THE HIGH COURT
[2001 No. 13418P]
BETWEEN
DEREK CROWLEY
PLAINTIFF
AND
ROCHE PRODUCTS (IRELAND) LTD.,
F. HOFFMAN – LA ROCHE LIMITED,
ROCHE HOLDINGS LIMITED, R.P. SCHERER LIMITED,
ROCHE PRODUCTS LIMITED, THE IRISH MEDICINES BOARD,
FERGUS LYONS
DEFENDANTS
DECISION of the Master of the High Court 20th January, 2006
Failure to meet the procedural deadlines set by Rules of Court will necessitate
an application to Court for leave to proceed notwithstanding the infringement. The
decision is at the discretion of the court. Not unsurprisingly, the court often proceeds
to examine the causes of the delay, the respective responsibilities of either party’s
lawyers, even whether the delay was the fault of the party in default rather than that
party’s legal team. If it is a culpable delay, there is the inevitable “blame game”. But
although the Court may seem often tempted to penalise the culpable party by refusing
the application, the final decision always appears to turn on the interests of justice.
The Court’s patience may have been sorely tried but in the interests of justice it
appears to be inexhaustible. Culpable though the applicant’s dilatory conduct of the
proceedings may have been, unless the respondent can establish difficulties which
imperil a fair trial – which “put justice to the hazard” – the Court will accede to the
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applicant’s plea for forbearance. It is a truism to say that to halt a plaintiff’s case is
prima facie unjust. It is also unarguable that a defendant who has a good defence will
not lose the case no matter when the trial occurs. Taken together, more injustice will
occur if a culpable defendant is let “off the hook”.
The formula set out in Primor Plc. v. Stokes Kennedy Crowley & Ors 1996 2
IR 459 (“Primor”) acts as a filter. If the delay (albeit in breach of the Rules) is not
“inordinate” or even if inordinate is “excusable”, the opposing party should be
realistic and simply consent to the deadline extension requested. But even if it is both
“inordinate” and “inexcusable” the Court may still permit the action to proceed if the
balance of justice so requires.
It hardly seems necessary to point out that the Rules of Court are
determinative of nothing. A Court of full original jurisdiction, such as the Irish High
Court, may settle rules for the efficient disposition of its resources and to try to
impose some practical disciplines on the litigants who come before it but, “when push
comes to shove” and justice demands it, breach of no mere Rule of Court should be
fatal to a meritorious cause of action or a bona fide defence.
In case this matter falls ultimately to be decided or considered outside of the
immediate Irish courts’ structure it is perhaps useful to note here for the information
of such other authorities that the Plenary Summons (served in this case on this
defendant in August, 2001) contains no more than a signalling of the plaintiff’s
intention to seek damages for negligence. No factual details are set out. There is
nothing in the “General Indorsement of Claim” which would enable a defendant
(who up ‘til that point knew nothing about the plaintiff’s history or circumstances) to
begin his enquiries or preparations with a view to dealing with the claim in the
fullness of time. A defendant must respond to the service on him of the Summons by
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filing an “Appearance” in the Central Office of the High Court, copying same to the
plaintiff and indicating (if such be the case) that he, the defendant, required delivery
of a “Statement of Claim”.
The Rules stipulate that a Statement of Claim be delivered within 21 days of
receipt of the Appearance, if the defendant requests. It is open to the defendant to
move the Court for an Order dismissing the plaintiff’s claim for failure to deliver the
Statement of Claim at any time after the expiry of that period. (In the instant case, the
seventh named defendant did not do so, but I will return to this feature later.) A
defendant’s such application and a plaintiff’s application to extend the deadline are
two sides of the same coin! Precisely the same legal principles govern the outcome.
The Rules of Court provide, at Order 122, r. 7 thereof, that “The Court shall
have power to enlarge or abridge the time appointed by these Rules … upon such
terms (if any) as the Court may direct”. Applications for such an extension are by
Motion (on notice to the other party).
