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  • doctor to be answered if necessary by performing a post mortem examination In the present case the answer to the question of how death occurred was to be found in the evidence of the consultant pathologist which was that it was due to shock due to extensive destruction of the brain and bones of the skull due to bullet wound to the forehead The decision of the court in that case was entirely reconcilable with the view that it would have been possible in law for the jury to find that the deceased had died from a self inflicted wound without any determination as to whether it had been inflicted deliberately or accidentally To the extent that the dictum cited suggests that the verdict of a coroner or a jury must be confined to the medical cause of death I am satisfied that it rests on an unduly narrow construction of the 1962 Act and in particular s 30 thereof It cannot have been the intention of the Oireachtas that in the case of a road accident for example the verdict should be simply confined to a finding in accordance with the pathologist s report and that the coroner or jury would be precluded from finding that the deceased had met his death while travelling in a motor car which collided with another vehicle The law in England was stated by Sir Thomas Bingham MR as he then was in R v H M Coroner for North Humberside and Scunthorpe Ex Parte Jamieson as follows it may be accepted that in case of conflict the statutory duty to ascertain how the deceased came by his death must prevail over the prohibition in Rule 42 against a determination of civil or criminal liability But the scope for conflict is small Rule 42 applies and applies only to the verdict Plainly the coroner and the jury may explore facts bearing on criminal and civil liability But the verdict may not appear to determine any question of criminal liability on the part of a named person nor any question of civil liability There can be no objection to a verdict which incorporates a brief neutral factual statement the deceased was drowned when his sailing dinghy capsized in heavy seas the deceased was killed when his car was run down by an express train on a level crossing the deceased died from crush injuries sustained when gates were opened at Hillsborough Stadium But such a verdict must be factual expressing no judgment or opinion and it is not the jury s function to prepare detailed factual statements I am satisfied that those principles are also applicable to the construction of s 30 of the 1962 Act The Master of the Rolls in that judgment also commented that It is noteworthy that the task is not to ascertain how the deceased died which might raise general and far reaching issues but how the deceased came by his death a more limited question directed to the means by which the deceased came to his death I do not think that there is any significant distinction to be drawn in this context between the words used in our Act how the death occurred and the corresponding expression in England how the deceased came by his death In respect of each of the four questions to which the inquest is required to provide an answer the inquiry to be conducted is an important but limited one In seeking to ascertain the intention of the Oireachtas it can be on occasions helpful to look at the statute under consideration as a whole rather than examining a particular provision in isolation In ascertaining whether the intention of the Oireachtas in enacting s 30 of the 1962 Act was to permit the form of inquiry undertaken by the coroner in the present case three other provisions of the Act would appear to be of some relevance Before doing so however I should refer to the circumstances in which the Act envisages the holding of the inquest by the coroner with a jury Section 39 provides that a coroner may hold any inquest either as he thinks proper with or without a jury S 40 1 requires the inquest to be held with a jury where the coroner becomes of the opinion that the death of the deceased came within one of a number of categories set out in the subsection Thus the inquest must be held with a jury if he is of the opinion that e the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public Sections 17 and 18 set out the general duties and powers of the coroner in relation to the holding of an inquest Section 17 provides that Subject to the provisions of this Act where a coroner is informed that the body of a deceased person is lying within his district it shall be the duty of the coroner to hold an inquest in relation to the death of that person if he is of opinion that the death may have occurred in a violent or unnatural manner or suddenly and from unknown causes or in a place or in circumstances which under provisions in that behalf contained in any other enactment require that an inquest should be held Clearly in the present case the deceased did not meet his death in a violent manner or suddenly and from unknown causes Nor did he die in a place or in circumstances which under statutory provisions required an inquest to be held Accordingly the coroner was not required to hold an inquest in this case unless the death occurred in an unnatural manner That last mentioned provision must be read in the light of s 18 1 which provides that Where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable he may inquire into the circumstances of the death of that person and if he is unable to ascertain the cause of death may if he so thinks proper hold an inquest in relation to the death Emphasis supplied In the present case there was no question of a