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."

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.

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

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.

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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