The Gazette 1985

384 / 406

GAZETTE JULY/AUGUST 1985
December 1979 was obtained allowing
the Plaintiff to proceed with the Action in
her own name, she having reached full
age in November 1978.
No step in the prosecution of her claim
seems to have been taken between
December 1979 and September 1981 and
it became necessary to serve another
Notice of Intention to Proceed. That was
done in September 1981.
It was not until January 1982 that a
Notice of Motion was issued on behalf of
the Plaintiff seeking an extension of the
time lor serving a Statement of Claim. A
Statement of Claim could have been
delivered in full compliance with the rules
of Court within twenty-one days from the
service of the Plenary Summons on 2
December 1977. The Court, on perusal of
the Affidavits in the present application
could find no reason that would explain
or justify the lour years delay in
delivering a Statement of Claim that then
took place.
In May 1982, an Order was obtained
from the Master of the High Court
extending the time for delivery of a State-
ment of Claim. An Appeal by the
Defendant against that Order, together
with a Motion by the Defendant for the
dismiss for want of prosecution of the
Plaintiffs claim, was heard by Hamilton
J. in December 1982, when he made an
Order reversing the Master's extension
time for delivering a Statement of Claim
and another Order dismissing the Action
for want of prosecution. It is from those
Orders that the Plaintiff appealed to the
Supreme Court.
Notices of Appeal against the Orders of
Hamilton J. were issued by the Plaintiff
on 10 January 1983. A Motion to dismiss
the Appeals for want of prosecution was
brought by the Defendant in November
1983. When that Motion came on for
Hearing the Court was told that the
books of Appeal were then ready so an
Order by consent was made dismissing
the Motion. The Court, however, gave
liberty to the Plaintiff to mention the
Appeal as soon as it was listed, so that an
Application could be made to have the
Hearing expedited. No such application
was made.
If the Appeal was to be allowed the
Hearing of the case would not be likely
before 1985, twenty-four years after the
accident. The Defendant submitted in an
Affidavit sworn by her Solicitor that "it is
unreasonable to expect any witness to
recollect an accident which took place in
1961 some twenty-one years later and I
say that it is contrary to natural justice
that the Defendant should now be
required to defend this Action and that
the Defendant has been seriously
prejudiced by the failure of the Plaintiff to
prosccute her claim within a reasonable
time of the occurrence of the accident".
On the facts, therefore, the question to
he answered by the Court was "should
the Defendant be required in the
circumstances to seek to rebut an
allegation of negligence on her part in an
accident that happened virtually a
quarter of a century before the trial and to
meet a claim for heavy damages for
personal injuries suffered by the Plaintiff
in that accident, when she first learned of
such a claim sixteen years after the
accident?"
The Court considered the following
judicial authorities on the effect of delay
in the prosecution of claims, Alien -v-
MeAlpine [1968] 2 Q.B.229; Dowd -v-
Kerrv [1970] I.R.27; O'Reilly -v-
C./.E. [1973] I.R.278; the unreported
Judgment of Finlay P. in Rainsford -v-
Limerick Corporation (31 July 1979);
Birkett -v- James [1977] 2 All E.R.801;
and Sheehan -v- Amond [1982] I.R.235
and it was agreed that whether delay
should be treated as barring the prosecu-
tion of a claim must inevitably depend on
the particular circumstances of a case.
Where delay has been inordinate and
inexcusable, such delay is not likely to be
overlooked unless there are counter-
vailing 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
Court should seek to strike a balance
between the Plaintiffs need to carry on
his or her delayed claim against the
Defendant and the Defendant's right not
to be subjected to a claim which he or she
could not reasonably be expected to
defend. The Courts in the past have been
reluctant to exercise their equitable
jurisdiction to terminate stale claims at a
time when the statutory period of limita-
tion has yet to expire. However, it must be
assumed (although in the absence of
argument not finally decided by the
Court) that the Statute of Limitation,
1957 is to be construed and applied in
consonance with the State's obligations
under International Law, including any
relevant treaty obligations. Art. 6(1) of
the Convention for the Protection of
Human Rights and Fundamental
Freedoms (1950) provides as follows:
"In the determination of his civil
rights and obligations or of any
criminal charge against him, everyone
is entitled to a fair hearing within a
reasonable time by an independent and
impartial tribunal established by
law," (Emphasis supplied by Court).
The Convention is not part of the
domestic law of the State but because the
Statute of Limitations, 1957, was passed
after this State ratified the Convention in
1953, it is to be argued that the Statute,
since it does not show any contrary
intention, should be deemed to be in
conformity with the Convention and
should be construed and applied
accordingly.
HELD: per Henchy J. Griffin J.
concurring (McCarthy J. Diss.). No part
of the blame for the first sixteen years of
delay can be laid at Defendant's door.
The Plaintiff, though technically an
infant would not be entitled to separate
herself from the delay as she might
possibly do so if she was a younger
person, having regard to the wide range
of legal capacity which the law attributes
nowadays to persons of eighteen years
and upwards. 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. Although the Plaintiffs
.claim is not statute barred, the lapse of
twenty-four years between the cause of
action and the hearingof 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
dismissed against her is unanswerable.
The Court reached the conclusion in the
knowledge it had not been submitted on
behall 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 compensation.
The Appeal was dismissed.
McCarthy J. — in his dissenting
judgment stated the only delay of signifi-
cance for which the Plaintiffs present
Solicitor is responsible — from
December 1979 until 1981 — is excused
by the need to procure adequate
information concerning the consequences
of the injuries to the Plaintiff and that
such delay is proper in a case of serious
personal injuries, such as this case. The
Plaintiff could lawfully have started her
Action on 28 November 1981 in which
case it is unlikely the case could yet have
been tried. The statutory right of the
Plaintiff is for the period of her infancy
and three years thereafter and however
much one might sympathise with the
position of the Defendant and her
Insurers, that is the law — 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. He could not
subscribe to the view that the Statute of
Limitations passed in 1957, four years
after the passing of the Convention for
the Protection of Human Rights and
Fundamental Freedoms is to be limited
by the terms of Art. 6(1) of the
Convention. If the Statute constitutes a
comprehensive code, there is impressive
support for the view that it is an
impermissible exercise of the judicial
function to go beyond the statutory
provision by applying the principles of
private law merely because they may
appear to achieve a fairer solution to the
problem being considered than that
covered by the Statute Law. (He referred
to: In re O'Laighleis [1960] I.R. 93;
Pioneer Aggregates (U .K.) Limited -v-
Secretary of Statefor the Environment and
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