Supreme Court allows amendments to personal injuries summons under Order 28.1, rejecting Order 1A as directory only.

THE SUPREME COURT

[Record No. 2014/128]

Murray J.

MacMenamin J.

Laffoy J.

BETWEEN:

FELIX MOOREHOUSE

PLAINTIFF/APPELLANT

AND

THE GOVERNOR OF WHEATFIELD PRISON, THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John Murray dated the 5th day of March, 2015

1. This appeal arises from an order of the High Court refusing the appellant leave to make two amendments to his personal injuries

summons, which would have added further allegations of negligence in his claim for damages against the respondents. The High Court,

at the same time, granted leave to the plaintiff in respect of two other proposed amendments. The claim arises from serious injuries,

involving the amputation of three fingers of his left hand, when he was using a guillotine steel cutter to cut metal, as part of a

training programme in Wheatfield Prison on 27th November, 2008. The full facts and circumstances are set out in the judgment of

MacMenamin J., including the history of these proceedings and the terms of the proposed amendments to the personal injuries

summons.

2. In order to place the issue in context, however, I refer to the terms of the two amendments which are still in issue (with the

amended text underlined):

(a) “7. On or about the 27th day of November, 2008, whilst the plaintiff was an inmate in Wheatfield Prison, in the

County of the City of Dublin, which said prisoner was under the control of the first named defendant, and whilst the

plaintiff was under the influence of a controlled drug, to wit methadone, administered by an agent of the first named

defendant, the plaintiff was participating in a training programme where he was cutting metal with a guillotine steel

cutter, the plaintiff’s left hand became caught in the cutter, in consequence whereof the plaintiff suffered severe

personal injuries, loss and damage and expense.”

(b) “D. Permitting the plaintiff to operate at the machine when they knew or ought to have known that it was unsafe

and dangerous for him so to do, in general terms, and specifically allowing and permitting the plaintiff to operate at the

machine when they knew or ought to have known that he was under the influence of a controlled drug, to wit

methadone.”

3. One of the grounds upon which the High Court refused leave to make the amendments in issue was that the scope of the

discretion given to the court, pursuant to Order 28.1 of the Rules of the Superior Courts 1986, to amend pleadings for the purpose of

determining the real question in controversy between the parties, must be viewed and modified having regard to certain provisions of

the Civil Liability and Courts Act, 2004, and in particular those of Order 1A (S.I. 248/2005) adopted to give effect to those provisions.

The relevant provisions regulate in a special way the nature and content of pleadings in personal injuries actions, as compared with

other causes of action, and provide for affidavits from each party verifying their pleadings. The Act has other wide ranging provisions

specific to personal injuries claims, for example, the consequence of giving misleading or false evidence, but we are not concerned

with these in this case.

4. At the conclusion of the hearing of this appeal, the Court decided to allow the appeal and granted liberty to the plaintiff to make

the two contested amendments to the personal injuries summons. Today the judgments of the Court set out the reasons for that

decision.

5. A primary issue in this appeal is whether the Act of 2004, and Order 1A of the Rules of the Superior Courts, should be interpreted

so that the discretion of the Court to amend pleadings under Order 28.1 is different and more limited in personal injuries actions than

it is for pleadings generally.

6. The appellants being correct, as I explain in this judgment, in their submission that Order 28.1 continues to apply to a personal

injuries summons as it traditionally has in accordance with established principles, then the next question is whether, in all the

circumstances of the case, the application for the two amendments in question should have been allowed by the High Court.

7. I address the interpretative issue in this concurring judgment, and, having decided it in favour of the appellants for the reasons set

out herein, I agree with the judgment of MacMenamin J., and in particular why the two amendments should, in the circumstances, be

allowed for the reasons which he gives.

