High Court of Ireland Decisions

1. This is the Plaintiff's application for an Order pursuant to the provisions of Order 8, Rule 1 of the Rules of the Superior Courts, 1986 renewing the plenary summons in these proceedings dated 6th March 1987 and the Plaintiff also seeks an Order pursuant to the provisions of Order 122, Rule 7 of the Rules of the Superior Courts, 1986 enlarging the time in which the Plaintiff can make such application.

2. In the general endorsement of claim on the plenary summons issued on 6th March 1987 the Plaintiff claims damages for personal injuries, loss and damage sustained by him by reason of the negligence of the Defendant, it's servants and agents at Ematris Rectory, Dartrey, County Monaghan. The factual basis of the Plaintiff's claim is that on 12th March 1984, at a time when he was the Incumbent of the Church of Ireland Parish of Ematris, section of the loft floor of an out-house forming part of Ematris Rectory collapsed under his weight and he fell through the floor and in consequence sustained serious personal injuries. The intended Defendant in these proceedings is the Representative Church Body, which was the legal owner of Ematris Rectory on 12th March 1984, and which I will hereafter refer to as the Defendant.

3. It is common case that the principles to be applied in determining whether the summons issued by the Plaintiff should be renewed are the principles set out by the Supreme Court in Baulk -v- Irish National Insurance Company Limited (1969) I.R. 66, which were explained and applied by the Supreme Court in McCooey -v- Minister for Finance (1971) I.R. 159 and more recently summarised by Barron J. in Prior -v- Independent Television News Limited (1993) 1I.R. 399. In Prior -v- Independent Television News Limited, Barron J., having outlined the facts at issue and the judgment of the Supreme Court in Baulk -v- Irish National Insurance Company Limited , went on to say at page 403:

4. In the instant case, in determining whether the interests of justice are served by renewing summons or by refusing to renew it, it is necessary to consider the protracted history of the Plaintiff's claim to date in some detail. The Plaintiff's former Solicitors were instructed to act on behalf of the Plaintiff in June 1984. They became aware that General Accident Fire and Life Insurance Corporation PLC (General Accident) were insurers of Ematris Rectory and on 23rd July 1984 they wrote directly to General Accident setting out the Plaintiff's claim. Subsequently, Messrs. B. L. Winslow & Sons, a firm of Solicitors practising in Enniskillen, County Fermanagh, by letter dated 9th January 1985 advised the Plaintiff's former Solicitors that the letter of 23rd July 1984 had been forwarded to them and that future correspondence in relation to the claim should be addressed to them. With the letter dated 9th January 1985 Messrs. Winslow sent the Plaintiff's former Solicitors a copy of a letter dated 12th December 1984 in which they had notified the Defendant at its Dublin office of the Plaintiff's claim, which was stated to be against the Select Vestry of Ematris Parish, and of the correspondence between the Plaintiff's former Solicitors and General Accident. The Defendant notified its insurers, the Ecclesiastical Insurance Office PLC, of the Plaintiff's claim but was advised that no indemnity could be available to the Defendant if the Plaintiff instituted proceedings against it because of the fact that clergymen, including the Plaintiff, together with the Defendant were the insured within the meaning of the relevant policy and that, accordingly, the Plaintiff could not be treated as a third party under the policy for the purposes of any claim by him. Having received this information, the Defendant by letter dated 9th July 1985 notified Messrs. Winslow that the Defendant could not involve itself in the claim and repudiated any liability. By letter dated 16th August 1985 to the Plaintiff's former Solicitors, General Accident confirmed that they would indemnify the Select Vestry in respect of any liability they might have or were alleged to have incurred.