This application arises precisely in such circumstances. Having issued his
Plenary Summons on 31st August, 2001, the plaintiff missed the deadline set out in the
Rules of Court for the delivery of his Statement of Claim. The seventh named
defendant declined consent to the late filing of the Statement of Claim when requested
to consent on 26th October, 2004. The plaintiff now applies to court for an extension
of time for delivery of the Statement of Claim.
A draft Statement of Claim is exhibited but is not itself evidence of the facts
alleged. The plaintiff’s history is deposed to on affidavit. He says that a tablet
marketed by the seventh named defendant was prescribed for him in 1992, when he
was aged 16, for the treatment of severe acne. He says that “whilst on the Roaccutane
treatment, I noticed that I …became increasingly obsessive, compulsive, anxious and
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irritable”. His “condition deteriorated” and he “decided I could no longer continue
at school”. He lists seven medical practitioners consulted by him in the period 1993
to 1998 but says that “notwithstanding treatment I continued to suffer deterioration in
mood, anxiety levels and obsessive compulsive behaviour”.
He says that “I only become aware of the possibility of a link between my
illness and the drug Roaccutane when I attended Dr. Caroline Murphy in September
1998 and … she recommended me to obtain legal advice”.
The rule above cited is silent as to the considerations which will influence the
outcome of the application, but the reported case law in regard to procedural delays
and other like infringements of the Rules fall to be considered as guidance.
Particularly in point are the cases in which the court dealt with applications by
defendants for dismissal of a plaintiff’s claim on the grounds of “want of
prosecution” including, in particular, the failure to deliver a Statement of Claim.
As with all discretionary powers, a variety of approach, and unpredictability,
may be inimical to a perception of justice (and may also generate more heat than
light!). Perhaps to avoid such an undesirable pattern, the Supreme Court Primor
formula set out the factors which ought to be considered by the judge deciding an
application dealing with litigation which had been delayed in breach of the rules.
In 1979 Finlay P. offered a formulation of the methodology appropriate for
adjudicating dismiss applications in Rainsford v. Corporation of Limerick 1995 ILRM
561, and he added the adjectives “inordinate” and “inexcusable” to the word
“delay”. “Where a delay has not been both inordinate and inexcusable it would
appear that there are no real grounds for dismissing the proceedings”. By this, I
think he intended to warn off trigger happy defendants: no point in bringing an
application, he was saying, unless the delay was gross. The test has been “enshrined”
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by frequent use into a set of preconditions subjected to excessively legalistic analysis.
Curiously, we spend our time considering whether the delay is inexcusable, and (in
the later analysis of the balance of justice) we re-examine the excuse previously found
to be unacceptable!
The Primor “formula” rapidly became the focus of argument, often to the
point of exasperation. What were to be the extremes of delay that would not be
considered “inordinate” even though clearly in breach of the period stipulated in the
rules? Was it only delay from the date of the summons that was in issue? What if the
delay was contributed to by the conduct of the other party? What sort of excuse
would be acceptable? Which party had the burden of proving that the delay was
inexcusable? And so on and so forth. And in the final analysis, what was the
yardstick to be employed in judging the “justice” of the contemplated outcome? In
time case law, even obiter dicta, may come to be treated with excessive reverence and
interpreted to death in a forensic process not unlike the interpretation of Statute.
“Delay” as a concept is relative: it involves measuring progress (or lack thereof)
against some norm. The notion of “inordinate” delay is almost a chicken and egg
concept: the longer the delays which parties can get away with, the longer the delay
which perforce becomes “ordinate”.
The addition of the adjective “inexcusable” to describe the delay has caused
problems. It appears to this commentator that it was probably merely intended to
clarify precisely what was meant by “inordinate”, and just to underline by what
margin the delay would have to exceed what was normal. Inexcusable does not mean
that the excuse offered is unacceptable, or discloses actionably unprofessional
standards: taken literally it means that no excuse is acceptable. One can readily
imagine the sort of delay for which no excuse would be acceptable.