The Interpretation of Order 28.1 Issue

8. There are two essential elements in the submissions of the respondents as to why the discretion to amend pleadings under Order

28.1 should be applied differently, or not applied at all, to personal injuries summons in contrast to other pleadings. These are:

(a) Certain provisions of the Act of 2004, and Order 1A of the Rules of the Superior Courts, requires that pleadings in

personal injuries actions, in this case the personal injuries summons, must contain complete particulars of a claim and of

each allegation, assertion or plea comprising that claim. In addition, pleadings must be verified by affidavit. This new

pleadings regime means that the scope of the discretion of the court under Order 28, Rule 1, to amend pleadings in a

personal injuries action must be interpreted in a more limited fashion;

(b) In any event, there is a conflict between the provisions of Order 1A and an application of Order 28.1 in accordance

with the “historical” discretion which has been exercised under the latter Order. Order 1A prohibits the application of any

Rule which conflicts with its terms. Accordingly, by reason of the new pleading regime for a personal injuries summons, the

scope of the discretion to be exercised by the courts under Order 28.1 is more limited as regards amendments to such a

summons, in contrast to pleadings in other forms of action.

Relevant Provisions

9. Section 13(1)(a) of the Civil Liability & Courts Act, 2004 provides, as regards pleadings, that they shall:

“In the case of a pleading served by the plaintiff, contain full and detailed particulars of the claim of which the action

consists and of each allegation, assertion or plea comprising that claim”.

Section 14 requires a plaintiff to swear an affidavit verifying the assertions or allegations contained in the personal injuries summons.

Order 28.1

10. Order 28.1 provides

“The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in

such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the

purpose of determining the real questions in controversy between the parties.”

Order 1A

11. Order 1A, Rule 2(2) provides:

“Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision

of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall, in respect of

personal injuries actions, prevail.” (This Rule reflects s.9 of the Act of 2004).

Without prejudice to the generality of that rule the next rule, 2(3), expressly excludes “sub-rule 2, Order 19, rules 1 and 3 and Order

21, rule 6” from applying in personal injuries actions.

12. Order 1A, Rule 4 provides:

“Save where otherwise expressly provided by this Order, the provisions of these Rules which apply to a plenary summons

shall, with appropriate modifications, apply to a personal injuries summons.”

13. Order 1A, Rule 7 is in precisely the same terms, so that existing rules which apply to a statement of claim also apply to a personal

injuries summons, unless otherwise expressly provided by Order 1A itself.

14. Order 1A, Rule 6 provides:

“Where a plaintiff alleges that he was unable, at the time at which a personal injuries summons was issued, to include in

the personal injuries summons any of the information required by this Order to be specified in the personal injuries

summons, he shall include in the personal injuries summons a statement of the reasons why it is claimed that any such

information could not be provided at the time of issue of the summons. The plaintiff shall, at the time the personal

injuries summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the

information required by this Order as was not included in the personal injuries summons.”

Decision

Interpretative Considerations

15. The Civil Liability & Courts Act, 2004 has, as one of its purposes, the laying down of statutory procedures to be followed by a

plaintiff when initiating and bringing before the courts a claim to recover damages for personal injuries as a result of a civil wrong such

as negligence, nuisance or breach of duty, as referred to in s.2(1) of the Act. It also regulates the conduct of proceedings in certain

respects, once initiated.

16. The Act regulates in a far more extensive way than had previously been the case the procedures to be followed, the nature and

contents of the pleadings, as well as requiring that a plaintiff and a defendant verify, by way of affidavit, each allegation, assertion or

plea contained in their respective pleadings.

17. With a view to regulating personal injuries actions in a particularly extensive manner the Act places increased burdens on both a

plaintiff and a defendant in such proceedings, although in practice probably more burdensome on a plaintiff. An Act regulating court

proceedings or the organisation of the courts must obviously, like any other Act, do so in a manner which conforms with the

Constitution and its principles. Accordingly, each Act, having regard to the well established presumption of constitutionality, falls to

be interpreted in the light of such considerations.

18. This is particularly so as regards the constitutional guarantee of judicial independence relative to an Act of the kind invoked in this

case.

19. Although there is obviously no issue in this case concerning the constitutionality of any provision of the Act of 2004 (or the

statutory instrument), I consider that it might be useful to advert, at least in a general way, to the constitutional considerations to

which the courts must have regard when interpreting and applying statutory measures or rules, such as the Act of 2004, regulating

the right of access of a citizen to the courts, and the organisation or manner in which proceeding, once initiated, are conducted.

