Flaw Shanahan, John McCormack and John Stephenson (plaintiffs) v P. J. Carroll & Company Ltd., Wills (Ireland) Ltd., Gallagher (Dublin) Ltd., the Minister for Health, Ireland and the Attorney General (defendants). Practice and procedure - Application to dismiss - Personal injuries action - Claim for damages for smoking related illness - Want of prosecution - Principles to be applied - Prejudice - Whether delay inordinate and inexcusable - Whether proceedings should be dismissed - Inherent jurisdiction of court to dismiss for lapse of time -Whether defendant unable to properly defend proceedings by reason of lapse of time - Whether real and serious risk of unfair trial - Constitution of Ireland 1937 - Rules of the Superior Courts 1986, O. 27 - European Convention on Human Rights, Article 6.
The High Court (before Mr Justice Gilligan); judgment delivered April 24th, 2007.
In applications to dismiss for want of prosecution by reason of inordinate and inexcusable delay in pursuing a claim which resulted in prejudice to the defendant, where the delay was both inordinate and inexcusable, the court has to further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice was in favour or against dismissing the proceedings. Delay on the part of a defendant and a failure to exercise his right to apply at any given time for a dismiss could be an ingredient in the exercise of the court's discretion. When the court considers the prejudice to the defendant caused by the inordinate and inexcusable delay of the plaintiff, it cannot take into account any period prior to the accrual of the cause of action. The question of whether a plaintiff has a strong case or not was relevant to the issue.
In relation to the issue of whether, pursuant to the inherent jurisdiction of the court, the balance of justice was in favour of allowing the case to proceed, periods prior to the accrual of the cause of action were relevant and could be taken into account by the court.
For a court to be asked to determine issues of fact of the nature required by the plaintiff's claim for damages arising from smoking related illnesses, in the absence of many of the persons actually involved in decision making within the defendant organisations, would result in a basic unfairness of procedures, give rise to a real and serious risk of an unfair trial, and fail to provide the defendants with a fair hearing within a reasonable time of the wrongful acts complained of.
The High Court so held in dismissing the second plaintiff's claim on both grounds pleaded.
Richard J J McDonnell, SC, John Rogers, SC, Eoin McGonigal, SC, and Michael Cush, SC, with Aillil O'Reilly, BL, for the plaintiffs; Paul Gallagher, SC, and Brian R Murray, SC, with Paul Coughlan, BL, for the first defendant; Donal O'Donnell, SC, and Maurice Gerard Collins, SC, with Alan Doherty, BL, for the second defendant; Dermot Gleeson, SC, Paul Sreenan SC and David Barniville SC with Douglas Clarke BL for the third defendant; James Connolly SC and Diarmaid McGuinness SC with Eileen Barrington BL for the fourth, fifth and sixth defendants.
Mr Justice Gilligan stated at the outset that the judgment concerned only the second plaintiff who had brought an action, inter alia, for personal injuries due to negligence and other breach of duty, including in respect of the provisions of the Liability for Defective Products Act 1991 caused by the effects of tobacco smoking since he commenced smoking in 1960 aged 12 or 13 years, and a secondary claim related to ongoing damage to his health caused by his addiction to nicotine. The plaintiff claimed that he only became aware in 1999 that he might have a stateable case against the defendants for personal injuries.
A plenary summons was issued on his behalf in January, 2000, and named the first three defendants in the title of proceedings but was not served for eight months. A statement of claim was served on the defendants in December 2003. Appearances were entered within a matter of days by all three defendants to the plenary summons. On September 20th, 2002, the plaintiff issued a motion to join the fourth, fifth and sixth named defendants and to amend the plenary summons. An order was made on February 3rd, 2003, giving liberty to the plaintiff to join the fourth, fifth and sixth named defendants and to amend the plenary summons. The amended plenary summons was not served on the first three defendants until in or about July 18th, 2003. The fourth, fifth and sixth named defendants ("the State defendants") proceeded to enter an appearance to the amended plenary summons and a statement of claim was served on December 5th, 2003. The State defendants raised a notice for particulars in March, 2004, which was replied to in June, 2005.
The defendants brought a motion seeking to have the plaintiff's claim dismissed for want of prosecution on the grounds of inordinate and inexcusable delay in the commencement and prosecution of his claim which had prejudiced their ability to defend the claim, and further or in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the claim by reason of lapse of time and/or pursuant to Article 6 of the European Convention on Human Rights which provides, inter alia, that "in the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time . . . "
The excuses for the delay advanced on behalf of the plaintiff were: (1) the need to collect the plaintiff's lifetime medical records and the motions brought in respect thereof; (2) the streamlining of some 205 similar cases being dealt with by his solicitors; (3) the discontinuance of a number of actions other than the plaintiff's; (4) the collection of evidence and the assembly of expert witnesses; (5) the issue of liability and the joinder of state defendants.