medical certificate of the cause of death not being procurable Dr MacMathuna was satisfied to provide a death certificate to the effect that the death was caused by aspiration pneumonia due to cerebral palsy That of course would not have been a unnatural manner of death within the meaning of s 17 and a question accordingly might arise as to the jurisdiction of the coroner to hold the inquest in the present case Since however that was not a ground on which leave to apply for judicial review was granted I express no concluded view on the matter and I would expressly reserve for another occasion the question as to whether in circumstances such as arose in this case the coroner was either obliged or empowered to hold an inquest For the purposes of the present case it is sufficient to say that in my view the language of s 17 and s 18 1 suggesting as it does that an inquest is envisaged as being held in relatively limited circumstances does not at the least support the wide ranging construction of the expression how the death occurred advanced on behalf of the coroner and the notice parties in the present case The next provision of importance is s 26 which provides as follows 1 A coroner may at any time before the conclusion of an inquest held by him cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person including in particular any registered medical practitioner whose evidence would in the opinion of the coroner be of assistance at the inquest 2 A coroner shall not exercise in relation to the attendance at an inquest of a second registered medical practitioner the power conferred on him by s s 1 of the section unless a A majority of the jurors at the inquest it having appeared to them that the cause of death has not been satisfactorily explained by the medical practitioner giving evidence thereof at the inquest have by a requisition in writing called upon the coroner to cause a summons under that subsection to be served on another registered medical practitioner or b That practitioner had assisted at a post mortem examination upon the person in relation to whose death the inquest is being held It had to be said that the wording of this section gives rise to some difficulty Literally construed it would appear to mean that the coroner is precluded from exercising the crucial power conferred on him of summoning witnesses where for example a person who witnessed a motor accident happened to be a doctor and a pathologist had already given evidence at the inquest as to the cause of death It would seem absurd to attribute such an intention to the Oireachtas Similarly construed moreover it would appear to render inadmissible the evidence of a second registered medical practitioner where the pathologist had already given evidence even though the former s evidence was not directed to the strictly medical cause of death but was solely concerned with whether particular acts or omissions on the part of the hospital or medical attendants had contributed to the death and whether circumstances existed which might render appropriate the making of a general recommendation by the coroner or the jury pursuant to s 31 2 It must be remembered in this connection that the calling of such medical evidence may be of particular importance in a case where the coroner is not a medically qualified person It may be that a purposive construction could be given to s 26 2 which would not require its being construed so as to exclude further medical evidence in such circumstances But the language of s s 2 undoubtedly strongly suggests that the draughtsman envisaged that where a registered medical practitioner such as a pathologist had given his her opinion as to the cause of death in purely medical terms a second doctor should only be called where a majority of the jury consider that the cause of the death in that sense has not been satisfactorily explained by the first doctor Thus if in the present case the only medical evidence given had been that of Dr MacMathuna and the coroner had instructed the jury that they were entitled to return a verdict in accordance with his evidence the jury would no doubt have been entitled to requisition a second opinion Again it is unnecessary in my view to express any concluded view as to the proper construction of this somewhat unhappily worded provision It was argued on behalf of the coroner and the notice party that since s s 2 did no more than restrict the exercise by the coroner of his power to summon witnesses there would be nothing to prevent him from notifying a particular medical witness that he wished him or her to attend the inquest and then permitting him or her to give evidence It would be somewhat surprising if assuming the intention of the Oireachtas was expressly to preclude the calling of a second doctor to give evidence as to the medical cause of death presumably with the view to the more economic and expeditious holding of an inquest that legislative intention could be frustrated by the employment of such a device It is sufficient to say that the language of s 25 2 is a further indication of the unlikelihood of Oireachtas having intended by the language used in s 30 to permit the form of wide ranging inquiry undertaken by the coroner in the present case The third provision which gives some guidance as to the nature of the inquiry that takes place at an inquest is s 57 which requires certain fees and expenses including the expenses payable to witnesses at inquests to be prescribed by the Minister for Justice after consultation with the Minister for the Environment S 58 then empowers the coroner to issue a certificate for