20. Article 34.1 provides:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this

Constitution, …”

Article 34 entrenches explicitly in the Constitution the rights of citizens to have recourse to an independent branch of government,

the judiciary, for the purpose of the administration of justice and the resolution of justiciable controversies between individuals, or

between individuals and the State. This precept is first acknowledged in Article 6 of the Constitution which provides that “All powers

of government, legislative, executive and judicial … are exercisable only by or on the authority of the organs of State established by

this Constitution.” No organ of State, nor any body, other than the Courts, may exercise, or purport to exercise, the judicial power of

the State.

21. Of course, the Constitution, in Article 6 and Article 36(iii), vests in the Oireachtas the power to legislate, including the power to

regulate such matters as the organisation and business of the courts and their procedures. Each organ of State must respect the

autonomous exercise of powers by the other organs of State in the pursuit of their independent constitutional functions. Such powers

fall to be exercised within the ambit of the Constitution as a whole.

22. A citizen not only has a right of access to the courts, but once he or she has exercised that right a citizen has the distinct

constitutional ‘right to litigate’, which was described by this Court in Tuohy v. Courtney, [1994] 3 I.R. 1, at 45, as:

“… the right to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing

damage or loss as recognised by law”.

The right to litigate thus means that in proceedings already pending before the courts, a party has a personal right to a judicial

process which is fair and independent, administered by the judges who are themselves independent.

The right to litigate was held by this Court to be at least a personal right which attracted the protection of Article 40, Section 3,

Sub-section 1 of the Constitution, whereby:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen.”

23. Manifestly that obligation to “defend and vindicate” applies to the personal right of a party to due process before courts which

are independent in the adjudication and management of legal proceedings.

24. In Curtin v. Dail Eireann [2006] 2 I.R. 556, at 617, in delivering the judgment of the Court, having referred to Articles 6, 34 and 35

of the Constitution, I stated:

“By these important provisions, the Constitution declares unambiguously the principle that courts and judges are

independent of both the government and the legislature. … The principle of judicial independence … is a principle

designed to guarantee the right of the people themselves from whom, as Article 6 proclaims, all powers of government

are derived, to have justice administered in total independence, free from all suspicion of interference, pressure or

contamination of any kind.”

25. In an essay in Law and Government (Tribute to Rory Brady, Round Hall, Thompson Reuters, 2014) Brian Murray, S.C. opined that:

“Judicial independence is undermined not only by proof of the actuality of external influence, but by legislative structures

which create the potential for, and thus perception of such influence.”

To borrow a phrase from European Union Law, a statute or regulation which ‘actually or potentially’ undermines the independence of

the courts, not only in determining judicial proceedings, but in the management of the courts business, or judicial affairs generally,

would fall foul of the constitutional guarantee of such independence.

26. In Brady v. Donegal County Council [1989] ILRM 282 Costello J. found a limitation period in the planning and development code to

be unconstitutional. That decision concerned a statutory provision which provided for a 2 month time limit for proceedings challenging

planning decisions with no possibility of extension in exceptional cases or in the interests of justice, and Costello J. found that such a

limitation was a “… serious restriction on the exercise of the plaintiff's constitutional rights … [which] cannot reasonably be justified.

Unmodified, the sub-section is unreasonable; being unreasonable it is unconstitutional, and I will so declare.” This Court cited Costello

J.’s decision with approval in In the Matter of Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2002]

I.R. 360, at 393. In that case the Court acknowledged the plenitude of the functions of the Oireachtas to legislate in the interests of

the common good in matters affecting the bringing of proceedings before the courts. The Court explained:

“However, in exercising that discretion the legislature must not undermine or compromise a substantive right

guaranteed by the Constitution such as the right of access to the courts.”

27. Although those two cases, in their particular circumstances, concerned limitation periods imposed on the bringing of proceedings,

the underlying principles apply to statutory provisions generally which regulate the organisation and business of the courts or the

judiciary generally. Thus, the Oireachtas is at liberty to enact such legislation in the pursuit of public policy and the interests of the

common good, but not so as to render the exercise of personal rights under the Constitution, such as rights of access to, and

remedies before, the courts, impossible or excessively difficult, or to do so in a manner which compromises the autonomy and

independence of the courts in the administration of justice.

