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Cite as: [2004] IESC 11, [2004] 2 ILRM 19, [2004] 1 IR 374

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Irish Family Planning Association v. Youth Defence & Ors [2004] IESC 11 (4 February 2004)


     
    THE SUPREME COURT

    S.C. NO. 201 OF 2001

    Denham J.

    Hardiman J.

    McCracken J.

    IRISH FAMILY PLANNING ASSOCIATION

    PLAINTIFF/RESPONDENT

    AND

    YOUTH DEFENCE,
    MAURICE COLGAN,
    NIAMH NIC MHATHUNA, AND
    PATRICK MAHONY

    DEFENDANTS/APPELLANTS

    [Judgments delivered by Denham J. & McCracken J.; Hardiman J. agreed with both judgments]

    Judgment delivered on the 4th day of February, 2004 by Denham J.

    1. Appeal

    This is an appeal by Maurice Colgan and Niamh Nic Mhathuna, the second and third named defendants, hereinafter referred to as the defendants, from the judgment and order of the High Court (Smyth J.) delivered on 25th June, 2001 and perfected on 3rd July, 2002 which enlarged the time for the delivery of the statement of claim on the defendants and set aside the order made by the Deputy Master of the High Court on the 3rd May, 2001. The Irish Family Planning Association is the plaintiff and is hereinafter referred to as the plaintiff.

    2. Procedural Issue

    The appeal raises an issue on procedure. Benedict Floinn, B.L., who appeared on behalf of the defendants, submitted that there was no issue of fact in the appeal, that at issue was a question of law. Counsel submitted that when an applicant in a motion such as this comes before any court there is an onus on that applicant to place on affidavit an explanation of why the jurisdiction sought to be invoked had not been exercised, i.e. in this case why the statement of claim had not been delivered within time, and that the applicant must put before the court sufficient material to justify the invocation of the jurisdiction. On that legal issue he informed the court that he had searched in the Rules, Courts Acts and cases but that he could not find any explicit statement of the law, other than Hughes v. Hughes [1990] N.I. 295 which was the closest precedent.
    On the other hand, Colman Fitzgerald, S.C., counsel for the plaintiff, submitted that the High Court judgment was correct, that the test to be applied is as set out in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and if not then O'Domhnaill v. Merrick [1984] I.R. 151, applies, as does Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561.

    3. Facts

    Thus the facts of the case are not in issue and are as follows. On the 8th March, 1999, the plaintiff obtained an interim injunction against the defendants (amongst others). On the 9th March, 1999, the plenary summons was issued, the parties being those named in the title of this case. The claim in the plenary summons is that:
    "The Plaintiff's Claim is as against the defendants and each of them, their servants or agents and in particular as against the second and third named defendants as one of and as representing the first named defendants and is for:
    (a) Damages for trespass,
    (b) An injunction,"

    On the 11th March, 1999 the plaintiff obtained an interlocutory injunction against the defendants restraining them from, pending the trial of the action, trespassing on the plaintiff's property, watching or besetting or carrying on any demonstration or manifestation near or adjacent to the named premises, obstructing or attempting to obstruct or harass persons going into and leaving such clinics, and intimidating or molesting or otherwise interfering with Tony O'Brien and/or any other member of the association. No further step was taken until a motion for attachment and committal was brought by the plaintiff before the High Court on the 11th August, 1999. A Memorandum of Appearance was entered on the 18th August, 1999, by a solicitor for the defendants. The form of the appearance was amended so that it purported to be an appearance to the notice of motion (the words 'Originating Summons' having a line placed through them). On the 18th August, 1999, the High Court made an order, the defendants undertaking to abide by the terms of the order of the 11th March, 1999. Maurice Colgan appealed the order of the 18th August to the Supreme Court. He appeared in the Supreme Court in person. His solicitor had not come off record. Apparently his solicitor took the view that she represented him only on the motion. However, no formal order was sought discharging her. Mr. Colgan succeeded in his appeal to the Supreme Court on the 16th October, 2000. He then sought to discharge the order of attachment of the High Court. The matter of the solicitor being on record then arose. In November, 2000 a notice of discharge of solicitor was filed. Mr. Colgan then brought a motion in the High Court to have the injunction discharged. On the 29th January, 2001, the solicitor was reappointed as solicitor for Mr. Colgan. On the 12th February, 2001, the High Court ordered that the injunction of the 11th March, 1999 as against Mr. Colgan be discharged, which order was not appealed.
    By notice of motion dated the 19th February, 2001, the plaintiff sought an order pursuant to O. 63, r. 1 (5) of the Rules of the Superior Courts enlarging the time for the delivery of the statement of claim on the defendants. On the 3rd May, 2001, the Deputy Master of the High Court refused the application. The plaintiff appealed to the High Court. On the 25th June, 2001, the High Court determined that the order of the Deputy Master be set aside and time was extended for the service of the statement of claim by one week. Against that order the defendants filed an appeal on the 20th July, 2001.

