The Gazette 1991

GAZETTE

OCTOBER 1991

occurred on 14 May, 1971, the writ had been issued on 20 August, 1973, and the plaintiff's solicitors had sought a consent to the late filing of a statement of claim in July, 1978, which consent had been refused. The Master granted the extension of time on 2 March, 1979. After reviewing the auth- orities, the learned President stated what he considered to be the "legal principle applicable in this country at present to the problem of the dismissal of an action for want of prosecution or to its continuance by an extension of the time for pleading" and enunciated four principles: "1. Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and, even if inordinate, whether it has been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and op- posing a continuance of the proceedings. " 2 . Where a delay has not been both inordinate and inexcusable, it would appear that there are no real grounds for dismissing the proceedings. " 3 . Even where the delay has been both inordinate and inex- cusable the court must further proceed to exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of, or against, the proceeding of the case. Delay on the part of a defendant seeking

a dismiss of the action and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of pro- secution may be an ingredient in the exercise by the court of its discretion. " 4 . Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant's personal blameworthiness for delay is material to the exercise of the court's discretion." 25 Although the President found that there had been inordinate and inexcusable delay he, nevertheless, came to the conclusion that the balance of justice lay in favour of permitting the plaintiff's action to proceed and, accordingly, he affirmed the order of the Master of the High Court. These principles are eminently just and necessary to " [The Rains ford] principles are eminently just and necessary to prevent abuse of the process of the Court. . . . " prevent abuse of the process of the Court by delay in the prosecution of an action which delay has become oppressive to the defendant. In O'Domhnaill -v- Merrick (26) Henchy, J., with whom Griffin, J., concurred, enunciated a broader jurisdiction to dismiss an action for want of prosecution, relying not

only on delay in the prosecution of the litigation once commenced but upon antecedent matters notwith- standing that these did not affect the plaintiff's right to maintain the action under the Statute of Limitations, 1957. The plaintiff was born on 29 November, 1957, and sustained very serious injuries with permanent sequelae in a road traffic accident on 5 March, 1961. In 1965, approximately one year after the expiration of the three-year period of limitation then provided for in the Statute of Limitations, 1957 a writ was issued on her behalf. As the law then stood, her action was statute- barred. No further step was taken in those proceedings and, on the application of the defendant owner of the car who had been sued in those proceedings, the action was dismissed for want of prosecution by order of 23 April, 1968. In O'Brien -v- Keogh 27 the Supreme Court found unconstitutional that provision of the Statute of Limitations, 1957, which restricted the period of limitation in the case of an infant plaintiff in the custody of a parent to three years. 28 Thereafter, the period of limitation was 3 years from the date of the plaintiff's majority, ije. 21 years + 3 years. In March, 1977, the plaintiff's mother, as next friend, consulted another solicitor who issued a writ against the present defendant, the driver of the car, on 9 September, 1977, which was served on 2 December, 1977. An appearance was eventually, entered on 9 May, 1978 following a series of extensions of time for so doing granted on consent by the plaintiff's solicitor. For over two years, until the end of 1979, the plaintiff's solicitor was in correspondence with insurers

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