letter to plaintiffs solicitors that “neither Eagle

Star nor Hibernian could deal with the matter due to a possible conflict of interest on their part”.

· 23rd August, 2002 - Solicitors for third named defendant call on plaintiffs to join owner of vehicle driven by first named

defendant as a co-defendant in the proceedings.

· 23rd September, 2002 - Plaintiffs issue and serve motion to join fourth named defendant.

· 6th December, 2002 - Fourth named defendant joined.

· 27th March, 2003 - Amended plenary summons issued.

· 14th August, 2003 - Letter from plaintiffs’ solicitors to third named defendant threatening motion for judgment in default

of defence.

· 18th August, 2003 - Solicitors for third named defendant seek more time regarding delivery of defence.

· 10th March, 2004 - Solicitors for third named defendant enter appearance on behalf of fourth named defendant. They

then cease to act for third defendant.

· 16th April, 2004 - Barry C. Galvin & Sons, Solicitors, come on record for third named defendant and serve new notice for

particulars thereafter.

· 28th May, 2004 - Replies delivered to notice for particulars.

· June, 2004 - Solicitors for third named defendant raise further particulars and replies are furnished to same.

· 13th December, 2004 - Defence delivered by third named defendant. This Defence raises for the first time the

‘Preliminary Objection’ that the proceedings are improperly constituted.

· 10th January, 2005 - Reply filed to defence delivered by third named defendant.

The foregoing summary sets out the relevant timeframe relied upon by the plaintiffs to argue that there has been gross delay

on the part of the M.I.B. in raising the objection. They contend that the delay arises directly as a result of inaction on the

part of the third defendant. They point out that in the instant case the third named defendant has had its interest represented

by three different insurance companies and two different firms of solicitors. At no time prior to the filing of its defence on

13th December, 2004, some four years after the initiating letter which had indicated the possible involvement of an untraced

motorist (and it is, unlike in other cases, no more than that), did the third named defendant indicate that it had a difficulty

with the form of the proceedings. It was contended on behalf of the plaintiffs that apart from this general delay, all the

conduct of the third named defendant suggested that the M.I.B. fully embraced and were happy with the form of the

proceedings. Significantly, the M.I.B. was not now prepared to give in this Court an undertaking not to plead the Statute of

Limitations if the present proceedings were dropped in whole or in part and reconstituted.

It was submitted on behalf of the plaintiffs that if the third named defendant wished to make an objection to the form of the

proceedings, then the time to do so was either at the outset or when the M.I.B. invoked the provisions of the Agreement to

demand that the plaintiffs join the fourth named defendants. It was argued that, having failed to do so at either time, the

M.I.B. could not now fairly object to the form of the litigation. As matters presently stood, the O’Flynn family was still

waiting to bring a difficult and upsetting piece of litigation to a conclusion over nine years after the death of Kieran O’Flynn.

In this context, Michael Gleeson, senior counsel on behalf of the plaintiffs, argued that the Agreement itself was cognisant of

the need for speed and efficiency in making decisions on an entitlement to compensation from the M.I.B. in so far as the

Agreement provided at Clause 4(3) that:-

“Where a person applies to the M.I.B. of I for compensation and no judgment has been obtained or is

obtainable, M.I.B. of I shall, as soon as is reasonably practicable, give a decision on the application and shall

give reasons for the decision.”

It was thus submitted that the third named defendant was guilty of gross delay and laches in raising or invoking a suggested

entitlement under the Agreement and could not now resile from its tacit acceptance of the form of the proceedings.

Furthermore, the M.I.B. when originally joined to the proceedings had in any event been properly joined as a co-defendant

with an uninsured but identified motorist. In the event that the plaintiffs could not succeed on the delay point, Mr Gleeson

argued that any bona fide concern which the M.I.B. might have as to the form of the proceedings could be met by a

disjoinder of the issues rather than a dismissal of the action or any part thereof.