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But instead of treating “inexcusable” as a further simple measure of
extraordinary delay, the Courts have usually embarked on an examination of the
circumstances disclosed – what (or who) was to blame for the delay - in order to
inform a decision as to whether the plaintiff could continue with the litigation or
whether the Court should treat the delay as having, in effect, caused the forfeit of his
right of access to the Courts.
In Anglo Irish Beef Processors v. Montgomery [2003] 3 I.R. 510 the judgment
of the Supreme Court (Fennelly J) included the following passage:
“There may, of course, be cases where the unpredictable hazards of life afflict
the course of litigation. Individuals may be handicapped by poverty, illness,
ignorance or absence from the jurisdiction. Documents may be mislaid, lost
or destroyed. Poor or inadequate legal advice or service may, through no
fault of the litigant, impede the progress of a claim. No comparable
misfortune has been advanced in the present case. The stark failure to proffer
even the vestige of an explanation for the delay is a circumstance which
should not be overlooked. It looks like mute, not to say insolent, indifference,
when a litigant, positioned as the plaintiffs are in this case, evince no
consciousness of the need to explain their long and egregious periods of
silence. The Courts are entitled to expect something more from parties who
crave its indulgence.”
Frankly, the blame game is unedifying and in uncharted territory: it involves
examining, amongst other things, duties owed by one party to another, by one lawyer
to another, by a lawyer to his client and vice versa and issues such as
misrepresentation, estoppel etc. etc. all of which must be summarily decided. The
consequences of adverse findings are usually so far reaching that the Court will prefer
to reluctantly permit the case to proceed: summary justice is not an attractive option.
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In recent years, the Primor formula has reached breaking point. It has not
stood the test of time. It has attracted further analysis and refinement by which it has
mutated. And, unexpectedly perhaps, the mutation has been not in the direction of
clarity or precision or measurability of factors. Rather, it has been a growing
realisation that a “formula” is not the way to process these cases: both parties are
seeking justice, and justice is not amenable to scientific forecasting.
Surely the only question to be determined is not whether the excuse offered is
good or bad, but whether the delay prejudices a fair trial. A decision on due process
what is likely to be the effect of the delay ? – does not need any apportionment of
blame. The behaviour of the parties (for whatever reason) or their lawyers to date has
created a problem and the Court must decide if it can fairly proceed. It will not make
that decision as a punishment, or to sanction a party whose behaviour is offensive to
the Court.
There is no mention of “excuses” in this summary of the Supreme Court’s
approach in Dowd v. Kerry County Council [1970] I.R. 27 at 42 (judgment of Ó
Dálaigh C.J.) :“It is of course, desirable that the timetable as laid down in the rules should
be adhered to, but the question remains whether the delay and consequent
prejudice, in the special facts of the case, are such as to make it unfair to the
defendant to allow the action to proceed and to make it just to strike out the
plaintiff’s action.”
In Whearty and Others v. ACC and Others (Unreported, McCracken J., 1st
October, 1997) McCracken J. said:“Whichever way one looks at it, the Court undoubtedly has to carry out a
balancing exercise. It has to balance the right of a litigant who has suffered
loss to have access to the courts, and to obtain the appropriate remedy,
8
against the equally important right of a litigant who is being sued to present
its defence fully and comprehensively.”
And in J. O’C v. D.P.P. 2000 3 IR 478, 500, Hardiman J. in The Supreme
Court noted that in England, Civil cases
“It has consistently been held that, having regard to the above matters the
court may dismiss a claim against a defendant by reason of the delay in
bringing it ‘whether culpable or not’, because a long lapse of time will
‘necessarily’ create ‘inequity or injustice’, amount to ‘an absolute and
obvious injustice’ or even ‘a parody of justice’.”
This new realism may be what Clarke J. is mindful of when he proposes (in
Stephens v. Paul Flynn Limited, Unreported 28th April, 2005) a new rigour:
“The weight to be attached to various factors in the assessment of the balance
of justice may need to be significantly re-assessed and adjusted in the light of
the conditions now prevailing. Delay which would have been tolerated may
now be regarded as inordinate. Excuses which sufficed may no longer be
accepted. The balance of justice may be tilted in favour of imposing greater
obligation of expedition and against requiring the same level of prejudice as
heretofore.”