28. Since every Act of the Oireachtas enjoys a prima facie presumption of constitutionality, the Act of 2004 is to be interpreted, to

the extent reasonably possible, in a manner consistent with the aforementioned constitutional principles and provisions.

The Act of 2004

29. The Rules of Superior Courts, currently extant, were promulgated in 1986. They have been subject to innumerable amendments

since then, of which those engendered by the Act of 2004 are a small but important part. In applying the Rules of Court and in making

procedural rulings generally the courts are necessarily endowed with discretionary powers by reference to particular considerations or

criteria, varying according to the Rule concerned, or the nature of the proceedings. Such rules are frequently no more than

declaratory of discretionary judicial powers inherent to the administration of justice in accordance with the Constitution. Almost

invariably, underlying or as part of the discretionary power is the duty of the court to see that justice is done between the parties.

30. Where a statute, or new rules of court following the enactment of a statute, purport to limit the existing discretion of a court in a

particular situation the measure limiting that discretion should, in my view, be strictly construed. When I say strictly construed I do

not mean rigidly construed. A new provision or rule restricting the scope of a court’s existing discretion may be inferred if that is what

the provision in question intended. But it is not something which should be too readily or too easily inferred.

31. Having regard to the paramount importance of the notion of judicial independence, any intention by the Oireachtas to limit such

judicial discretion by statute must be capable of being clearly discerned from the terms of the new statutory provision (assuming the

limitation is otherwise compatible with the Constitution).

The Primary Interpretative Issue

32. The primary interpretative issue relates to the contention of the respondents is that the “historical” scope of the discretion of the

High Court pursuant to Order 28.1 to amend pleadings has been fundamentally altered in the light of the restructured “regime” for

pleadings in personal injury actions brought about by the Act of 2004 and Order 1A. This “new regime” is intended, it was submitted,

to operate independently of, and in superiority to all existing rules. Reliance was placed on, inter alia, the requirement of Order 1A,

Rule 2(2), according to which “… in the event that any conflict shall arise between the provision of any rule of this Order and any

other provision of these Rules, the provision of the rule of this Order shall, in respect of personal injuries actions, prevail.”

33. Counsel for the respondents is obviously correct in submitting that any conflict between the rules contained in Order 1A and any

other rule of the Superior Courts the former must prevail over the latter. But the obvious point here is that there must be a conflict of

rules.

34. Counsel did acknowledge that Order 1A, Rule 2(3), provides:

“Without prejudice to the generality of sub-rule 2, Order 19, rules 1 and 3 and Order 21, rule 6 shall not apply in personal

injuries actions.”

Those excluded rules, respectively, relate to the delivery of a statement of claim, the contents or formulation of a claim in the

statement of claim, and the presumption that damages claimed are to be treated as in issue in all cases, unless expressly admitted in

a defence. These rules, relating to the form of pleadings in all actions, are expressly excluded from applying to personal injury actions.

Very obviously, there is no express exclusion of Order 28.1.

35. On the other had, Order 1A, Rule 4 and Rule 2, provide that “Save where otherwise expressly provided by this Order, the

provisions of these Rules which apply” respectively to a plenary summons and a statement of claim “shall, where appropriate, and

with appropriate modifications, apply to a personal injuries summons”.

36. Order 28, Rule 1 (quoted above) is applicable to proceedings generally, and since it has not been “otherwise expressly provided”

by Order 1A, it must be considered, at least prima facie, to apply to the pleadings in a personal injuries action, namely, a personal

injuries summons.

37. A personal injuries summons, although governed by special provisions in the Act of 2004, and Order 1A, as regards its form and

content, and particularly the detailed manner in which a claim or defence must be pleaded, nonetheless falls within the general

category of pleadings which initiate a cause of action. Thus, rules governing pleadings generally, unless expressly excluded, are

intended to apply to a personal injury summons. In my view, there is no suggestion in the Act or Order that any such rule should be

deprived of its essential effect, and any modified application of a rule must relate only to the form and content of a personal injury

summons (which would include amendments) taking into account also that the content must be verified by affidavit. Thus, an

amendment to the personal injuries summons, allowed pursuant to Order 28.1, could be required to be verified by affidavit.

