Derek Crowley (plaintiff) v Roche Products (Ireland) Ltd, F. Hoffman-La Roche Limited, Roche Holdings Ltd, R.P. Scherer Ltd, Roche Products Ltd, The Irish Medicines Board and Fergus Lyons (defendants)
Practice and procedure - Statement of claim - Extension of time to deliver statement of claim - Dismissal for want of prosecution - Inordinate and inexcusable delay - Balance of justice - Prejudice - Due process - Entitlement to hearing within a reasonable time - Whether time for delivery of statement of claim should be extended - Rules of the Superior Courts, O. 122, r. 7 - European Convention on Human Rights, Art. 6(1)
The High Court (Master of the High Court, Edmund Honohan); decision delivered on January 20th, 2006.
A plaintiff's application for an extension of time for the delivery of a statement of claim and a defendant's application for a dismissal of a plaintiff's claim for failure to deliver the statement of claim were two sides of the same coin. The same legal principles governed the outcome. 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". A delay of three years from accrual of the cause of action in the delivery of a statement of claim was prima facie a breach of the defendant's entitlement to a hearing within a reasonable time pursuant to Article 6 of the European Convention of Human Rights.
The Master of the High Court so held in refusing the plaintiff's application for an extension of time for the delivery of the statement of claim.
Carol O'Farrell, BL for the plaintiff; David Barniville, BL for the first to sixth defendants; and Hugh Kennedy, BL for the seventh defendant.
The Master stated that failure to meet procedural deadlines set by the Rules of Court necessitated an application to court for leave to proceed notwithstanding the infringement and the decision was at the discretion of the court. Not unsurprisingly, the court often proceeded 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 the party's legal team. If it was a culpable delay, there was the inevitable "blame game". But although the court might seem often tempted to penalise the culpable party by refusing the application, the final decision always appeared to turn on the interests of justice. The court's patience might have been sorely tried but in the interests of justice it appeared to be inexhaustible. Culpable though the applicant's dilatory conduct of the proceedings may have been, unless the respondent could establish difficulties which imperiled a fair trial - which "put justice to the hazard" - the court would accede to the applicant's plea for forbearance. It was a truism to say that to halt a plaintiff's case was prima facie unjust. It was also unarguable that a defendant which had a good defence would not lose the case no matter when the trial occurred. Taken together, more injustice would occur if a culpable party was let "off the hook".
The Master continued that the formula in Primor plc v Stokes Kennedy Crowley & Ors 2 IR 459 ("Primor") acted as a filter.
If the delay (albeit in breach of the Rules) was not "inordinate" or even if inordinate was "excusable", the opposing party should be realistic and simply consent to the deadline extension requested. But even if it was both "inordinate" and "inexcusable", the court might still permit the action to proceed if the balance of justice so required.
The Master said that it hardly seemed necessary to point out that the Rules of Court were determinative of nothing.
A court of full jurisdiction, such as the Irish High Court, could settle rules for the efficient disposition of its resources and to try to impose some practical disciplines on litigants who came before it but "when push came to shove" and justice demanded it, breach of no mere Rule of Court should be fatal to a meritorious cause of action or a bona fide defence.
The Master explained how proceedings were initiated by plenary summons in Irish law and stated that the Rules of Court stipulated that a Statement of Claim be delivered within 21 days of receipt of the appearance. It was then 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. A defendant's such application and a plaintiff's application to extend the deadline were two sides of the same coin!
Precisely the same legal principles governed the outcome. The Rules of Court provided at O. 122, r. 7 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".
The Master stated that this application arose precisely in such circumstances. Having issued his plenary summons on August 31st, 2001, the plaintiff missed the deadline set out in the Rules of Court for the delivery of his statement of claim.
The seventh defendant declined consent to the late filing of the statement of claim and the plaintiff now applied to court for an extension of time for delivery of the statement of claim.
A draft statement of claim was exhibited and the plaintiff's history was deposed to on affidavit. The plaintiff said that a tablet was prescribed for him in 1992 when he was aged 16 for treatment of severe acne and whilst on the treatment he suffered deterioration in mood, anxiety levels and obsessive compulsive behaviour.
The rule cited above was silent as to the considerations which would influence the outcome of the application, but the reported case law in regard to procedural delays, and, in particular, cases in which the court dealt with applications by defendants for dismissal of a plaintiff's claim on grounds of failure to deliver a statement of claim, fell to be considered as guidance.
In Primor the Supreme Court 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. 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? What if the delay was contributed to by the conduct of the other party? What sort of excuse would be acceptable? 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?
The Master expressed the view that the addition of the adjective "inexcusable" 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 did not mean that the excuse offered was unacceptable or disclosed actionably unprofessional standards: taken literally it meant that no excuse was acceptable. One could readily imagine the sort of delay for which no excuse would be acceptable. However, citing Anglo Irish Beef Processors v Montgomery 3 IR 510, the Master stated that instead of treating "inexcusable" as a further simple measure of extraordinary delay, the courts had usually embarked on an examination of the circumstances disclosed - what (or who) was to blame for the delay. The Master stated that in his view the blame game was unedifying and in uncharted territory: it involved 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. all of which had to be summarily decided.
