The Gazette 1991

NOVEMBER 1991

GAZETTE

basic right not to be subjected to a claim which he or she could not reasonably be expected to defend.' 36 " I also accept, as I indicated in my judgment on the previous appeal in this case, that the existence of culpable negligence on the part of a plaintiff whose claim has been delayed is of considerable relevance but that it is not an essential ingredient for the exercise by the court of its jurisdiction." 37

made out a case for probable injustice which would entitle them to be dismissed out of the action . . . " 3 5 Finlay, C.J., reiterated and, indeed reinforced, the view of the law which he had expressed in Toal (No.1) and asserted that the Court's jurisdiction to bar a blameless plaintiff's claim was an inherent jurisdiction gnder the Constitution. The learned Chief Justice said " I adhere to the view expressed by me in the previous appeal in this case that the court has got such an inherent jurisdiction. It seems to me that to conclude otherwise is to give to the Oireachtas a supremacy over the courts which is inconsistent with the Constitution. " I f the courts were to be deprived of the right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas has provided a time limit which in the particular case has not been breached would be to accept a legislative inter- vention in what is one of the most fundamental rights and obligations of a court to do ultimate justice between the parties before it. "This view does not, however, of course mean that this is a jurisdiction which could be frequently or lightly assumed and there can be no doubt that the issue before the court always remains that which was identified by Henchy, J., in O'Domhnaill -v- Merrick where, in the course of his judgment, he stated:

support. The powerful dissenting judgments of McCarthy, J., in O'DomhnaiH's case and Toal (No. 2) express, more eloquently than the present writer could hope to do, the objections to the new doctrine; and Professor McMahon's and Mr. Binchy's commentary is one with which one can wholly concur. 39 The present writer would say only this: that his grave mistrust of the doctrine of judicial review and "constitutional law-making" under the Constitution, as practised in the Irish courts, has been confirmed.

. . . the utmost caution is required... in accepting instructions in a claim which may be regarded by the Courts as "stale" but... is nevertheless sanctioned by the authority of the Oireachtas.

Conclusion: utmost caution required The practical conclusion to be drawn from these decisions of the Supreme Court is that the utmost caution is required by solicitors in accepting instructions in a claim which may be regarded by the Courts as "stale" but is one the bringing of which is nevertheless sanctioned by the authority of the Oireachtas. Most certainly, soli- citors acting in such cases should proceed with all due diligence and not allow themselves to enter into negotiations with insurance com- panies who may, thereafter, rely on the period involved for the purpose of alleging delay on the part of the plaintiff's solicitor. For, if even the wholly innocent may lose their rights at law in the manner sanct- ioned by the Supreme Court in these cases, the mildly culpable, guilty of only "small delay", are in double jeopardy. In O'Domhnaill -v- Merrick McCarthy, J., dissenting, rightly observed: " I have already referred to the charge of delay as being one made against the plaintiff's present solicitor; in truth, the charge is one of fooihardiness in taking on the case at all. . . ." 38 As to the merits of these decisions, it is of no avail to discuss these when the Supreme Court has twice asserted this novel doctrine and invoked the Constitution in its

It is something which is profoundly undemocratic and a cause for the most serious concern, even outside its immediate effects on plaintiffs in the instant cases who are deprived by it of the rights afforded them by the Oireachtas. That "the Supreme Court knows best" is not a philo- sophy with which the present writer can concur. Where the Court relies upon its traditional common law function of law-making - even on the grand scale of McNamara -v- Electricity Supply Board 40 where it began the process, which it has since continued, of re-writing the common law of occupiers' liability - it relies on the cogency of its arguments and the commonly per- ceived justice of the result to com- mend its conclusion to the Legislature; but, if it cannot so per- suade the Legislature, it has lost the argument, and the democratic arm of the Government may amend the law. The common lawyers rely upon the cogency of their arguments to justify their conclusion; but the Supreme Court, in invoking the Con- stitution, relies on its view of a vague document, not intended to be used in the fashion now popular, and against which it is of no avail to argue on any ground. That the Oireachtas, the democratic organ of Government, should be bound in such manner is undoubtedly the gravest result of these decisions.

'In all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's

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