5. In September 1985, General Accident nominated Solicitors in this jurisdiction to accept service of proceedings to be brought on behalf of the Plaintiff, to whom I will refer to as the General Accident Solicitors. On 7th January 1986, the Plaintiff's former Solicitors wrote to the General Accident Solicitors querying whether they would be representing the Defendant, the owner of the property concerned in the proceedings, and, as there was a large membership of the Select Vestry, whether one or two nominees would be nominated to represent the Select Vestry in the proceedings. By letter dated 11th February 1986, the General Accident Solicitors suggested that the best course would be to name the Select Vestry as the Defendant and that they would accept service on their behalf. On 10th April 1986, a plenary summons (Record No. 1986 No. 3626P) was issued by the Plaintiff in which "The Select Vestry of Ematris Parish" was named as Defendant claiming damages for personal injuries arising out of the accident on 12th March 1984. These proceedings, which, for the sake of brevity, I will refer to as the 1986 proceedings, were initiated on the advice of Senior Counsel who advised that a member of the General Accident Solicitors had confirmed that General Accident was on cover for any liability of the Select Vestry and that they consented that the Select Vestry should be sued by their title alone. A statement of claim in the 1986 proceedings was delivered on 16th October 1986 and following receipt of the statement of claim the General Accident Solicitors by letter dated 22nd October 1986 confirmed that their client was prepared to indemnify the Defendant as named in the proceedings. The Plaintiff's former Solicitors were still concerned whether all necessary Defendants had been joined in the 1986 proceedings and a letter dated 26th January 1987 sought from the General Accident Solicitors written confirmation that, if the Plaintiff was successful in his claim in the 1986 proceedings, General Accident would honour the decree notwithstanding that the legal owner of the property, the Defendant, was not included as defendant in the action. In response, by letter dated 22nd January 1987, the General Accident Solicitors confirmed that, if the Plaintiff was successful in the 1986 proceedings, General Accident would "indemnify the Defendants in respect of any award and costs".

6. In an Affidavit sworn in support of this motion a member of the Plaintiff's former Solicitors averred that, notwithstanding the letter dated 22nd January 1987, he remained concerned as to the involvement of the Defendant and in order to protect and preserve the interest of the Plaintiff he caused the plenary summons in these proceedings to be issued on 6th March 1987. Prior to that it had been established that the Defendant was not entitled to the benefit of insurance. No attempt was made to serve the plenary summons and the Defendant was not notified that it had been issued. In fact, the Defendant first became aware that it had been issued on 3rd September, 1993, that is to say, six and a half years after it was issued.

7. The Plaintiff continued to prosecute the 1986 proceedings, albeit slowly. The position of the Plaintiff as against the Defendant became a cause of concern when a defence was delivered in the 1986 proceedings on 3rd April 1990. In paragraph 1 of the defence the defendants in the 1986 proceedings pleaded as follows:

8. In June 1991, the Plaintiffs former Solicitors set in train the drafting of a motion to have the plenary summons in these proceedings renewed and entered into discussions with the General Accident Solicitors to ascertain whether or not it was necessary to proceed further as against the Defendant. The discussions culminated in written confirmation of the position being adopted by General Accident, which was contained in a letter dated 2nd September 1991 from the General Accident Solicitors, in which it was stated as follows:

9. Arising out of that letter, the Plaintiff's former Solicitors wrote to the General Accident Solicitors stating that Senior Counsel had advised that unless paragraph 1 was deleted from the defence in the 1986 proceedings, it would be necessary to join the Defendant in the 1986 proceedings. General Accidents Solicitors responded by letter dated 6th December 1991 in the following terms:

10. The 1986 proceedings are still pending. The Plaintiff, having changed Solicitors, delivered an amended statement of claim on 9th December 1994 in which he pleaded, inter alia, that by the letters dated 22nd January 1987 and 6th December 1991 the defendant in the 1986 proceedings accepted responsibility for all acts or omissions on the part of the Defendant who had not been named as a defendant in the 1986 proceedings. An amended defence was delivered in the 1986 proceedings on 9th February 1996 in which, inter alia, the defendants in the 1986 proceedings denied that they are responsible for the acts or omissions of the Defendant as alleged or at all.

11. The application to renew the plenary summons issued in these proceedings was initiated in September 1993, that is to say, six and a half years after the summons was issued and nine and a half years after the accident the subject of the proceedings occurred. The application was struck out. The current application was initiated Notice of Motion dated 29th March 1995 and the application was heard on 29th March 1996. If the application is successful it is the intention of the Plaintiff to apply to have the 1986 proceedings and these proceedings consolidated.