    4. High Court

    There was no written judgment of the High Court. Counsel for the plaintiff and defendants drafted separate notes of the judgment. There was delay in doing this. On the 7th May, 2003, on the drafts being before Smyth J., he noted:
    "It is now almost 2 years since the motion was signed and so long since the matter was before me that I must rely on counsel's note. There being no dispute on what I decided I have signed each and it must rest at that."
    It was agreed by counsel that the learned High Court judge held that there had been enough procedural shadow-boxing in this case, and that it was a matter that should be brought to trial as soon as possible. The learned trial judge said that he did not want to get into the merits of the case. He stated that it sufficed to say that the plaintiff's claim in the statement of claim sought damages and an injunction, which was granted; that then the injunction was discharged; that that is distinguishable; that the defendants were sometimes represented and sometimes not; and that they were playing ducks and drakes. The learned trial judge was satisfied as per paragraph 16 of the grounding affidavit. He held that the plaintiff could have served the statement of claim personally but that then the solicitor would have complained. He stated that the parties should get on with the business of the case. He said that the Supreme Court has laid out the test in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. He made an order extending the time for the delivery of a statement of claim, and three weeks thereafter for the filing of the defence. He stated that the case should get on.
    The explanation in paragraph 16 of the affidavit of Michael Farrell of the 19th February, 2001, is as follows:
    "I say that the Plaintiff is anxious and desirous of prosecuting the within proceedings and that a Statement of Claim has been prepared on behalf of the Plaintiff herein. I say that it was unclear how the said Statement of Claim should be delivered given the confusion over the representation of the Second and Third named Defendants or even whether the said Defendants required delivery of a Statement."
    The reason for the significant delay between the order of the High Court and this appeal was not explained.

    5. Grounds of Appeal

    The grounds of appeal set out in the notice of appeal of the defendants are as follows:

    "(1) That the learned trial judge misdirected himself in law in applying the case of Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 146 to an application to extend the time for the delivery of a statement of claim by the Plaintiff/Respondent herein.
    (2) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the fact that the onus was on the Plaintiff/Respondent to establish that it was right and proper for the time limited for the delivery of the statement of claim to be extended.
    (3) The learned trial judge misdirected himself in law in that he failed to have any or any proper regard to the Rules of the Superior Courts.
    (4) The learned trial judge failed to have any or any due regard for the fact that the Plaintiff/Respondent had withheld the delivery of a statement of claim for an improper purpose and/or had been guilty of inexcusable and inordinate delay and an abuse of the process of this High Court by failing to deliver the said statement of claim.
    (5) The learned trial judge misdirected himself in law/or in fact in that he failed to accord any or any proper weight to the fact that the issue of whether the Plaintiff had been guilty of inexcusable and inordinate delay in or about the delivery of the said statement of claim was res judicata by reason of the judgment of Mr. Justice Lavan delivered on the 12th February, 2001 which judgment discharged an interlocutory injunction against the Second Named Defendant/Appellant on the grounds that the Plaintiff/Respondent was guilty of inordinate and abuse of process of the court in failing to bring the substantive proceedings to trial.
    (6) The learned trial judge erred in fact and acted contrary to the balance of the evidence of finding that the Plaintiff/Respondent put before the Court any or any proper reason for the failure to deliver a statement of claim within the period provided for in the Rules of the Superior Courts.
    "