Referring to Primor plc v. Stokes Kennedy Crowley 2 IR 459, which Mr Justice Gilligan described as the locus classicus in relation to applications to dismiss for want of prosecution by reason of inordinate and inexcusable delay in pursuing a claim which resulted in prejudice such that the balance of justice required that the claim be dismissed, Mr Justice Gilligan adopted the criteria set out therein as: (1) inquiry should be made as to whether the delay had been inordinate and even if so, inexcusable. The onus of establishing that delay was both lay upon the party seeking a dismiss; (2) where a delay had been neither inordinate nor inexcusable, there were no real grounds for a dismiss; (3) even where the delay was both inordinate and inexcusable, the court had to further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice was in favour or against dismissing the proceedings. Delay on the part of a defendant and a failure to exercise his right to apply at any given time for a dismiss could be an ingredient in the exercise of the court's discretion; (4) whilst the party acting through a solicitor had to an extent be vicariously liable for the inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay was material in the exercise of the court's discretion; (5) whether the delay gave rise to a substantial risk that it was not possible to have a fair trial or was likely to cause serious prejudice to the defence. He also adopted the adjunct to those criteria of Mrs Justice Finlay Geoghegan in Manning v. Benson & Hedges Ltd 3 IR 556 that, in considering the prejudice caused by delay or the risk of an unfair trial, the court could not take into account any period prior to the date of the accrual of the cause of action, which in this case was in September, 1996, being the date of diagnosis that the plaintiff was suffering from smoking related illness. Relying on those criteria, Mr Justice Gilligan was satisfied that there was inordinate delay in the prosecution of the plaintiff's claim. Reviewing the excuses for the delay proffered on behalf of the plaintiff, Mr Justice Gilligan was also satisfied that the delay was inexcusable in that they were unnecessary ingredients for the preparation of the plenary summons or statement of claim.
Having regard to the passage of time since 1996, Mr Justice Gilligan found there was presumed prejudice on the part of the defendants. Mr Justice Gilligan was also satisfied that the affidavits sworn on behalf of the defendants made out a case of actual prejudice in defending the proceedings since then.
Mr Justice Gilligan did not consider that the question of whether a plaintiff had a strong case or not was relevant because the motion was only concerned with a failure to prosecute based on inordinate and inexcusable delay linked to prejudice. Neither did he consider that there was any delay on the part of the defendants, or that their conduct amounted to acquiescence in respect of the plaintiff's delay.
Notwithstanding the merit in the plaintiff's contention that the issue of causation was not likely to lead to any undue prejudice to the defendants as his medical records were by then fully available and were the essential element in the defence of the action, the court would require viva voce evidence from witnesses which would be unavailable due to the lapse of time to fairly determine the issue of foreseeability.
Even though the claim pursuant to the Liability for Defective products Act 1991 was presented as a fresh or current claim, Mr Justice Gilligan was of the view that the plaintiff could not make out a claim under that Act divorced from the events prior to 1991. Mr Justice Gilligan was satisfied that to ask the defendants to meet the claim 13 years after the date of the accrual of the cause of action ran contrary to the implied constitutional principle of basic fairness of procedures. In those circumstances, Mr Justice Gilligan dismissed the claim on the balance of justice by reason of inordinate and inexcusable delay and for want of prosecution.
Notwithstanding his finding that the delay was inordinate and inexcusable, Mr Justice Gilligan then dealt with the second basis for the application: whether by reason of lapse of time without any reference to culpable delay and pursuant to the inherent jurisdiction of the court the balance of justice was in favour of allowing the case to proceed, the jurisprudence on which emanated from Ó Domhnaill v. Merrick IR 151.
Mr Justice Gilligan said that the jurisprudence established that the fundamental questions which had to be asked were whether, by reason of lapse of time: (1) there was a real and serious risk of an unfair trial; (2) there was a clear and patent unfairness in asking the defendant to defend the action. The crucial distinction between this ground and the former was that in the former a relevant starting date was the date of the accrual of the cause of action whereas in the latter the relevant starting date was 1942, being the earliest reference to certain material alleged to be relevant to the defendant's state of knowledge on the dangers of smoking.
In that respect, Mr Justice Gilligan found it relevant that a significant number of the essential personnel who would have been in a position to deal with the defendants' state of knowledge from the 1940s onwards were no longer available to give evidence. Contrary to the submissions of the plaintiff, Mr Justice Gilligan found that the case was not one which could be determined by an examination of documents only and that the issues raised could only be fairly addressed in viva voce evidence requiring those, now absent, potential witnesses.
Mr Justice Gilligan said that Article 6 of the European Convention was an extra factor to be added into consideration by the court, but subject to the application of existing Irish law and jurisprudence. If a state allowed proceedings continue beyond the reasonable time prescribed by Article 6 of the European Convention without doing anything to advance them, it would be considered responsible for the resultant delay. For a court to be asked to determine issues of fact of the nature required by the claim, in the absence of many of the persons actually involved, would, in his view, result in a basic unfairness of procedures, give rise to a real and serious risk of an unfair trial and fail to provide the defendants with a fair hearing within a reasonable time of the wrongful acts complained of.
In the circumstances, Mr Justice Gilligan said there was also no alternative but to dismiss the claim for want of prosecution by reason of lapse of time simpliciter pursuant to the inherent jurisdiction of the court.
Solicitors: Peter McDonnell and Associates (Dublin) and Beauchamps (Dublin) for the plaintiffs; A & L Goodbody (Dublin) for the first-named defendant; McCann Fitzgerald (Dublin) for the second-named defendant; Arthur Cox (Dublin) for the third defendant; the Chief State Solicitor for the fourth, fifth and sixth named defendants.
Paul Christopher, barrister