This reads well. But it is only on reflection that it occurs to the reader
that there is some new factor at play here: else, why would what was excusable now
be inexcusable or what was not prejudicial, prejudicial. The tightening up of the
standards which the Court will accept signals that the Court has an “agenda”. The
Court is no longer concerned only with the interests of the parties in the instant case,
it has set out to reform and improve litigation standards generally. The balance of
justice, more broadly viewed, involves achieving speedy dispute resolution and,
unpleasant though it may be, it is necessary to impose effective sanctions in some
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cases if overall standards of litigation efficiency are to improve. The Court has it
appears too often pulled its punch. And modern litigation often has a commercial or
insurance reality. Litigation is not just about justice. It is about risk allocation,
“laying off” and indemnities. It is about rolling the dice on weight of evidence, on
discovery, on judicial discretion. Litigation is a business. Businessmen understand
rules and parameters. They prefer certainty to gambling on the odds. There is
nothing unjust in business about a clear cut off point if it’s known in advance. What’s
no longer a claim against one insurance company becomes a claim against another.
Time limits will be respected or hard choices will be made. There is a perceived need
to root out practices which proliferated because the Court hesitated in the past to
impose the ultimate sanction.
So it appears that the Court may now dismiss proceedings not only when due
process prejudice is anticipated, but also where, even without such prejudice, the
delay is unacceptable. In O’Connor v. Player & Sons 2004 IEHC 99 Quirke J. said:
“A defendant, faced with a claim, is entitled to be provided with full details of
the wrong alleged and the full nature and extent of the injury and loss
allegedly sustained, so that the validity of the claim and the extent of the
damages sought can be assessed. This must be done within a reasonable time.
Thereafter a defendant is entitled to the trial with reasonable expedition.”
And in Gilroy v. Flynn 2004 IESC 98 Hardiman J. said in the Supreme Court:
“The courts have become ever more conscious of the unfairness and increased
possibility of injustice which attach to allowing an action which depends on
witness testimony to proceed a considerable time after the cause of action
accrued. Thirdly, following such cases as McMullen v. Ireland [ECHR 422
97/98. 29 July, 2004] and the European Convention on Human Rights Act,
2003 the Courts, quite independently of the action or inaction of the parties,
have an obligation to ensure that rights and liabilities, civil or criminal, are
determined within a reasonable time.
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These changes, and others, mean that comfortable assumptions on the part of
a minority of litigants of almost endless indulgence must end. In particular,
the assumption that even grave delay will not lead to the dismissal of an action
if it is not on the part of the plaintiff personally, but of a professional adviser,
may prove an unreliable one”.
The European Convention on Human Rights is now part of domestic Irish
Law. The case law from the European Court illustrates Article 6(1) in practice.
Interestingly, the Article 6 concern is with expedition and not specifically with
prejudice. The case law in the European Court of Human Rights includes four (at
least) cases regarding delays in civil litigation and the provision of Article 6(1) that
“In the determination of his civil rights and obligations …, everyone is entitled to a …
hearing within a reasonable time by (a) … tribunal …”
In Bucholz v. Federal Republic of Germany 3 E.H.R.R. 597 (1981) the period
was from July, 1974 to April, 1979. The Court said:
“Although proceedings are governed by the principle of the conduct of
the litigation by the parties … they do not dispense the judicial
authorities from ensuring the trial of the action expeditiously.”
In this case the delays attributable to the competent courts did not exceed a reasonable
time within the meaning of Article 6(1).
In Zimmerman and Steiner v. Switzerland 6 E.H.R.R. 17 (1983) the Court
noted that “only delays attributable to the State may justify a finding of a failure to
comply with the ‘reasonable time requirement’”. The proceedings took from April,
1977 to October, 1980. The headnote says that “The Convention places a duty on
States to organise their legal systems so as to allow the courts to comply with Article
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6(1)”. The Court found the lapse of time excessive and ruled that there had been a
violation.
