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Grossly unfair to defendant to allow personal injuries action to proceed 24 years after accident

By: Mark Tottenham BL

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High Court grants order striking out a personal injuries action commenced in 1977 in respect of a road traffic accidence in 1961 when the plaintiff was three years old, on the grounds that, notwithstanding that the action was not statute-barred, the delay in the proceedings was inordinate and inexcusable and it would be patently and grossly unfair to the defendant to allow the action to proceed twenty four years after the accident had taken place.

Henchy J (majority decision): Road traffic accident in 1961 - injured party three years old - summons issued in 1977 - 1982 application for extension of time to extend statement of claim - refusal of extension of time - appeal - whether defendant prejudiced in defence of action - s. 49(2) (a) (ii) ofthe Statute of Limitations, 1957 - summons served on defendant in 1977 - failure to prosecute claim - inordinate and inexcusable delay - Art 6(1), European Convention on Human Rights, 1950

"One would have thought that this stale claim would then have been prosecuted with punctuality and assiduity. Unfortunately that did not happen. Between May 1978 and October 1979 no step seems to have been taken on behalf of the plaintiff towards the hearing of her case: An inactivity, still unexplained, immobilised the plaintiff's claim. Since there was no move in the proceedings for over a year, it became necessary, before taking any further step, to serve a notice of intention to proceed. Such a notice was served by the plaintiff's solicitor in October 1979. One would have expected this notice to be the prelude to a period of vigorous activity in the prosecution of the claim. Alas, it turned out not to be so. All it led to was the obtaining of an order from the Master of the High Court in December 1979 allowing the plaintiff to proceed with the action in her own name, she having reached full age in November 1978.
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Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing 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 problem of the court would seem to be to strike a balance between the plaintiff's need to carry on his or her delayed claim against the defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."

"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 negligence on her part in an accident that would have taken place twenty-four years before the trial and a claim for damages of which she first learned sixteen years after the accident. 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."

"I would hold that, although the plaintiff's claim is not statute barred, the lapse of twenty-four 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 unanswerable."

McCarthy J (dissenting): Limitation of actions - S. 22 of the Common Law Procedure Amendment Act (Ireland) 1853 - Statute of Limitations 1957, s 49 - rights of infants - postal strike - status of Convention on Human Rights in Irish law - whether delay was relevant in circumstances where action was not statute-barred.

"In these circumstances, whilst fully recognising the force of a complaint that justice is little served by embarking on the trial of a witness action at a minimum of twenty four years after the event, the blame for that cannot, in my view, be laid at the door of the plaintiff, her former next friend, or her solicitor. It may well be that a period ofabout a year or so could have been saved between 1979 and 1981; such isof little significance in the span of years with which we are presentlyconcerned. The fact remains that the present plaintiff could lawfullyhave started her action on the 28th November 1981, in which case it is,I believe, highly unlikely it could yet have been tried. The bloom had long faded from the action but the statutory right of the plaintiff for the period of her infancy and three years thereafter remained; however much one might sympathise with the position of the defendant and her insurers - it would seem manifestly wrong that a motor car driver could be called to answer for her driving twenty five years or more after the event - but that is the law - it is 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."

"Lest my silence on the topics might be considered to denote agreement I would like further to express my disagreement with the proposition that there is an onus on an infant, as so defined in the Statute ofLimitations, to explain delay in the commencement or prosecution of an action, emphasising, as I do, the distinction between the two; nor do I accept that the plaintiff necessarily has an alternative course to this action for the purpose of recovering damages or compensation."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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