the payment by the relevant local authority of the sums in question The fees and expenses are at present governed by the Coroners Act 1962 Fees and Expenses Regulations 1996 SI 151 of 1996 They provide for the payment of fees to registered medical practitioners for their attendance at an inquest in a professional capacity ranging from 23 45 to 72 63 depending on the time involved They also provide for the payment of expenses on the same basis as the subsistence allowance at the highest rate for civil servants There is no provision for the payment of fees and expenses in respect of work of the nature undertaken by Dr Butler at the request of the coroner in the present case The fees and expenses of holding an inquest must thus be borne by the rate payers of a particular area and the amount payable is strictly controlled by the statutory provisions to which I have referred The contrast could hardly be more glaring with the areas in which one would normally expect a wide ranging inquiry to take place into controversial scientific and medical topics Where the issue is raised in civil proceedings of an adversarial nature it is open to the parties from their own resources to deploy a vast range of scientific and medical evidence relevant to those issues If it takes the form of a public inquiry by a tribunal into a matter of public importance the Oireachtas can make available to the tribunal whatever monies it requires to pursue its inquiry The extremely limited resources available in comparison to coroners holding inquests reflect the reality that the inquests they hold although they serve the public interest in an area of great importance are necessarily limited and confined in their nature Conclusions Ultimately this case depends on the construction of the expression how the death occurred in s 30 of the 1962 Act and specifically whether it authorised the form of wide ranging inquiry upon which the coroner embarked On one view an unarguably correct medical certificate accompanied by a full description of the circumstances in which the person met his death will not necessarily provide a comprehensive answer to the question how did he she die A death certificate may record admittedly not in layman s language that a person died of a heart attack a stroke cancer or some other disease There may be many explanations as to how that person came to have the fatal condition smoking alcohol lack of exercise poor diet and many other factors may have played a role A motor car accident perhaps in the distant past may ultimately be seen as having predisposed the victim to the condition to which he eventually succumbed The possibility may arise that the person s death was ultimately due to his or her exposure to industrial processes ranging historically from coal mining to nuclear power If a coroner s inquest were to extend its inquiries beyond the circumstances including the proximate medical cause of the death in which the death occurred it would become in my view an inquiry of a radically different nature and one which was not envisaged by the Oireachtas in enacting the 1962 Act The holding of such an inquiry is not merely unwarranted having regard to the restrictive terms in which s 30 is couched it is wholly at odds with the general policy underlying the legislation as reflected in the definition of the circumstances in which a coroner is obliged or entitled to hold an inquest the restrictions on his powers to summon medical witnesses and the limited financial resources available to him in conducting the inquest Then there is the question of the time scale within which it was contemplated that an inquest would be held Given that one of the public policy considerations underlying the holding of an inquest is the laying to rest of rumours and suspicion arising from an unexplained death it is undesirable in the extreme that inquests should be adjourned for any longer period than is strictly necessary Such adjournments inevitably occur in certain circumstances and are expressly required under s 25 of the 1962 Act where criminal proceedings are being considered or have been instituted I have no doubt that absent such circumstances the legislature envisaged that the inquest would be held as expeditiously as possible That has not happened in the present case I emphasised at the outset that an inquest is an essentially inquisitorial process in which there are no parties and no trial takes place What is to happen in the present case if the notice parties at the resumption of the inquest express their dissatisfaction with the report of Dr Butler and ask for a further adjournment so as to enable another independent expert commissioned by them to produce a further report It must never be forgotten that in adversarial litigation however protracted and cumbersome it may become the issues between the parties are strictly defined by the pleadings That is not so in inquisitorial procedures and it is a matter of public knowledge that in the case of tribunals of inquiry it has even proved difficult to confine the inquiries within reasonable limits by an insistence on strict adherence to the terms of reference prescribed by the Oireachtas The inquiry undertaken by the coroner in the present case is governed by no pleadings and is not constrained by any terms of reference In my view that is a serious although clearly unintended distortion of the important function which as a matter of history the coroner s inquest has discharged under our law and which consists in essence of an expeditious and economical inquiry into four limited but significant issues the identity of the