The consequences of adverse findings were usually so far-reaching that the court would prefer to reluctantly permit the case to proceed: summary justice was notan attractive option.
The Master stated that in recent years the Primor formula had reached breaking point. It had not stood the test of time.
Surely, the only question to be determined was not whether the excuse offered was good or bad, but whether the delay prejudiced a fair trial. A decision on due process - what was likely to be the effect of the delay? - did not need any apportionment of blame. The Master observed that there was no mention of "excuses" in the Supreme Court's judgment in Dowd v Kerry County Council IR 27 and noted the dicta of McCracken J. in Whearty and Ors. V ACC and Ors (unreported, High Court, McCracken J., October 1st, 1997) and Hardiman J. in J. O'C v DPP 3 IR 478 at 500.
He continued that this new realism may have been what Clarke J. was mindful of when proposed in Stephens v Paul Flynn Limited (Unreported, High Court, Clarke J., April 28th, 2005) a new rigour and a tightening of the standards which the court would now accept.
The Master stated that the court was no longer concerned only with the interests of the parties in the instant case, it had set out to reform and improve litigation standards generally. The balance of justice, more broadly viewed, involved achieving speedy dispute resolution and, unpleasant though it might be, it was necessary to impose effective sanctions in some cases if overall standards of litigation efficiency were to improve. The court had, it appeared, too often pulled its punch. And modern litigation often had a commercial or insurance reality. Litigation was not just about justice. It was about risk allocation, "laying off" and indemnities. Litigation was a business and businessmen understood rules and parameters.
They preferred certainty to gambling on the odds. There was nothing unjust in business about a clear cut-off point if it was known in advance. There was a perceived need to root out practices which proliferated because the court hesitated in the past to impose the ultimate sanction.
The Master continued that it therefore appeared that the court might now dismiss proceedings not only when due process prejudice was anticipated but also where even without such prejudice the delay was unacceptable.
The Master cited Quirke J. in O'Connor v Player & Sons 2004 IEHC 99 and the Supreme Court in Gilroy v Flynn 2004 IESC 98 where Hardiman J. stated that the changes meant that "comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end".
The Master next observed that the European Convention on Human Rights was now part of domestic Irish law. Interestingly, Article 6(1), which guaranteed the right to a "hearing within a reasonable time", was concerned with expedition and not specifically with prejudice. The Master considered four judgments of the European Court of Human Rights regarding delays in civil litigation and Article 6(1).
The Master stated that the Convention was not, per se, a due process factor and that other factors unrelated to due process had featured in the "balance of justice" analysis such as: (a) the nature of the claims; (b) the prejudice to the defendant arising simply from the fact that it was a defendant; (c) that the delay had caused the defendant to lose an opportunity to seek an indemnity or contribution; and (d) whether the fault was that of the lawyer rather than the client.
The Master stated that the court could not lightly adopt a position which would bring Ireland into possible conflict with the Convention. Ireland had legislated to incorporate the provisions of the Convention into domestic Irish law. The present application could not 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".
The Master stated that Article 6 seemed to require a time-frame set by the court to ensure expedition, irrespective of the likelihood of "prejudice".
Cases should simply fall out of the system at a certain point and the parties could then dispute the causes and consequences of this in other proceedings if they felt it worthwhile to do so.
The Master posed the question whether the adoption of a rule of thumb cut-off point was consistent with the oft-expressed principle that the decision on an (inordinate and inexcusable) delay should be determined on the balance of justice? Didn't the balance of justice have to be considered in each case? The Master explained that while each case had its own mix of evidential difficulties which impacted on due process, actual prejudice in that sense was no longer the only factor to be considered by the court. Prejudice in the sense in which the word describes all the pressures, costs and uncertainties associated with being a defendant, was a factor which became unacceptable (per the European Convention on Human Rights) when the case was unreasonably delayed. The Irish courts had acknowledged it at all times since Primor. Now the Convention required the courts 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 provided that the limitation period was two years and also provided that the initiating summons had to contain all of the materials descriptive of the claim as hitherto had been set down in the statement of claim.
Clearly, the legislature's concern for the defendant's position was to achieve a cut-off point - a certainty - no more than two years from an accident.
The Master stated that he could see no reason to have time-frames which did not echo the legislation and continued that he proposed 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 was.
The plaintiff's cause of action in this case accrued in 1998 (or perhaps a little later). Consequently, the Master stated, as more than three years had elapsed he was refusing the request for an extension of time for the delivery of the Statement of Claim.
Solicitors: Ivor Fitzpatrick & Co. (Dublin) for the plaintiff; McCann Fitzgerald (Dublin) for the first to sixth defendants; and Hayes & Co. (Dublin) for the seventh defendant.
Rory White, barrister