In Guincho v. Portugal 7 E.H.R.R. 223 (1984) the length of proceedings up to
judgment of three years, ten months was held to be prima facie unreasonable. The
plaintiff had been injured in a road accident in 1976 and commenced proceedings in
December, 1978. He did not obtain judgment until October, 1982. “Two periods of
almost total inactivity related to procedural acts of a purely routine character”.
Portugal contended that the judicial workload had increased enormously following the
restoration of democracy in April, 1979. “The Court would once again draw
attention to the extreme importance of the ‘reasonable time’ requirement for the
proper administration of justice”. A violation of Article 6(1) was found and damages
were awarded.
In Scopelliti v. Italy 17 E.H.R.R. 493 (1993) the Court faulted Italy for the
delay in proceedings which commenced in December, 1980 and terminated in March,
1989, holding that the judge had responsibility during the investigation stage
(including a 16 month wait for an expert’s report), and also during the following three
years, two months which involved “consent” adjournments (the real reason being the
changes in the composition of the chamber). Signora Scopelliti had been awarded
212 million lire by the Italian Court for, in effect, land compulsorily “purchased” for
road widening. The Court found a violation of Article 6(1) but did not award
damages.
The Irish Court considers all these applications, ultimately, having regard to
the “balance of justice”. Actual due process prejudice will usually be enough to
persuade the Court to halt the proceedings. The Convention is not, per se, a due
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process factor. Clearly, it must now be placed on the scales. Other factors unrelated
to due process have featured in the “Balance of Justice” analysis, such as
(a)
The nature of the claims (per Finlay Geoghegan J., in Manning v. Benson &
Hedges 2004 IEHC 316, also O’Flaherty J. in Primor, and in Daly v.Limerick
Corporation (Supreme Court, Unreported, 7th March, 2002) Keane C.J. said
“It seems to me and I think all the authorities bear this out that in exercising a
judgment in that regard, the Court has to consider what sort of case they are
dealing with.” (I am not unsympathetic to the plaintiff in this case, but feel he
almost certainly cannot succeed: see my decision in Grant v. Roche Products
(Ireland) Ltd & Ors., (Unreported, 25/06/03).
(b)
The “prejudice” to a defendant arising simply from the fact that it is a
defendant: Primor, O’Connor v. John Player, Southern Mineral Oil Ltd (in
Liquidation) v. Cooney, [1997] 3 I.R. 549 “Prejudice suffered by particular
defendants in having the action hanging indefinitely over their heads”. (per
Keane J. at p. 564)
(c)
That the delay has caused the defendant to lose an opportunity to seek an
indemnity or contribution, Silverdale v. Italiatour Ltd., [2001] 1 I.L.R.M. 464 ,
and
(d)
Whether the fault was that of the lawyer rather than the client. Note that
Clarke J. (in Rogers v. Michelin, Unreported, 28th June, 2005) arrives at an
important conclusion, namely that:
“In a case where the entire responsibility for delay rests upon a professional
advisor the court can and should take into account the fact that the plaintiff
may give an alternative means of enforcing his or her rights”.
In the same case, Clarke J. observed that:
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“it does not seem to me that is proper for the court to include in the balance in
the exercise of its discretion a test which amounts to a consideration of the
deepness of the pockets of the respective parties”,
And in Keogh v. Wyeth Laboratories Inc & Anor (Unreported, 12/7/05,
McCracken J.) the Supreme Court said:
“The fact that the appellants may be large multi-national pharmaceutical
companies does not mean that they are not entitled to a consideration of
fairness by the Court, nor that any prejudice suffered by them should be
ignored”.