    6. Order 63 Rule 1 (5)

    This is an application under O. 63 r. 1 (5) of the Rules of the Superior Courts for an extension of time within which to file the statement of claim. The said rules states:
    "In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following orders:-
    (5) An order for enlargement of the time for doing any act or taking any step in any action or matter."

    7. Submissions

    Counsel for the defendants submitted that the learned High Court judge erred. He submitted that (a) when an applicant comes before a court there is an onus on that applicant; (b) that the applicant must place before the court sufficient material to justify the invocation of the jurisdiction, and (c) that thereafter the court weighs the explanation. He submitted that the High Court erred in casting the onus on the defendants, and that many issues may arise on the explanation. However, in this case (c) did not arise as the plaintiff did not accept where the onus lay and did not advance an explanation.
    Opposing the appeal, counsel for the plaintiff submitted that the High Court had not erred. He submitted that the test was whether there had been inordinate and inexcusable delay and that the onus was on the person opposing the motion. If there was inordinate and inexcusable delay then it was for the court to weigh the relevant matters.

    8. Difficulties

    However, during the submissions, responding to queries from the court, it became clear that there were further difficulties. The relevant portion of the plenary summons was the claim for "damages for trespass." The statement of claim (which was served within a week of the High Court order) contains no allegation against the second and third named defendants. It sets out that the first named defendant is an unincorporated body, that the second named defendant is a member of the first named defendant, that the third named defendant is also a member, that on the 6th March, 1999, a group of about twelve members of the first named defendant unlawfully entered without authority and occupied a clinic premises of the plaintiff. There is no allegation that the defendants were in this group. There are other allegations but they do not relate to the defendants. Counsel for the plaintiff accepted that there were no allegations against the defendants in the statement of claim, and that on the face of the document it did not allege that the defendants had breached the law. Counsel for the plaintiff submitted that this was merely an application for an extension of time within which to serve the statement of claim and referred to powers under the rules of court by which a statement of claim could be amended.

    9. Decision

    This is an application for an extension of time within which to serve a statement of claim on the defendants. There is no statement alleging a wrongful act of the defendants in the statement of claim before the court. The fact that there are powers in the rules to enable applications to amend a statement of claim is not sufficient to cure this difficulty. This is so even though it could be submitted that there was no appearance and that pursuant to O. 28 r. 2 such amendment might be made without motion. The fact is that the plaintiff has brought this motion and continues to pursue its objective. It is notable that it is a situation also where the defendants could consider applying to the court to disallow the amendment under O. 28 r. 4.

    The statement of claim does not disclose any actionable case against the defendants. It is not sufficient to allege guilt by association, to allege that Youth Defence committed the actions and that the defendants are members of Youth Defence. There are no facts alleged against the defendants which give rise to a cause of action. Indeed, counsel for the plaintiff stated that it would not be the case against the defendants that they entered the premises.

    The case relates to past events. The pleadings allege wrongful acts in 1999. The injunction against the second named defendant has been discharged. The third named defendant gave an undertaking. The remaining issue on the summons is trespass. It is now clear that there are no allegations that the defendants entered the premises of the plaintiff. The fact that they were members of Youth Defence is not sufficient to base such a claim. There is no claim of conspiracy. While counsel for the plaintiff accepted that the statement of claim was defective, he submitted that that was not the issue that it could be amended. I do not accept this submission. The issue is whether the High Court erred in extending time to the plaintiff within which to serve the statement of claim before the court.

