The Gazette 1991

GAZETTE

NOVEMBER 1991

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:

'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

basic right not to be subjected

to a claim which he or she

could not reasonably be

expected to defend.'

" 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."

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. . . ."

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

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.

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.

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

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.

. . . 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.

313