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.

(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."

Constitutional jurisdiction to

dismiss

Toal -v- Duignan (Nos. 1 &

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.

. . . . the Supreme Court. . . asserted a jurisdiction to

dismiss an action brought within the limitation period. . .

as a jurisdiction derived from the Constitution.

311