Martin v. Moy Contractors Ltd. [1999] IESC 26 (11th February, 1999)

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1. In this case two appeals came before the Supreme Court and were argued on the same day one after the other. The first appeal No. 113 of 1998 was by the plaintiff against an order of the High Court (Morris P.) made on the 30th of March 1998 whereby the plaintiffs claim against the sixth defendant (hereafter

3. The second appeal No. 187 of 1998 was by the eighth defendant (hereafter de Beers) against the refusal by the High Court (Shanley J.) by an order made on the 8th of May 1998 on foot of a motion by De Beers of the 15th of January 1998 to set aside an earlier order of the High Court (Laffoy J.) made on the 10th of November 1997 renewing the plenary summons so as to enable the same to be served on de Beers. I shall deal with the two appeals in the same order as mentioned above namely the plaintiffs appeal against the order obtained by Garlands first and thereafter de Beers appeal against the refusal of their application to set aside the renewal of the plenary summons.

4. The plaintiff claims that he suffered injuries to his left foot on the 11th of August 1988 in an accident which happened in the course of his work. It appears that the plaintiff was employed by the seventh defendant on some form of construction works in premises situate at Shannon County Clare owned by De Beers in respect of which works Garlands were consulting engineers.

5. The plaintiff appears to have consulted his solicitors about April of 1991. They wrote a preliminary letter of claim on the 2nd of July 1991 to Garlands and the other defendants. They issued a plenary summons against the eight

defendants on the 30th July 1991 that is to say some eleven days or so before the statute of limitations would have run against the plaintiffs claim. Service of the plenary summons was effected in January 1992 on Garlands’ solicitors who had undertaken to accept such service and enter an appearance and they duly entered an appearance on the 21st of January 1992. Nothing happened thereafter for over 18 months whereupon Garlands’ solicitors in September 1993 issued a motion to dismiss the plaintiff’s action as against them for want of prosecution by reason of the plaintiffs failure to deliver a statement of claim. By order of the 18th of November 1993 an extension of two weeks was granted to the plaintiff to deliver a statement of claim and on the 25th of November 1993 the statement of claim was delivered to Garlands’ solicitors.

6. The statement of claim was vague. It did not disclose who was the plaintiff’s employer or what were the functions and involvement of the various defendants in connection with the plaintiff and the works. The statement of claim gave particulars of negligence against each defendant. The first seven particulars that is to say subparagraphs (a) to (g) inclusive were identical in relation to each defendant and were as follows:-

8. Not surprisingly Garlands’ solicitors served a notice for particulars on the 17th of January 1994 seeking inter alia information as to the plaintiff’s employers and as to the circumstances of the accident. Once again silence descended. Eventually the plaintiff’s solicitors wrote to Garlands’ solicitors on the 15th September 1997 enclosing a notice of intention to proceed dated the 9th of September 1997 almost four years since their last step in the action namely the delivery of a statement of claim on the 25th of November 1993. On

the 22nd of December 1997 the plaintiff’s solicitors replied to Garlands’ notice for particulars of the 1 7th of January 1994 namely four years less one month after the Notice for Particulars. It then transpired that Mr. Michael Ledwidge a partner in Garlands had died on the 26th of May 1997 almost nine years after the accident the subject matter of these proceedings and almost six years after the commencement of the proceedings.

“(3).... In this statement of claim the particulars of negligence against the defendants are in very general terms and there are no specific allegations of negligence against our firm. In order to clarify the plaintiff’s case against our firm I say that on the 17th of January 1994 a notice for particulars was sent by our solicitors to the solicitors for the plaintiff and a reply thereto was not received until receipt of a letter from the plaintiff’s solicitors dated the 2nd of December 1997. The partner who oversaw and was responsible for the project in question being intimately involved in same was Mr. Michael Ledwidge who died on the 26th day of May 1997 and

I beg to refer to a copy of his Death Certificate upon which marked with the letter A I have endorsed my name prior to the swearing hereof. Thus the person who was vital in relation to answering the two specific allegations of negligence set out in the said reply and preparing our defence thereto was unavailable to us as a result of the delay on the part of the plaintiff

(6) I submit to this honourable court that as a consequence of the delay of nine years on the part of the plaintiff to prosecute his claim in respect of an accident which allegedly took place on the 11th day of August 1988 the plaintiff is guilty of inexcusable and inordinate delay. I say further that such delay has prejudiced the sixth named defendant to the extent that for the reason given herein a fair trial is no longer possible. I further believe and say that the reason for the aforesaid prejudice to the sixth named defendants ability to defend the plaintiff’s proceedings herein is a direct consequence of the failure on the part of the plaintiff to prosecute his cause of action herein with reasonable diligence and expedition.”