DECISION

I believe it is possible to decide this case other than by reference to the delay on the part of the defendants in seeking relief.

The case argued on behalf of the MIB relies almost entirely on two unreported cases in the High Court, namely, Devereux

v. Minister for Finance and MIBI (Unreported, High Court, O’Sullivan J., 10th February, 1998) and Kavanagh v. Reilly

and the MIBI (Unreported, High Court, Morris J., 14th October, 1996). Both cases are referred to by Jones in Counsel’s

Note: ‘Citing the M.I.B. of Ireland as a co-defendant’, (1998) 9 (3) B.R. 450.

In the Devereux case, the plaintiff was a passenger in a troop carrier truck owned by the first named defendant. The troop

carrier made a stop to avoid an unidentified and untraced motorist and in the process the plaintiff was thrown forward and

badly injured. The Bureau was sued due to the clear involvement of the unidentified and untraced motorist along with the

Minister for Finance who was responsible for the driver of the troop carrier.

In those circumstances, the High Court (O’Sullivan J.) had no difficulty in reaching the conclusion that he should dismiss the

proceedings on the basis that the same were misconceived and not in accordance with clause 2 of the Agreement. In

delivering judgment he stated:-

“In this case the Bureau must be cited as a sole defendant under Clause 2.3, therefore the proceedings are

misconceived.”

O’Sullivan J. considered counsel’s note of the ex tempore judgment of Morris J. in Kavanagh v. Reilly and M.I.B. This was

another case where the M.I.B. had been joined as a co-defendant in circumstances where there was an identified driver and

an untraced driver. In that case Morris J. stated:-

“I believe that the Bureau is entitled to make complaint in relation to this. The Bureau have no intention of

taking the plaintiff short in its requirement that it be sued as sole defendant, and the claims of the plaintiff

against the Bureau will be dealt with on its merits. At this stage the provisions of the statute will not be raised

as the Bureau considers that it does not arise.

In my view the court should not intervene with the provisions of the Agreement which have been set forth

between the Minister and the Bureau or put an inappropriate burden on the Bureau in relation to its

responsibility under the Agreement. The Agreement has been worked out carefully between the parties and

there is in my view a logic and good business sense behind the provisions of the Agreement. In these

circumstances I believe it is correct and proper that the plaintiff should conform with it and I will therefore

strike out the proceedings but I will make no order as to the costs of this application.”

However, neither of these cases speak to the unusual facts of this case where there is a combination of insured and

uninsured drivers and the possible involvement of an untraced driver. In so far as the plaintiffs claim lay against an

uninsured but identified driver, they were perfectly entitled to join the M.I.B. as a co-defendant in the proceedings under

and by virtue of Clause 2.2 of the Agreement. The difficulty arises because the M.I.B. is also involved in its capacity as a

body responsible to compensate the plaintiff in respect of the driving of an untraced motorist who may also have caused or

contributed to the deceased’s injuries. The M.I.B. is thus involved wearing two different hats. Without going into detail, Mr.

Edward Comyn, senior counsel on behalf of the M.I.B., pointed out that different practical consequences could arise for the

M.I.B. depending on whether it was involved on behalf of an uninsured driver directly or where its involvement arose

through an “insurer concerned” in circumstances where there was a policy (but one which did not cover the particular

driver) or where its only involvement was as the body amenable to an injured plaintiff where the entire responsibility

attached to the untraced driver. He also submitted, I think correctly, that the M.I.B. is entitled to require that litigants respect

the strict conditions laid down in the Agreement as a pre-condition to the recovery of compensation.

Even taking Mr. Comyn’s arguments and submissions at their highest point, they do not seem to me to meet or overcome

the very simple rejoinder offered on behalf of the plaintiffs which is to the effect that the High Court, either prior to trial or

at the trial itself, is entitled as a matter of equity and fairness to direct the disjoinder of the issues complained of by the

appellant pursuant to Order 18, rule 1 of the Rules of the Superior Courts, 1986. That rule provides as follows:-

“Subject to the rules of this Order, the plaintiff may unite in the same action several causes of action; but if it

appears to the court that any such causes of action cannot be conveniently tried or disposed of together the

court may order separate trials of any such causes of action to be had or may make such other order as may be

necessary or expedient for the separate disposal thereof.”