12. In the Affidavits filed in support of and in reply to the application and in the course of Counsels' submissions certain issues were identified which arise between the Plaintiff, on the one hand, and the defendants in the 1986 proceedings and the Defendant, on the other hand, for instance, who was the occupier of Ematris Rectory on 12th March 1984, what was the position of the Incumbent of Ematris Parish, the Select Vestry and the Defendant under the Constitution of the Church of Ireland in relation to parochial property on that day and what are the rights and duties of these bodies inter se. In my view, it would be entirely inappropriate for the Court to express any view on these issues at this juncture and I express no view on them.

13. In determining whether the interests of justice are served by renewing the plenary summons or by refusing to renew it, the first question which arises is whether the Plaintiff will suffer an injustice if it is not renewed. It was argued on behalf of the Defendant that by reason of the various assurances given by the General Accident Solicitors in the 1986 proceedings and, in particular, in the letters dated respectively 22nd January 1987 and 2nd September 1991, the Plaintiff will not be prejudiced at all by a refusal to renew the summons. The Plaintiff's response is that, if the Plaintiff is left in jeopardy that those assurances may not secure his position if he can establish negligence against the Defendant, this risk of itself constitutes a prejudice to the Plaintiff. It seems to me that it would be entirely inappropriate to express any view on the effect of those assurances either directly or indirectly by assessing the risk the Plaintiff perceives which, if it were to become a reality and if the summons were not renewed, would prejudice the Plaintiff because the Statute of Limitations, 1957 would defeat any new proceedings brought by the Plaintiff against the Defendant. I express no view whatsoever on the effect of the assurances.

14. The second question which must be considered is whether the Defendant would suffer an injustice if the summons was renewed. The Defendant contends that its ability to answer the Plaintiff's claim has been seriously impaired by the passage of time and that it would be gravely prejudiced if the summons was renewed. The Defendant contends that no claim of any kind was ever intimated by the Plaintiff against the Defendant following the accident in 1984 and, while the letter dated 23rd July 1984 to General Accident, a copy of which was furnished by Messrs. Winslow to the Defendant, recorded the Plaintiff's former Solicitors' understanding that General Accident handled the insurance in respect of Ematris Rectory on behalf of the Defendant, I consider that in substance the Defendant's contention is correct. After 9th July 1985 no letter, further communication or claim of any kind was received by the Defendant from any of the parties until September 1993. Ematris Rectory was sold on 2nd September 1985 and no investigation of any kind was carried out by or on behalf of the Defendant into the circumstances of the accident. In this application the Defendant has exhibited reports of periodic inspections of Ematris Rectory carried out in 1979, 1982 and 1984. Mr. Dent, the Diocesan Architect, who was involved in the inspections has died. As the inspections to which the reports relate were general inspections of Ematris Rectory and were not specifically directed to the investigation of the Plaintiff's claim and as the only professional involved in the inspections is dead, I accept the Defendant's contention that on its own it is not in a position to adduce reliable credible evidence at this remove to meet the Plaintiff's claim and it's ability to defend the Plaintiff's claim has been seriously impaired. In my view, the Defendant would be severely prejudiced if it was put into a position of having to defend the Plaintiff's claim at this remove. That General Accident may be in a position to marshal witnesses to answer the Plaintiff's claim and may be prepared to make those witnesses available to the Defendant, both of which propositions are in the realms of speculation, does not, in my view, mitigate the Defendant's prejudice.

15. In this case the summons was issued within a week of the expiration of the relevant limitation period. At the time it was issued there existed no clear unequivocal notification by the Plaintiff to the Defendant that he was pursuing a claim against the Defendant. A further period of six and a half years - twice the relevant limitation period - elapsed before the Plaintiff apprised the Defendant that the summons had been issued. Even if one assumes that the refusal to renew the summons would result in the Plaintiff being deprived of a hearing of his claim against the Defendant, and to do so is to put the Plaintiff's case at its highest, that situation is of the Plaintiff's making. On the other hand, if the summons is renewed, the Defendant would be forced to defend a claim the defence of which has been seriously impaired because of the Plaintiff's conduct. In my view, the delay in this case has been so gross and excessive that the interests of justice can only be served by refusing to renew the summons. Accordingly, I refuse the Plaintiff's application.