deceased and where when and how his death occurred I would dismiss the appeal and affirm the order of the High Court THE SUPREME COURT Keane C J Murphy J Murray J McGuinness J Hardiman J 9 55 00 BETWEEN THE EASTERN HEALTH BOARD APPLICANT RESPONDENT AND BRIAN FARRELL CORONER FOR THE CITY OF DUBLIN RESPONDENT APPELLANT AND BY ORDER VERA DUFFY AND KEVIN DUFFY NOTICE PARTIES J UDGMENT delivered the 27th day of November 2001 by Keane C J Introduction These proceedings arise out of an inquest held by the respondent appellant hereafter the coroner into the death of Alan Duffy on the 31st December 1995 The inquest was opened on the 4th December 1997 and was subsequently adjourned from time to time On the last day on which it sat the 29th March 1999 it was adjourned until the 19th April 1999 On the 12th April 1999 however the applicant respondent hereafter the board were given leave by the High Court McCracken J to apply for a number of reliefs including 1 A declaration that the conduct of the inquest into the death of Alan Duffy deceased 31 12 1995 by the respondent insofar as it purports to examine or determine the issue of whether his death was caused wholly or in part by the administering of the 3 in 1 pertussis vaccine in 1973 is ultra vires the Coroners Act 1962 2 A declaration that it is ultra vires the said Act of 1962 to adjourn the said hearing for a period of sixteen months in order to conduct a medical investigation into the linkage between the pertussis vaccine and encephalopathy It was also ordered that the notice parties who are the parents of Alan Duffy should be joined in the proceedings A statement of opposition having been filed on behalf of the coroner the substantive hearing came on before Geoghegan J In a reserved judgment delivered on the 14th December 1999 now reported at 2000 1 ILRM 446 he held that the hearing of the inquest was conducted by the coroner ultra vires the provisions of the Coroners Act 1962 hereafter the 1962 Act granted the first declaration sought From that decision the coroner has now appealed to this court The evidence as to the circumstances giving rise to the inquest and the manner in which it was conducted by the coroner are described in affidavits sworn by the solicitor for the board and the coroner While the account given by the solicitor is in broad terms accepted by the coroner he takes issue with that account in some respects and no further affidavits having been filed in the High Court the appeal proceeded on the assumption that the coroners version of events to the extent that it differed from that given by the solicitor was not now in dispute Alan Duffy hereafter the deceased was born on the 11th May 1973 at Mount Carmel Hospital Dublin he was accordingly aged 22 when he died It is not in dispute that he was given what is generally known as the 3 in 1 vaccine which incorporates a vaccine against pertussis whooping cough on the 17th October 1973 the 12th December 1973 and the 5th February 1974 and that on being subsequently admitted to Our Lady s Hospital for Sick Children Crumlin on the 17th July 1974 when he was aged 14 months he was diagnosed by Professor Neil O Donoghue the paediatrician as suffering from a degree of mental handicap The deceased was admitted to the Mater Hospital on the 21st December 1995 where he was diagnosed to be suffering from pneumonia He was then moved to intensive care and died ten days later Dr Padraig MacMathuna a consultant physician and gastroenterologist at the hospital was of the view that his death was caused by aspiration pneumonia due to cerebral palsy and proposed to complete the death certificate in those terms The notice parties objected to his doing so on the ground that the cause of death was aspiration pneumonia due to mental handicap caused by an encephalopathic reaction to the pertussis vaccination It was in those circumstances that the coroner proceeded to hold the inquest Before doing so however he wrote to the board asking then to arrange for an official to attend the inquest and furnish it with evidence as to the immunisation medical notes and records relating to the deceased When the inquest began Dr MacMathuna gave evidence that he was unwilling to attribute the death of the deceased to the immunisation that he had received as a baby and that aspiration pneumonia was the cause of death He said that as the deceased was suffering from severe mental handicap he was at a much higher risk of aspirational pneumonia and other infections He agreed with the coroner that the medical description of the deceased s cause of death was Bilateral staphylococcal pneumonia with associated septicaemia due to aspiration Dr MacMathuna also said that the term cerebral palsy is an umbrella term used to describe mental retardation of the type suffered by the deceased and that this neurological condition would have been an exacerbating factor in his death The first named notice party the mother of the deceased then gave evidence She said that she had noticed a reaction in the deceased shortly after he had been given the injection the colour drained from his face and his eyes rolled in his head She also said that her sister and first cousin suffered from epilepsy and that her understanding was that the vaccination should not have been given in such circumstances At this stage in the inquest counsel on behalf of the board objected to the manner in which the coroner was proceeding with the inquest on the ground that it was inappropriate that matters affecting the possible civil or criminal liability of parties not present should be decided by the inquest The coroner