In addition Order 18, rule 8 of the Rules of the Superior Courts provides:-

“Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot

be conveniently disposed of together, may at any time apply to the Court for an order confining the action to

such of the causes of action as may be conveniently disposed of together.”

Having considered all the circumstances, I am satisfied that the interests of justice and all of the legitimate concerns of the

M.I.B. would be met by an order prior to trial providing for the disjoinder of issues under Order 18 of the Rules of the

Superior Courts. In my view it would on the facts of this case be a superfluous requirement verging upon the absurd to

require the plaintiffs to institute a second set of proceedings where the M.I.B. had been validly joined in a particular capacity

in the first instance and where the possible involvement of an untraced motorist had been flagged from the time of the

originating letter notifying the claims to the M.I.B. without any suggestion from M.I.B. that a second set of proceedings

might be necessary. On the face of it there was and is no irregularity in the form and constitution of the proceedings.

I would also accept the arguments put forward on behalf of the plaintiffs that the delay in moving for relief in this case is

such as to disentitle the M.I.B. to the relief sought. As far back as the initiating letter of 12th December, 2000, the plaintiffs’

legal advisors had made it clear that they were seeking to attach blame for the accident not only to two identified drivers,

one of whom was uninsured, but flagged also the possibility (however remote it might have been) that a further unidentified

driver might also have been involved. This may be seen as a prudent ‘belt and braces’ type approach to the proposed

proceedings by the plaintiffs’ advisors. There was thereafter a delay of four years on the part of M.I.B. in moving for the

relief now being sought. During that lengthy period of time, the MIB had its interests represented by three different

insurance companies and two different firms of solicitors and at no time prior to 13th December, 2004 did it indicate that it

had a difficulty with the form of the proceedings. This was the position notwithstanding that the M.I.B. had invoked its

rights under Clause 3(7) of the Agreement in August, 2002 to require the plaintiffs to join the fourth named defendant to the

proceedings. No point was taken at that time that the form of the proceedings was incorrect. It is difficult to understand

how, when sued in 2001 both in respect of insured and uninsured drivers in proceedings which also took into account the

possible involvement of an untraced driver, the MIB could only ask in 2002 that a co-defendant be joined and then leave it

until December 2004 to make the case that they should not be in the proceedings at all because of the reference to the

possible involvement of an untraced driver in the accident. Quite apart from the obvious distress to Mr. O’Flynn’s family

occasioned by the M.I.B.’s failure to raise the point now in issue in timely fashion, the suggestion made during the course of

argument that it was open to the plaintiffs to start fresh but separate proceedings against the M.I.B. in respect of the

untraced driver (the involvement of whom is at best a possibility only) strikes me as wholly unimpressive given that no

undertaking is forthcoming from the M.I.B. not to raise the Statute of Limitations by way of defence in any such further

proceedings.

This Court has made clear in a number of recent cases that delays in procedural matters which may have been tolerable in

previous times may no longer be tolerated. In this context, I refer to decisions delivered by this Court in Gilroy v. Flynn

[2005] 1 I.L.R.M. 290, Stephens v. Flynn Ltd [2008] I.E.S.C. 4 and Desmond v. MGN Ltd [2008] I.E.S.C. 56, all of which

demonstrate an ever increasing reluctance on the part of this Court to condone delays in procedural matters. In truth the

only response to the arguments on delay in this case has been to suggest that the plaintiffs were also guilty of delay, a

contention which, having regard to the nature of the point taken, is one singularly lacking in persuasive weight, not least

because it is a point which could have been taken at the outset, that is to say either before or at the time proceedings were

commenced. I would dismiss the appeal on grounds of delay also.