    The circumstances of this case are such that because of the actions of the defendants it could be argued that there has been no appearance. In such a situation the plaintiff would not be out of time within which to serve the statement of claim. Consequently, there would be no need to seek to extend time or seek a court order to extend time. However, counsel for the plaintiff has continued to seek the extension of time within which to serve the statement of claim.

    I am satisfied that on an application before a court to extend time for the service of a statement of claim the court has an inherent jurisdiction to control the procedure and to dismiss an application when the justice of the case so requires. There is an onus on an applicant to present a statement of claim in an appropriate form. A moving party has such a basic onus in all applications. In some situations an onus may then shift to the defence or respondents. However, there is a fundamental onus on an applicant to present an application in appropriate form and with the relevant facts and documents. When the application relates to an application for an extension of time within which to serve a statement of claim, a draft statement of claim should be exhibited. A court in considering the application may also consider the draft statement of claim. The statement of claim should contain the material facts upon which the plaintiff relies to establish a cause of action. If the statement of claim discloses no cause of action against the defendants then the court has and should exercise an inherent jurisdiction to regulate its proceedings. In so exercising its jurisdiction a court may not order the extension of time for the service of a document which is defective on its face. It would be contrary to common sense and to reason for a court knowingly to order that time be extended to enable the service of a statement of claim which on its face shows no cause of action.

    The lack of a cause of action on the statement of claim was not drawn to the attention of the High Court when dealing with this matter on a busy Monday list. It is the jurisprudence of this court that it is a court of appeal and that issues should first be the subject of legal argument and decision in a court of trial. However, in this case, it is accepted that the statement of claim is defective. I am satisfied that the submission of counsel for the plaintiff that it may be amended in the future is not a ground which saves this application. In view of the fact that the statement of claim is defective, in that it does not contain a cause of action against the defendants, I would allow the appeal and refuse the application to extend time within which to serve the statement of claim.

    In addition, I am of the opinion that when a plaintiff has obtained an interlocutory injunction on foot of a plenary summons it is wholly inappropriate that having achieved the benefit of the equitable jurisdiction of the court the plaintiff should be dilatory in serving the statement of claim. In Hytrac Conveyors v. Conveyors International [1982] 3 All E.R. 415 at p. 417 Lawton L.J. held

    "In this case, as a result of the attempt to get an interlocutory injunction before the delivery of the statement of claim, weeks passed and by the middle of July still no statement of claim had been delivered. This was particularly unfortunate from the point of view of the fourth, fifth, sixth and seventh, defendants, who said that they were on the fringes of the case and did not know what allegations were being made against them at all. As a result of pressure put on the plaintiffs by the defendants, the plaintiffs asked at long last for extension of time in which to deliver a statement of claim. By this time the first seven defendants had applied under Ord. 19, r. 1 for the action to be dismissed on the ground of inordinate delay. Whitford J. granted that application.
    he said:
    'It is not right that the plaintiff should start this action without knowing what form his statement of claim will take until after the interlocutory proceedings are completed. It is very important in a case concerning copyright and breach of confidence that the exact ambit of the plaintiffs' claim be made known and if charges of conspiracy are to be raised it is wholly inappropriate that it be brought in at a later stage if it could properly be pleaded in the first instance.'
    For my part, I agree with that approach. It has to be remembered by all concerned that we do not have in this country an inquisitorial procedure for civil litigation. Our procedure is accusatorial. Those who make charges must state right at the beginning what they are and what facts they are based on. They must not use Anton Piller orders as a means of finding out what sort of charges they can make. They must deliver their statement of claim within the time specified in the rules, unless the court orders otherwise.
    I would refuse the application."
    I also agree with that approach. Those who make charges must state at an early stage what they are and on what facts they are based. And while Hytrac was a case relating to Anton Piller orders, the principles apply equally to situations where an injunction has been granted. As a general principle the rules of court should not be utilised, or facilitated by court orders, to ambush parties. Nor should extensive delay be condoned. And, of course, the court should not facilitate the service of defective documents.