12. Nowhere is it denied in this affidavit that Michael Ledwidge died in May 1997 or that he was the partner in Garlands’ dealing with the works in question. Moreover it should be noted that in the preliminary letter of claim of the 2nd of July 1991 Michael Ledwidge is named as the sixth defendant and Garlands are named as the seventh defendant. When it came to draft the proceedings the partnership Garlands was correctly sued as such and it was not necessary to name Michael Ledwidge individually. However, the fact that Michael Ledwidge was individually named in the letter of claim confirmed that he was the member of the partnership in charge of Garlands involvement in the works. In these circumstances it is difficult to understand the basis for paragraph 11 of the plaintiff’s solicitor’s affidavit.

13. As I have said Garlands’ motion to dismiss came before Morris P. on the 30th of March 1998. He delivered an ex tempore judgment and counsel for both parties have agreed a note of a judgment which has been approved by the learned President on the 20th of July 1998. The judgment reads as follows:-

“The judge stated that although there are rare circumstances in which he felt compelled to dismiss a claim for want of prosecution, this was a case in which significant prejudice had been suffered by (Garlands). He stated that there had been significant delay in the prosecution of this case. Firstly, there was the delay prior to the issuing of the writ and he stated that the first letter bringing the accident to the attention of (Garlands) was not until the 2nd of July 1991. Secondly, he stated that the motion to dismiss for want of prosecution in 1993 should have had the effect of bestirring the plaintiff to move the case on. Thirdly, he felt that the delay in replying to the notice for particulars was appalling and inexcusable. The judge then stated that although he may in some cases be able to live with slowness, the fact that this slowness was coupled with a side by side element of prejudice due to the death of Mr. Ledwidge the managing partner who could answer the claim. He felt obliged to strike out the case as a result of the ensuing two if not three elements of gross delay and resulting prejudice.

Counsel for the plaintiff submitted that Garlands were content to let sleeping dogs die so far as the replies to their notice for particulars were concerned and they could not complain of the delay in replying when they had not brought any motion to compel the delivery of reply. He also submitted that there may be other partners or employees of Garlands who could deal with the case in place of Mr. Ledwidge.

Counsel for Garlands submitted that when the plaintiff as in this case delays commencing his proceedings until the Statute of Limitations has almost run there is an added onus on him to prosecute his action expeditiously. In delaying for years he must take the risk that circumstances may give rise to a particular prejudice to one or more defendant as in this case to Garlands by the death of Mr. Ledwidge. In any event the mere passing of over ten years since the accident happened inevitably causes prejudice to all parties in that witnesses are put at a great disadvantage in trying to recollect events so long passed.

Celtic Ceramics Ltd and Others v. The Industrial Development Authority and Kenneth Hunt, High Court 9th September 1992 reported at [1993] ILRM 248 and Supreme Court Unreported 4th February 1993. Sheehan v. Amond [1982] IR 235 and Hogan & Ors v. Jones, Edmonds and G. & T. Crampton Limited [1994] 1 ILRM 512 at p.519

It is manifest from the foregoing summary of the facts that there has been both inordinate and inexcusable delay on the part of the plaintiff in the prosecution of this claim. That being so an inference of prejudice by the mere dimming of the recollection of witnesses on events so long ago must arise. In this case there is added the specific prejudice caused by the death of Mr. Ledwidge on the 26th of May 1997 and this prejudice is challenged only in the most general and unconvincing terms in paragraph 11 of the plaintiff’s solicitors affidavit quoted above.

The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided that the High Court decision is within the limits of reasonable discretion this court should not interfere with it. In this case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally follows from such reasoning

and is also therefore clearly valid. There is, accordingly, no basis on which this court should interfere with the judgment of the learned President save that I would order that the plaintiff’s action against Garlands should be dismissed for want of prosecution and not merely struck out.