overruled that objection and Professor O Donoghue next gave evidence He said he had not been informed by the deceased s mother of any adverse reaction to the vaccine He also said that there was no evidence to link the deceased s condition of mental handicap to the vaccine He also gave evidence that while in the mid 1970 s there was widespread concern in the medical profession as to adverse reactions to the 3 in 1 vaccine the current belief is that there is absolutely no link between the vaccine and any adverse reaction It should be pointed out at this stage that there was a conflict of evidence between Professor O Donoghue and the deceased s mother at the inquest as to whether the deceased had shown any signs of abnormality prior to the administration of the vaccine The former said that his notes were to the effect that the baby s developmental progress had always been delayed after birth and that in particular the absence of a smile would give cause for concern The deceased s mother said that this was not so that the baby smiled normally and that no difficulties were evident until after the vaccination She produced in evidence photographs of the deceased during the early months of his life to corroborate this Evidence was also given by Dr Barbara Stokes the Chief Medical Officer of St Michael s Hospital and Professor Maurice Tempany of the Royal College of Surgeons It is stated in the solicitor s affidavit that while they gave separate accounts of the treatment of the deceased they did not disagree with the conclusions drawn by the previous expert witnesses In his affidavit the coroner said that three other expert opinions had been submitted to him by the notice parties from Professor Peter Behan Dr John Wilson and Professor John Stephenson He said that Professor Behan and Dr Wilson were of the opinion that vaccinations could cause encephalopatic reactions but that Professor Stephenson took the opposite view Evidence was also given by witnesses having control of the relevant records on behalf of the board Many of the medical records had been damaged or destroyed the health centre where they were stored having been broken into and burnt down In the result the board had no records relating to the deceased which had not been disclosed to the notice parties The coroner then stated that the jury needed to know the circumstance surrounding the administration of the vaccine in the 1970 s He said that he accordingly proposed to commission a report from an independent medical expert Dr Karina Butler a consultant in paediatric infectious diseases at Our Lady s Hospital Crumlin and the Children s Hospital Temple Street The inquest was adjourned from time to time pending the completion of this report which was ultimately furnished to the board on the 17th December 1998 The report is forty three pages in length and contains references to fifty seven studies carried out by experts in different parts of the world which Dr Butler considered relevant to her report Her conclusion is as follows Thus in over sixty years since the first reports of possible encephalopathy by Madsen in 1933 no consistent unique clinical entity recognisable as pertussis vaccine encephalopathy has emerged No universally accepted reliable animal model of pertussis encephalopathy has been established and no child has been proven to have permanent neurological damage caused by pertussis vaccine Neither has the possibility that such events might very rarely occur been conclusively excluded Following the receipt of the report the inquest was again adjourned as already noted and on the 15th March the solicitors for the board wrote to the coroner expressing their concern as to the manner in which the inquest has been conducted Having indicated the writer s doubts as to the legality of the lengthy adjournments to date of the inquest the letter concluded If it is not unlawful to resume this inquest with the same jury after such lengthy adjournment we believe it should be done solely for the purpose of summarising Dr Butler s findings and inviting a verdict consistent with the evidence namely that Alan Duffy died as a result of pneumonia In view of the fact that this case is being adjourned to a date in April where three days have been set aside we are greatly concerned that the matter will be reopened and all the issues revisited in circumstances where it is wholly inappropriate and ultra vires the 1962 Act to do so We therefore would be obliged if you would confirm by return within 7 days if it is your intention to recall the jury solely for the purpose outlined above We feel we should inform you that unless the above course is taken the Eastern Health Board will be left with no alternative but to apply to the High Court by way of judicial review proceedings to seek such orders and directions as the court may deem appropriate in the circumstances The coroner on 18th March 1999 wrote to the solicitors for the board as follows The inquest into the death of Alan Duffy will resume on Monday April 19th at 10 30 a m I have considered the submissions of counsel on 9th February when the inquest was mentioned The evidence already given will be recounted in detail by the coroner and the said witnesses will be present in person to answer any further questions that might arise I also propose to call Dr P J Corcy and Dr Karina Butler who will be requested to give a summary of her report I will further mention the inquest on Monday 29th March at 2 00 p m Dr Corcy was the obstetrician who attended the first notice party at the time of the birth of the deceased There followed the initiation of the present