The Court cannot lightly adopt a position which would bring Ireland into
possible conflict with the Convention. Ireland has legislated to incorporate the
provisions of the Convention into domestic Irish law. Ireland itself (and its Court)
must comply with the law or face the consequences. The plaintiff has urged the Court
to consider that even if allowing the case to proceed was unambiguously in breach of
the Convention, this is not a matter to be taken “on board” at this stage but could be
left for another day, and another forum. The plaintiff, in other words, should be
allowed to prosecute the case and recover damages if successful, even though Ireland
might have to pay damages to the defendant at some future date. One can readily
appreciate why the plaintiff might so submit, but the submission really hardly merits
any serious consideration. The law is the law.
The Court is of the view that the present application cannot be ruled on
without considering whether allowing the proceedings to continue would involve an
infringement of Article 6 because the incorporation of the European Convention on
Human Rights in 2003 involved giving litigants on both sides of the litigation, an
entitlement to a hearing “within a reasonable time”. To copperfasten that right the
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Court can either set up multifaceted enquiries in each case as to what was reasonable
(the behaviour of the parties being disregarded for this purpose) or it can set a
“reasonable” time frame and stick to it. The time frame could be fixed by reference to
a deadline beyond which due process would be ipso facto impossible, or it could be a
(tighter?) time frame set by the Court to ensure expedition, irrespective of the
likelihood of “prejudice”. Article 6 of the European Convention seems to demand the
latter.
Cases should simply fall out of the system at a certain point, and parties can
then dispute the causes and consequences of this in other proceedings if they feel it
worthwhile to do so.
But is the adoption of a rule of thumb cut off point consistent with the oft
expressed principle that the decision on an (inordinate and inexcusable) delay should
be determined on the balance of justice? Doesn’t the balance have to be assessed in
each case? Certainly each case has its own mix of evidential difficulties which impact
on due process. But actual prejudice in that sense is no longer the only factor to be
considered by the Court. Prejudice in the sense in which that word describes all the
pressures, costs and uncertainties associated with being a defendant, is a factor which
becomes unacceptable (per the Human Rights Convention) when the case is
“unreasonably delayed”. It is this form of prejudice which can be predicted with
reasonable accuracy. The Irish Courts have acknowledged it at all times since Primor.
Now the Convention requires us to decide cases on the basis of such prejudice even in
the absence of actual due process prejudice.
For personal injuries, the Civil Liability and Courts Act 2004 now provides
that the Limitations Period is two years but, more importantly for this analysis, it also
provides that the initiating summons must contain all of the materials descriptive of
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the claim as hitherto had been set out in a Statement of Claim. This fixed yardstick
for fatal delay is also novel in that it measures the permissible time frame for
Statement of Claim type specification of the claim from the date of accrual. We have
been used to dealing with dismiss motions focussing on delay from the date of issue
of the Summons (indeed, sometimes from date of service!). Clearly, the legislature’s
concern for the defendant’s position is to achieve a cut off point - a certainty - no
more than two years from an accident.
I see no reason for the Court to have time frames which do not echo the
legislation. It would difficult to argue that “delay” for the purposes of Article 6 of the
Convention ought to be measured by some entirely different yardstick. In short,
updating Rainsford/Primor to twenty-first century litigation conditions, I propose to
regard a delay of three years from the accrual of the cause of action as a prima facie
breach of the defendant’s rights under the Convention, no matter what the excuse is.
The plaintiff’s cause of action in this case accrued in 1998 (or perhaps a little
later). Consequently, as more than three years has elapsed I am refusing the request
for an extension of time for the delivery of the Statement of Claim.
By way of postscript I have to record that the defendants have pointed out that
they might have applied sooner for a dismiss for want of prosecution except that the
rule now requires, as a preliminary step to such an application, that the plaintiff be
written to and afforded an opportunity to deliver a (belated) Statement of Claim with
the consent of the defendant. They did not wish to open such a window of
opportunity for the plaintiff, and cannot be faulted for that. It follows that their failure
to apply for a dismiss should not be weighed against them or as some sort of basis for
estoppel or what has come to be referred to as “countervailing circumstances” in the
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balance of justice, to be balanced against the plaintiff’s inordinate and inexcusable
delay. Perhaps the rule needs to be looked at again.
Approved:
Master of the High Court