    That decision is sufficient to resolve the appeal. The issues raised by counsel and the references to Rainsford v. Corporation of Limerick [1995] 2 I.L.R.M. 561, O'Domhnaill v. Merrick [1984] I.R. 151, Daly v. Limerick Corporation, unreported judgment of the Supreme Court, Keane C.J. of 7th March, 2000, Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 and Hughes v. Hughes [1990] N.I. 295 while of great interest do not now arise for decision. It has long been the jurisprudence of this court that it will not decide a moot.

    10. Conclusion

    For the reasons given I would allow the appeal and refuse the application to extend time within which to serve the statement of claim.

    THE SUPREME COURT

    Record No: 201/01

    Denham J

    Hardiman J

    McCracken J

    Between:

    Irish Family Planning Association

    Plaintiff/ Respondent

    AND
    Youth Defence, Maurice Colgan, Niamh Nic Mahutna
    and Patrick Mahony

    Defendants/ Appellants

    Judgment of Mr Justice McCracken delivered the 4th day of February 2004.

    _____________________________________________________

    On 8th March 1999 the Plaintiff obtained an interim injunction against the Defendants restraining them from trespassing on certain property of the Plaintiff. On the following day, 9th March 1999, a plenary summons and a notice of motion returnable for 11th March 1999 claiming interlocutory injunctions were issued. The general endorsement of claim on the plenary summons read as follows:-

    "The plaintiff's claim is as against the defendants and each of them their servants or agents and in particular as against the second and third named defendants as one of and as representing the first named defendant and is for:-
    (a) Damages for trespass,
    (b) an injunction."

    The notice of motion came on for hearing on 11th March 1999 in the absence of the Defendants, and in its order of that date the Court deemed good and sufficient the service on the second, third and fourth named Defendants and granted an interlocutory injunction in the following terms:-

    "That the defendants and each of them their servants or agents any member or associate of Youth Defence or any person with notice of the making of this order be restrained pending the trial of this action from
    (A) Trespassing on the plaintiff's property and in particular on any of the clinics operated by the plaintiff at Cathal Brugha Street, Dublin 1 and/or Synge Street, Dublin 2, and/or The Square Tallaght and/or Head Office 16-17 Lower O'Connell Street, Dublin 1.
    (B) Watching, besetting or carrying on any demonstration or manifestation near or adjacent to those premises.
    (C) Obstructing or attempting in any way to obstruct or harass persons going into and leaving such clinics in particular members of the plaintiff's staff and those who seek to avail of the services provided thereon by the plaintiff.
    (D) Intimidating, molesting or otherwise interfering with Tony O'Brien and/or any other member of the Association and/or any other member of staff of the Association by using crude and obnoxious language or otherwise."

    No appearance was entered on behalf of any of the Defendants and on 30th July 1999 the Plaintiff issued a notice of motion seeking an order for attachment and committal against a number of persons including the second, third and fourth named Defendants for alleged breach of the injunction. On 11th August 1999 the matter came before a Vacation sitting of the High Court. Although no appearance had been entered on behalf of the Defendants, Counsel appeared, inter alia, on behalf of the second and third named Defendants and the motion was adjourned for one week.

    On 18th August 1999 a memorandum of appearance was entered at the Central Office by Ms Anne Greene, solicitor on behalf of the second and third named Defendants, although it was never served on the Plaintiff or its solicitor. That memorandum purported to enter an appearance "to the notice of motion dated 30th July 1999", and Counsel instructed by Ms Greene appeared in Court on behalf of, inter alia, the second and third named Defendants. In subsequent correspondence Ms Greene maintained that she did not act for and had no instructions from the second and third named Defendants since 18th August 1999. On that date, the attachment and committal proceedings as against the second and third named Defendants were adjourned generally with liberty to re-enter.