38. In Krops v. The Irish Forestry Board Limited [1995] 2 I.R. 113, Keane J. interpreted Order 28, Rule 1 from the perspective of

general principles, and concluded:

“… [p]leadings which initiate an action in this court carry with them from the time they are issued or delivered the

potentiality of being amended by the court in the exercise of its general jurisdiction to allow a party to amend his

indorsement or pleadings ‘in such manner and on such terms as may be just’.”

39. That was subject, of course, to the Court, in exercising its discretion, to have regard to whether a party would be unduly

prejudiced by allowing an amendment. Keane J. went on to observe that:

“… the proceedings were always capable of amendment by the court in such manner as might be just and in order to

allow the real question in controversy between the parties to be determined ...”.

40. The whole purpose of the discretion vested in the courts by Order 28, Rule 1, is to allow proceedings to be heard and determined

by reference to the real questions in controversy between the parties, and that amendments to pleadings should be allowed where it

is just in all the circumstances of the case to do so.

41. The fact, as has been argued on behalf of the respondents, that the Act of 2004 and Order 1A specifies a more elaborate and

extensive form of pleadings in personal injuries actions does not to me suggest that the exercise of the discretion vested in the

courts by virtue of Order 28, Rule 1 should be treated as in some way modified as a result. In my view, the discretion of the court

under Order 28.1 should continue to be exercised in accordance with the principles referred to in the Krops case, and those

authorities referred to in the judgment of MacMenamin J.

42. If such a modification of the effect of a legislating Rule, such as Order 28.1 was intended, I would expect it to be expressed

unambiguously.

43. Counsel for the respondents also referred to the terms of Order 1A, Rule 6, which has a specific rule concerning the amendment of

a personal injuries summons. That rule provides:

“Where a plaintiff alleges that he was unable, at the time at which a personal injuries summons was issued, to include in

the personal injuries summons any of the information required by this Order …, he shall include … a statement of the

reasons why it is claimed that any such information could not be provided at the time of issue …. The plaintiff shall, at

the time the personal injuries summons is served or as soon as may be thereafter (whether by amendment or

otherwise) provide such of the information required by this Order as was not included in the personal injuries summons.”

(emphasis added)

44. That Rule, to my mind, is directory and applies specifically to a personal injuries summons in the limited circumstances referred to

in Rule 6. That is to say, it is concerned only with the particular circumstances where a plaintiff is unable, when issuing the summons,

to provide all the information which he or she was otherwise obliged to provide. It then states what a plaintiff must do subsequent to

the issue of a summons in such circumstances. I do not see in that Rule any basis for inferring that it was intended to limit in some

way the application of the discretion of the court under Order 28.1 generally to amend pleadings for the purposes set out in that

Order, namely, of determining the real questions in controversy between the parties.

45. Order 1A.6 and Order 28.1 are separate and distinct rules and have different purposes. Accordingly I am of the view that there is

no basis for concluding that any conflict arises between the provision of Order 28, Rule 1, as traditionally interpreted and applied, and

any provision of Order 1A.

46. Since I have already concluded that Order 1A does not, and was not intended to, modify the application of Order 28.1, the

appellants were correct in submitting that the learned trial judge erred in law in holding that she should exercise her discretion under

that Rule as regards a personal injuries summons in a manner different to how it would be exercised in the case of pleadings other

than such a summons.

47. Accordingly, the appellant’s application for amendment of the two particular amendments concerned falls to be determined under

Order 28, Rule 1, in accordance with established principles. On that question I agree with the judgment of MacMenamin J. The only

“appropriate modification”, in the light of Order 1A, is that the amendments allowed should be verified by affidavit.

48. The reasons stated above, and those set out in the judgment of MacMenamin J., constitute the grounds upon which I concluded

at the hearing of this appeal that an Order be made allowing the two amendments sought.