The Gazette 1991

GAZETTE

NOVEMBER 1991

in connection with the claim and then a firm of solicitors, not on record, wrote on behalf of the defendant indicating that they intended to apply to have the action dismissed on the ground that to proceed with the action so long after the occurrence of the accident would be contrary to natural justice. When these soli- citors eventually came on record on 25 October, Í979, the plaintiff shortly thereafter served notice of intention to proceed in the action and on four different occasions sought letters consenting to late filing and service of the statement of claim. This was consistently refused. Ultimately, in January, 1982, the plaintiff applied for and obtained an order extending the time for delivery of defence on 5 February, 1982, but this was reversed by the High Court in December, 1982, and the action was dismissed for want of pro- secution. The plaintiff's appeal to the Supreme Court was delayed by her solicitor's failure to lodge the books of appeal and was ultimately heard in May, 1984. The appeal was dismissed. Henchy, J., with whom Griffin, J. concurred, held that there was "inordinate and inexcusable delay on the part of the plaintiff" and enunciated the most extraordinary doctrine that, given the plaintiff's age during the later part of the delay, she could not, although still an infant and under a disability within the meaning of the Act of 1957, "separate herself from the delay as she might possibly have done if she had been a younger person. 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" wh i ch had not been forth- coming. 29 (These propositions were vigorously disputed by McCarthy, J., who dissented and who also made the telling point that there was no evidence that the witnesses to the accident were un- available or that they had no meaningful recollection of the circumstances of the accident.) Henchy, J., concluded that the

plaintiff's action, should stand dismissed: "After due regard to all relevant factors, I am driven to the con- clusion that not only was the delay in this case inordinate and inexcusable but there are no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the Courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negli- gence on her part in an accident that would have taken place 24 years before the trial, and a claim for damages of which she first learned 16 years after the acci- dent. Apart from the personal unfairness that such a trial would thrust on the defendant, I consider that a trial after such a remove in time from the cause of action would be essentially unfair for being incompatible with the contingencies which insurers of motor vehicles could reasonably be expected to provide against... "As to a plaintiff's right to proceed with an action brought before the period of limitation has run out, the Courts in the past have been reluctant to exercise their equitable juris- diction to terminate stale claims at a time when the statutory period of limitation has yet to expire. However, the Statute of Limitations, 1957, was enacted in a legal milieu which makes such reluctance to intervene inappropriate... "Although the plaintiff's claim is not statute barred, I would hold that the lapse of 24 years between the cause of action and the hearing of 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 against her dismissed is unan- swerable. I might say that I reach that conclusion in the know- ledge that it has not been sub- mitted on behalf 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 compen- sation." 30 In Toal -v- Duignan (Nos. 1 & 2/ 31 the Supreme Court went further and asserted a jurisdiction to dismiss an action brought within the limitation period not as part of the inherent jurisdiction of the courts to dismiss an action which amounts to an abuse of process because of want of prosecution but rather as a jurisdiction derived from the Constitution and even where there is no culpable delay on the part of the plaintiff. The plaintiff was born in the Coombe Hospital on 28 June, 1961, w i th an undescended right testicle. This condition was not in fact detected by the staff in that hospital either on the occasion of his birth or on a return visit some three months later with a complaint of vomiting and consequently no treatment was given to the plaintiff in respect of this condition nor was any warning given to the plaintiff's parents to watch carefully to see if the right testicle would descend during the following two or three years and if not to seek further medical advice. The first time the plaintiff's genital area was again examined by a medical doctor was in June, 1971, when the plaintiff was almost ten years of age and developed mumps. He was referred at once to Harcourt Street Children's Hospital and was there detained from some days, during which time he was examined. Constitutional jurisdiction to dismiss

. . . . the Supreme Court. . . asserted a jurisdiction to dismiss an action brought within the limitation period. . . as a jurisdiction derived from the Constitution.

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