    The second named Defendant, acting in person, appealed to the Supreme Court against the order of 18th August 1999 insofar as it affected him, and on 16th October 2000 the Supreme Court ordered that the notice of motion against the second named Defendant be dismissed and that he recover the costs of the High Court when taxed and ascertained.

    On 17th November 2000 the second named Defendant, again acting in person, issued a notice of motion seeking to set aside a portion of the order for the interlocutory injunction dated 11th March 1999. On 29th January 2001 Ms Greene filed a document which purported to be a "notice of appointment of solicitor" in the Central Office in which she stated she had been appointed solicitor for the second named Defendant. This notice was not served on the Plaintiff. The second named Defendant's motion came before the High Court on 12th February 2001 on which occasion the second named Defendant was represented by Counsel and it was ordered that the order of 11th March 1999 as against the second named Defendant be discharged.

    On 14th February 2001 the Plaintiff's solicitors wrote to Ms Greene seeking consent to late delivery of a statement of claim, which consent was refused, and on 8th May 2001 a motion seeking an order for extension of time was brought by the Defendants before the Deputy Master. The Deputy Master refused to extend the time, and the Plaintiff appealed this refusal to the High Court, which Court on 25th June 2001 set aside the order of the Deputy Master and extended the time for delivery of a statement of claim for a period of one week. The second and third named Defendants have appealed that decision to this Court.

    The Plaintiff has sought to justify its failure to serve a statement of claim on the basis as set out at paragraph 16 of the affidavit of Michael Farrell that:-

    "I say that it was unclear how the said statement of claim should be delivered given the confusion over the representation of the second and third named defendants or even whether the said defendants required delivery of a statement."

    In his ex tempore judgment in the High Court Smyth J severely criticised the actions of the second and third named Defendants in relation to their appearances and commented that "they were playing ducks and drakes". He clearly took the view that the behaviour of the Defendants sufficiently excused the failure to file a statement of claim. While it is of course the privilege of a litigant to conduct some or all of his case personally, and to instruct and withdraw instructions to a solicitor as he thinks fit, nevertheless the actions of the Defendants and their solicitor, and the Defendants' solicitor's complete failure to comply with the rules of Court and failure to serve any of the purported notices, which were filed by her appear to me to have been calculated to confuse. Indeed, on a strict reading of the Rules, neither solicitor nor Counsel on behalf of the second and third named Defendants are properly before the Court, and certainly there appears to have been no appearance ever entered on behalf of the third named Defendant. In my view, the criticisms of the second and third named Defendants by Smyth J were fully justified.

    It has been urged on the Court on behalf of the Defendants that, as the Plaintiff is seeking relief from the Court, there is an onus on the Plaintiff to place on affidavit an explanation of the failure to deliver a statement of claim, and that the Plaintiff must put before the Court sufficient material to justify the exercise of the Court's jurisdiction. On the other hand, the Plaintiff argues that the authorities in fact support the proposition that the onus is on the party opposing the extension of time. They point to the well known case of Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 499 where the principles were set out in the judgment of Hamilton CJ at page 475 where he said:-

    "The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:-
    A The Courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice requires them to do so;
    B It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
    C Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour or against the proceeding of the case."

    Similarly in Rainsford v The Mayor Alderman and Burgesses of the City of Limerick [1995] 2 ILRM 561 Finlay P said at page 567:-

    "Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings."

    The present case differs from both of these cases, however, in that what is before the Court is purely a motion seeking an extension of time to serve the statement of claim. While such a motion was also before the Court in Rainsford, there was also a cross-appeal in that case seeking an order striking out the proceedings for want of prosecution. In the Primor case the situation was wholly different, in that that pleadings had in fact been closed, and there was no question of extending time. It was purely an application on behalf of the defendants to strike out the proceedings for want of prosecution. In such circumstances, the defendant is actively seeking the termination of the proceedings, and insofar as there may be an onus of proof, it is logical that that onus should be on the defendant. In the present case the Defendants are not seeking any relief from the Court, but are simply opposing an application by the Plaintiff for a discretionary remedy which it is open to the Court to grant.