One further point was raised by the court. On the 12th of January 1998 a letter was written on behalf of the second, third, fourth and fifth defendants claiming indemnity against Garlands. The court queried whether those defendants should have been served with the motion to dismiss as well as the plaintiff. The plaintiff did not make any submissions in relation to this query. Counsel for Garlands submitted that the Motion to dismiss for want of prosecution was a matter between them and the plaintiff and should not require the incurring of added costs by serving other parties not directly involved.

He also submitted that in any event if the second, third, fourth and/or fifth defendants established any fault against Garlands they would be entitled to avail of that finding as against the plaintiff by way of an appropriate reduction of his damages pursuant to section 35 of the Civil Liability Act 1961. Without deciding the point I believe that that is probably correct and in any event the issue as to whether or not the plaintiff’s action against Garland’s should be dismissed for want of prosecution is primarily a matter between those parties.

I have already set out the date of the accident the 11th of August 1988: the date of the preliminary letter of claim the 2nd of July 1991 and the date of the issue of the plenary summons the 30th of July 1991. Following the issue of the plenary summons de Beers’ insurers the Hibernian Insurance Company Limited nominated Messrs. Corrigan & Corrigan, Solicitors to accept service of the plenary summons and so informed the plaintiff’s solicitors on the 6th of December 1991. Some correspondence passed between the plaintiff’s solicitors and de Beers’ insurers ending with a letter dated the 9th of December 1991 from the plaintiff’s solicitors to the insurers enclosing copies of the plaintiff’s medical reports.

The plenary summons was not served on Corrigan & Corrigan following this correspondence and accordingly no further action was required by de Beers their insurers or their solicitors all of whose files relating to the matter no doubt remained dormant if not eventually becoming dead.

However the plaintiff’s solicitors sent a letter on the 15th of September 1997 to Corrigan & Corrigan enclosing a notice of Intention to Proceed dated the 9th of September 1997. Corrigan & Corrigan could find no file relating to the case and accordingly wrote on the 19th of September 1997 to the plaintiff’s solicitors for information as to the case and who they (Corrigan & Corrigan) represented. As a result of this inquiry the plaintiff’s solicitor discovered that they had never served the plenary summons on de Beers or Corrigan & Corrigan and they sought consent to an extension of time within which to do so. This was almost six years since Corrigan & Corrigan had been nominated to accept service on the 6th December 1991 and over nine years since the date of the accident. The only explanation offered by the plaintiff’s solicitors is that it was a complete oversight on their part contributed to by the multiplicity of defendants, they having served seven defendants and believing that they had served all eight. Not surprisingly no consent to an extension of time or more properly the renewal of the plenary summons was forthcoming.

On the 10th of November 1997 the plaintiff applied ex parte to the High Court for a renewal of the summons pursuant to Order 8 Rule 1 of the Rules of the Superior Courts. That order was granted on that date and on the 15th of January 1998 de Beers solicitors served a motion pursuant to Order 8 Rule 2 to set aside the renewal of the summons and that application was refused on the

De Beers’ application to set aside the order of the High Court renewing the plenary summons was grounded on an affidavit sworn on the 8th of January 1998 by Jean Corrigan of Messrs. Corrigan & Corrigan and a further affidavit sworn on the 26th of January 1998 by Eoin McMahon, Assistant Company Secretary of De Beers in which he says as follows:-

“(3) I say that I know nothing whatsoever other than what I have been recently able to ascertain about the circumstances surrounding this accident and I have discussed the matter with the personnel manager and he in turn knows nothing whatsoever about this accident.”

(5) Further it is clear that any party that may have a knowledge in relation to this matter will be relying upon their memory of what took place nearly ten years ago on the 11th August 1988. In those circumstances I say and believe and have been informed by my legal advisers that it would be inequitable to allow the plaintiff continue his claim against (de Beers) in the circumstances which have been outlined above.

14. Regarding the averrment in paragraph 6 just quoted it is not clear to me that the insurers have destroyed their files: they wrote a letter dated the 21st of November 1997 to Corrigan and Corrigan saying that “the brokers advise that their records have been destroyed”. Nowhere is there any statement by the insurers that they have destroyed their records and that they no longer have in their possession the correspondence between July and December 1991 including the plaintiff’s medical reports which were enclosed with the plaintiff’s solicitor’s letter of the 9th of December 1991.

