The Gazette 1985

GAZETTE

JULY/AUGUST

1985

delay can be laid at Defendant's door. The Plaintiff, though technically an infant would not be entitled to separate herself from the delay as she might possibly do so if she was a younger person, having regard to the wide range of legal capacity which the law attributes nowadays to persons of eighteen years and upwards. There was at least an onus on her to show that she took such steps to prosecute her claim as could reasonably be expected from a person of her age, or failing such steps, to give an explanation of her inactivity. Although the Plaintiffs .claim is not statute barred, the lapse of twenty-four years between the cause of action and the hearingof the complaint— a delay which is virtually entirely the fault of the Plaintiff or her Advisers — is so patently and grossly unfair to the Defendant that her claim to have the case dismissed against her is unanswerable. The Court reached the conclusion in the knowledge it had not been submitted on behall of the Plaintiff that it would not be possible for her to take an alternative course to this action for the purpose of recovering damages or compensation. The Appeal was dismissed. McCarthy J. — in his dissenting judgment stated the only delay of signifi- cance for which the Plaintiffs present Solicitor is responsible — from December 1979 until 1981 — is excused by the need to procure adequate information concerning the consequences of the injuries to the Plaintiff and that such delay is proper in a case of serious personal injuries, such as this case. The Plaintiff could lawfully have started her Action on 28 November 1981 in which case it is unlikely the case could yet have been tried. The statutory right of the Plaintiff is for the period of her infancy and three years thereafter and however much one might sympathise with the position of the Defendant and her Insurers, that is the law — a law prescribed by the Oireachtas at the instance of the Executive; in the twelve years since O'Brien's case, neither has seen fit to change it or, indeed, other apparent injustices contained in the Statute of Limitations. He could not subscribe to the view that the Statute of Limitations passed in 1957, four years after the passing of the Convention for the Protection of Human Rights and Fundamental Freedoms is to be limited by the terms of Art. 6(1) of the Convention. If the Statute constitutes a comprehensive code, there is impressive support for the view that it is an impermissible exercise of the judicial function to go beyond the statutory provision by applying the principles of private law merely because they may appear to achieve a fairer solution to the problem being considered than that covered by the Statute Law. (He referred to: In re O'Laighleis [1960] I.R. 93; Pioneer Aggregates (U .K.) Limited -v- Secretary of Statefor the Environment and

December 1979 was obtained allowing the Plaintiff to proceed with the Action in her own name, she having reached full age in November 1978. No step in the prosecution of her claim seems to have been taken between December 1979 and September 1981 and it became necessary to serve another Notice of Intention to Proceed. That was done in September 1981. It was not until January 1982 that a Notice of Motion was issued on behalf of the Plaintiff seeking an extension of the time lor serving a Statement of Claim. A Statement of Claim could have been delivered in full compliance with the rules of Court within twenty-one days from the service of the Plenary Summons on 2 December 1977. The Court, on perusal of the Affidavits in the present application could find no reason that would explain or justify the lour years delay in delivering a Statement of Claim that then took place. In May 1982, an Order was obtained from the Master of the High Court extending the time for delivery of a State- ment of Claim. An Appeal by the Defendant against that Order, together with a Motion by the Defendant for the dismiss for want of prosecution of the Plaintiffs claim, was heard by Hamilton J. in December 1982, when he made an Order reversing the Master's extension time for delivering a Statement of Claim and another Order dismissing the Action for want of prosecution. It is from those Orders that the Plaintiff appealed to the Supreme Court. Notices of Appeal against the Orders of Hamilton J. were issued by the Plaintiff on 10 January 1983. A Motion to dismiss the Appeals for want of prosecution was brought by the Defendant in November 1983. When that Motion came on for Hearing the Court was told that the books of Appeal were then ready so an Order by consent was made dismissing the Motion. The Court, however, gave liberty to the Plaintiff to mention the Appeal as soon as it was listed, so that an Application could be made to have the Hearing expedited. No such application was made. If the Appeal was to be allowed the Hearing of the case would not be likely before 1985, twenty-four years after the accident. The Defendant submitted in an Affidavit sworn by her Solicitor that "it is unreasonable to expect any witness to recollect an accident which took place in 1961 some twenty-one years later and I say that it is contrary to natural justice that the Defendant should now be required to defend this Action and that the Defendant has been seriously prejudiced by the failure of the Plaintiff to prosccute her claim within a reasonable time of the occurrence of the accident". On the facts, therefore, the question to he answered by the Court was "should the Defendant be required in the circumstances to seek to rebut an

allegation of negligence on her part in an accident that happened virtually a quarter of a century before the trial and to meet a claim for heavy damages for personal injuries suffered by the Plaintiff in that accident, when she first learned of such a claim sixteen years after the accident?" The Court considered the following judicial authorities on the effect of delay in the prosecution of claims, Alien -v- MeAlpine [1968] 2 Q.B.229; Dowd -v- Kerrv Co.Co. [1970] I.R.27; O'Reilly -v- C./.E. [1973] I.R.278; the unreported Judgment of Finlay P. in Rainsford -v- Limerick Corporation (31 July 1979); Birkett -v- James [1977] 2 All E.R.801; and Sheehan -v- Amond [1982] I.R.235 and it was agreed that whether delay should be treated as barring the prosecu- tion of a claim must inevitably depend on the particular circumstances of a case. Where delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are counter- vailing circumstances, such as conduct akin to acquiescence on the part of the Defendant, or inability on the part of an infant Plaintiff to control or terminate the delay of his or her agent. In all cases the Court should seek to strike a balance between the Plaintiffs need to carry on his or her delayed claim against the Defendant and the Defendant's right not to be subjected to a claim which he or she could not reasonably be expected to defend. The Courts in the past have been reluctant to exercise their equitable jurisdiction to terminate stale claims at a time when the statutory period of limita- tion has yet to expire. However, it must be assumed (although in the absence of argument not finally decided by the Court) that the Statute of Limitation, 1957 is to be construed and applied in consonance with the State's obligations under International Law, including any relevant treaty obligations. Art. 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides as follows: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law," (Emphasis supplied by Court). The Convention is not part of the domestic law of the State but because the Statute of Limitations, 1957, was passed after this State ratified the Convention in 1953, it is to be argued that the Statute, since it does not show any contrary intention, should be deemed to be in conformity with the Convention and should be construed and applied accordingly. HELD: per Henchy J. Griffin J. concurring (McCarthy J. Diss.). No part of the blame for the first sixteen years of

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