    I think that perhaps the phrase "onus of proof" is an unfortunate one where a discretionary remedy is being sought. This motion is not one in which a plaintiff has to prove facts which, if successfully proved, will ensure a verdict in its favour. There are no facts in dispute in this motion. This is a case in which a plaintiff puts such facts as it thinks fit before the Court, and the Court then considers, not whether the plaintiff has proved its case, but whether as a matter of discretion the order sought by the plaintiff should be granted. I prefer the reasoning of the Northern Ireland High Court in Hughes v Hughes [1990] NI 295 where Carswell J said at page 498:-

    "In Smith v Secretary of State for the Environment an appeal against a planning enforcement notice was filed 27 days after the expiry of the time of 28 days prescribed by the rules for an appeal to the High Court. Some months later the applicant's solicitors made an application to extend the time. The grounding affidavit sworn by the applicant's solicitor gave a recital of the passage of time divided into a series of periods which elapsed between the taking of various preparatory steps by the applicant's solicitors and counsel. No explanation at all was given in the affidavit for allowing the matter to run out of time, and the court was left unaware whether the solicitor knew that there was a time limit, or if so what it was, or whether his clients did not give him firm instructions to proceed until too late, or what the reason was for the delay. Glidewell LJ said in the course of his judgment:
    'Accordingly in my view the first and essential criterion for the exercise of discretion to extend time is not satisfied in this case. There is no explanation and therefore there is no material upon which the learned Judge could have exercised his discretion to extend the time.'

    The Court of Appeal therefore held that it was not necessary to go into the other arguments about the weighing of the several factors or the balancing of prejudice.

    If Glidewell LJ intended to say in this passage that where no reason or excuse is given for the delay the Court cannot exercise its discretion in his favour, then I should have some difficulty in accepting the proposition in such a bald form. It may be noted that in Ratnam v Cumarasamy no material of any kind upon which the court could weigh any factors for and against the application was placed before the court. I doubt therefore whether it would be right to rely upon Lord Guest's remarks in that case as authority for the proposition that an application is ruled out in limine if no explanation for the delay is given, even though there is other material from which the court may draw conclusions about other factors."

    In fact in this case an explanation of sorts was given by the Plaintiff in paragraph sixteen of the Plaintiff's solicitors affidavit, which is quoted above. It is, in effect, seeking to blame the delay on the actions of the Defendants themselves, and clearly the behaviour of the Defendants is relevant to the exercise of the Court's discretion. Whether it is sufficient to show that the delay has been excusable must be open to question, particularly in the light of the fact that this motion was not brought until the interlocutory injunction had been discharged by order of the Court. However, in my view that is not the basic issue in this case. The approach which the Court should take was set out in a judgment of Henchy J in O'Domhnaill v Merrick [1984] IR 151 at page 157 where he said:-

    "Whether the delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing 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 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."

    In all the authorities which have been cited the Court has examined the nature of the claim which the Plaintiff has sought to put forward as a part of the particular circumstances of each case. In the Primor case O'Flaherty J at page 521 referred to the fact that the plaintiff had little hope of success in making out any plausible case in negligence. In the Rainsford case Finlay P at page 570 said:-

    "What the defendants there seek to have dismissed is no mere trivial or ordinary action but one which is probably vital to the future material prospects of the plaintiff. No action brought by a litigant to the courts should be considered unimportant or trivial if a bona fide cause of action exists. In relation, however, to the exercise of a discretion as to where the balance of justice may lie it seems to me that a material consideration must be the gravity of the claim concerned and the consequences of its dismissal upon the injured claimants."