15. In a replying affidavit sworn on the 7th of May 1998 by the plaintiffs solicitor he first says at paragraphs 7 and 8 that there were great difficulties in serving the various defendants but it appears from these very same paragraphs that all the defendants except the seventh named defendant nominated solicitors to accept service so that it is nonsense to be trying to rely on difficulties in effecting service to excuse the extraordinary delay in relation to serving de Beers. However, at paragraphs 9, 10, 11, 12 and 18 the plaintiffs solicitor says:

employer namely the second named defendant wrote to the first named defendant about the accident on the 11th of August 1988 and he received a reply dated the 22nd of August 1988. I beg to refer to a copy of the aforementioned reply upon which marked with the letter G, K, 3 1 sign my name prior to the swearing thereof I am also instructed that both the accident and the question of insurance was discussed with representatives of the first and eight named defendants (de Beers) at a site meeting that took place after the accident. I say that minutes of the site meeting were kept and I beg to refer to a copy of the minutes of the site meeting of the 31st of August 1988 in minutes dated the 7th of September 1988 at which the plaintiff’s accident was inter alia discussed. I beg to refer to a copy of the aforementioned minutes dated the 7th day of September 1988 upon which marked with the letter GK4 I sign my name prior to the swearing hereof and in particular to paragraph No. 10 titled insurances wherein there is a reference to my accident. I say that at this stage my employer had written to the first named defendant about the accident that he had received a reply by letter dated the 22nd of August 1988 which appears at Exhibit GK3.

(12) I say and am instructed by the plaintiff that no direct employee of de Beers actually witnessed the accident although I am instructed that medical staff did arrive after the accident and provided some initial bandaging and strapping and medical treatment for the plaintiff I say and am instructed that two employees of (de Beers) namely two gentlemen called Mr. Borge and Mr. William Roche were frequently involved in site decisions at (de Beers) premises and that this is reflected in the aforementioned minutes of the site meeting. I say and am instructed that the aforementioned Mr. Roche worked in the design office of(de Beers) and was in fact a long-term employee of theirs and has been working for (de Beers) in 1979 when works had previously being carried out at (de Beers) premises. I say that I am instructed by the plaintiff that it is quite likely that (de Beers) would keep maps and drawings relation to the pits where the work was being carried out. This is because the aforementioned maps and drawings would be necessary in the event that excavation works or engineering works would ever have to be carried out at the premises in the future i.e. to replace the existing pits.

(18) 1 now beg to refer to the affidavit of Eoin McMahon sworn on the 27th day of January 1998 when produced. In particular / beg to refer to paragraph 3 of the aforementioned affidavit. I say that Mr. McMahon does not outline what he has been able to ascertain about the circumstances surrounding the accident. Secondly, I say that given the nature of the accident and the fact that there were no witnesses of the accident who were employed by de Beers and given the fact that plaintiff himself is not an employee of de Beers that it is not surprising that their personnel manager is not aware of the matter. I say that it is not clear at this stage that (de Beers) has been inevitably prejudiced by the delay in the matter and I would submit that same would be more properly ascertained following discovery and more at the trial of the action.”

16. The learned high Court judge delivered an ex tempore judgment on the 8th of May 1998. A note of the judgment has been prepared and agreed by junior counsel for both parties. It had not been approved by the learned High Court judge before his sudden tragic death within a few months of delivering the judgment. This court is satisfied to accept the note prepared and approved

“On the 10th October 1997 Messrs. Keans indicate to Corrigan & Corrigan that they proposed issuing a notice to proceed then the penny dropped that they hadn’t served (De Beers) but had served the others, they say purely and simply they made a mistake. The plenary summons was issued just 11 days before the limitation period. It is that factual matrix against which I must decide pursuant to Order 8 Rule 1 to renew the summons. I have jurisdiction where I am satisfied that reasonable efforts to serve were made or for other good reasons. The first jurisdiction does not apply so I must determine whether there is any other good reason. Looking at it from the point of view of (de Beers) undoubtedly there was some considerable substantial delay in prosecuting this claim it is coming up to the 10th Anniversary. The defendant and solicitor have no file, they did not it seems obtain any statements while they have an account of the accident from a letter dated the 2nd of July 1991, they did not choose to get any further information. While the affidavit recites an extraordinary delay the reasons for this prejudice are not set out.