    In Daly v Limerick Corporation (Supreme Court unreported 7th March 2002) Keane CJ said at page 3 of the unreported judgment:-

    "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 and look at the case as a whole and in that context one inevitably has to ask oneself what exactly the plaintiff's case is in these proceedings. Although it was clothed at one stage as a claim for personal injuries, we are not dealing with a case such as arose in O'Domhnaill v Merrick or Rainsford v Limerick Corporation or Toal v Duignan, in which, unarguably, the plaintiff had suffered serious personal injuries in circumstances where one might perceive possible liability on the part of the defendants. That is clearly a factor which weighs with the court before it ultimately shuts out somebody from their constitional right of access to the courts. In saying that, I am not saying, of course, that this is confined to personal injury cases, although as it happens some of the leading cases have been personal injuries cases. When one looks at this case as pleaded, it appears to be a case in which the plaintiff is essentially claiming that the defendants, Limerick Corporation, failed to exercise in his favour the statutory power, which they undoubtedly enjoy or enjoyed at all events at the relevant times for the purpose of these proceedings, to make a grant of compensation to him, having regard to the fact that he had had to leave this premises as a result of their dangerous and dilapidated state."

    He then went on to examine the strength of that claim, and also whether the claim by its nature ought to have been taken by way of judicial review.

    It is quite clear, therefore, from the authorities that in applications to extend the time for service of a statement of claim, the Court ought to examine the nature of the claim being made by the plaintiff. In the present case, the plenary summons merely claims damages for trespass and an injunction. In fact, pursuant to the order of the High Court, the Plaintiff filed a statement of claim before the notice of appeal was lodged, and that statement of claim is now before the Court. The statement of claim sets out certain events which it is alleged took place on 6th March 1999 whereby certain persons who are members and/or associates of the first named Defendant are alleged to have committed acts of trespass. While it is alleged that the fourth named Defendant was one of those persons, there is no allegation that either the second named Defendant or the third named Defendant were present on this occasion or committed any of the acts complained of. Counsel for the Respondent has now conceded that the second and third named Defendants were not present on the occasion complained of, and did not trespass on the Plaintiff's property. In the light of this, it is not surprising that the interlocutory injunction against the second named Defendant was lifted, and one must wonder whether, if the second and third named Defendants had been represented at the interlocutory hearing, the injunction would ever have been granted. It now transpires that the real case sought to be made against the second and third named Defendants is that, as officers of the first named Defendant, in some way they directed the events of 6th March 1999, and conspired with others to have the trespass take place. It is now over four years since the plenary summons was issued in these proceedings, and this case has never been made on paper by the Plaintiff. Neither the plenary summons nor the statement of claim makes any claim for damages for conspiracy, nor does the grounding affidavit of the Plaintiff's solicitor in this motion.

    The Plaintiff argues that this could be remedied by an amendment to the statement of claim under Order 28 Rule 2, and that in fact it would be entitled as of right to make such an amendment, as the Defendants have not entered any valid appearance. This may well be so, but it is to ignore Order 28 Rule 4, which allows the opposing party in such circumstances to apply to the Court to disallow the amendments. I think it is most unlikely that any Court would allow such amendments in the present case after this length of time.

    Be that at it may, what is now before this Court is an application to extend time to serve a statement of claim which on the face of it does not disclose any cause of action against the Defendants. Even if the delay in serving the statement of claim is excusable in that it is due to the actions of the Defendants, quite clearly the Court could not allow an extension of time to serve a statement of claim which does not disclose a cause of action, and in my view, even if there is a right to amend the statement of claim under Order 28 Rule 2, the Court in its discretion ought not to extend the time so as to allow the Plaintiff to serve the statement of claim that is now proposed on the basis that it may be allowed to mend its hand later.

    I should comment on one of the findings of Finlay P in the Rainsford case where he said at page 567:-

    "Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for dismissing the proceedings."

    While that maybe a comment which is valid in the context of an application to dismiss proceedings, in my view it has no application whatever to an application such as the present to extend the time for service of a statement of claim.

    Accordingly, I would allow this appeal and refuse the application to extend time.


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