What about Mr. Borge and Mr. Roche? What other inquiries have been made and come up with a dead end? It is quite possible that a lengthy delay can occur in any case. I am not unduly impressed with the claim of prejudice made by the defendant. It is indicated that de Beers and Hibernian have closed their file. There is no evidence that the accident was investigated or destruction of records showed a huge prejudice. A bland assertion is not evidence of prejudice. I am not particularly moved by the suggestion of prejudice by the defendant in the absence of the defendant particularising the prejudice. There is no indication that the plaintiff’s conduct caused the defendant to believe the plaintiff had abandoned his claim this is no where averred so the destruction of files was not on foot of any indication by plaintiff that it (was) abandoning its claim. The plaintiff’s solicitors come in and tell the court candidly and say that it was overlooked that the plenary summons was not served upon (de Beers). If I refuse to renew the plenary summons the statute of imitations will defeat the plaintiff’s claim against de Beers. That reason alone is not enough in itself to entitle the plaintiff to automatically have the plenary summons renewed. However, the combination of the statute having run the correspondence threatening litigation

within the limitation period and the fact of eight defendants outweighs the assertion of prejudice to (de Beers). In the other cases there was not a multiplicity of defendants. The failure to serve was bona fide and genuine in this case that defendant not misled that proceedings abandoned and not satisfied by any grounds to persuade me that more prejudice caused the defendant. I dismiss the motion that seeks to set aside the renewal of the summons.

“As a footnote I might add that if it transpires upon the investigation of the matter that this defendant is materially prejudiced by for example the death of witnesses or whatever that it may be entitled to bring a motion to dismiss the plaintiff’s claim for want of prosecution or plead in defence and seek a preliminary issue and rely on actual examples of prejudice.”

17. Counsel for De Beers submitted that there is no question of reasonable effort to serve the plenary summons on de Beers having being made in this case. Consequently to be entitled to a renewal of the plenary summons the

18. Counsel for the plaintiff submitted that no specific or any real prejudice has been shown by de Beers by reason of the delay. In those circumstances the fact that the statute of limitations will have run if the plenary summons was not renewed, coupled with the absence of any specific prejudice and notice to de Beers shortly after the accident and the furnishing of the plaintiff’s medical report is sufficient good reason to entitle the plaintiff to a renewal.

19. Counsel in the course of their submissions referred to Baulk v. Irish National Insurance Company Limited [1969] IR 66 : McCooey v. The Minister for Finance [1971] IR 159 ; Roche v. Clayton & Ors. [1998] 1 IR 596 ; O’Brien v. Fahy (Supreme Court 21st March 1997).

Conclusions

20. The mere lapse of time in this case, now ten and a half years since the accident, gives rise to a general presumption of some prejudice by the dimming of memories of witnesses of the events. However, in this case de Beers had no actual witnesses to the accident. It was reported to them promptly and while they no longer have an accident book they should have minutes of site

meetings and if they have not they can easily obtain them from the plaintiff or by discovery. I think it would be wrong to say that mere oversight or inadvertence or carelessness can never be excused as amounting to “other good reason”: for example where the plenary summons may have expired in the recent past. In the present case de Beers have not shown any specific prejudice whatever. So far as the measure of damages is concerned if the plaintiff should succeed in his action de Beers and the other defendants should surely co-operate with each other and rely on the same medical evidence rather than calling numerous doctors to say the same thing quite unnecessarily.

21. As I said in Garland’s case above, the learned High court judge has a measure of discretion in these sort of matters and so long as he does not exceed the bounds of that discretion his decision should not be interfered with. In this case I am satisfied that the learned High Court judge was entitled to take the view of the case which in fact he adopted and I would accordingly dismiss this appeal.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Martin v. Moy Contractors Ltd. [1999] IESC 26 (11th February, 1999) URL: http://www.bailii.org/ie/cases/IESC/1999/26.html Cite as: [1999] IESC 26

Supreme Court of Ireland Decisions

Martin v. Moy Contractors Ltd. [1999] IESC 26 (11th February, 1999)

Conclusions