proceedings on behalf of the board Two further points should be noted The coroner in his affidavit said and this was not disputed that while aspiration pneumonia was a proximal or terminal cause of death it was always the consequence of some other condition which is the true cause of death While the coroner accepted that counsel on behalf of the board made certain points regarding the procedure to be adopted he also said that he made no formal objection to the inquest It would appear however from the affidavit of the solicitor for the board that counsel instructed by him on a number of occasions expressed his clients concern at the manner in which the inquest was being conducted The High Court Judgment In his judgment the learned High Court judge having set out the facts dealt first with a claim made on behalf of coroner that the application for judicial review had not been made promptly or in accordance with Order 84 Rule 21 1 of the Rules of the Superior Courts Having considered that ground of opposition he concluded that he should not decide the issues raised in the judicial proceedings solely by reference to the time which has elapsed before those proceedings were initiated On this appeal his finding to that effect has not been challenged by the coroner or the notice parties The High Court judge went on to consider whether the actions of the coroner were in breach of s 30 of the 1962 Act which provides that questions of civil or criminal liability are not to be considered or investigated at an inquest and that inquests are to be confined to ascertaining the identity of the deceased person and how when and where the death occurred He referred to the decision of this court in Greene v McLoughlin Unreported Judgment delivered 26th January 1995 as to how this section should be construed and to a decision of the English Court of Appeal in R v North Humberside Coroner Ex Parte Jamieson 1995 QB 1 as to the interpretation of the equivalent English legislation He summed up his conclusions as follows I think that it would be unwise to set down any hard and fast rule but in each case the coroner should be investigating what is the real and actual cause of the death This death it appears to me was caused by pneumonia Any conceivable link with the 3 in 1 objection is too nebulous and indirect to make it appropriate for an investigation by the coroner The very fact that the coroner ended up having to commission an independent report is somewhat indicative of the impracticality of such an inquest and I do not believe that such an inquest was intended by the wording of s 30 of the 1962 Act He went on to refer to s 26 of the 1962 Act which he said appeared to restrict the right of the coroner to call additional witnesses and also said that it was in his view undesirable to permit an inquest before a jury to be adjourned for such a length of time for the purpose of getting fresh expert evidence The High Court judge further said that it seemed to him that the notice parties wanted the possible link with the 3 in 1 vaccine to be investigated for the purpose of pinning fault but that he was also satisfied that the coroner was genuinely investigating whether there could have been a link or not independently of any question of fault He was however satisfied that the board were entitled to a declaration that the conduct of the inquest insofar as it purported to examine or determine that issue was ultra vires the 1962 Act Submissions of the Parties On behalf of the coroner Mr Gerard Hogan SC and Mr Michael Conlon submitted that the express prohibition in s 30 of the 1962 Act on the consideration or investigation of questions of civil and criminal liability was clearly intended to ensure that irrelevant issues would not be raised and examined which were outside the proper scope of the inquest it did not mean that the investigation of facts which might have a bearing on civil liability was prohibited That this was the rationale of s 30 and of the corresponding legislation in England was made clear by the report of a Departmental Committee on Coroners in the United Kingdom Cmnd 5070 1936 and this had also been made clear in the decision of the English Court of Appeal in R v North Humberside Coroner Ex Parte Jamieson They further submitted that the word how in s 30 should not be construed as confining the inquiry to the proximal cause of death this would have the effect of confining the role of the coroner to merely admitting the pathologist s post mortem report at the inquest They submitted that insofar as a dictum of Blayney J in Greene v McLoughlin suggested that the question as to how death occurred in any particular case was a medical question for a doctor to be answered if necessary by performing a post mortem examination it was unduly restrictive and should not be followed They urged that such an interpretation failed adequately to take into account the purpose of the coronial system as explained by this court in Farrell v Attorney Genera l 1998 1 IR 202 On behalf of the notice parties Mr Paul Gardiner SC submitted that if the view taken by the learned High Court judge was correct the same objection would have to be raised to an inquiry by the coroner into whether the 3 in 1 injection had caused the death of the deceased where the death had occurred within a matter of days from the injection being administered That could not have been the intention of the Oireachtas in enacting s 30 1 of the 1962 Act He also referred to the finding of the High Court judge that

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  • Act applied to the whole of the United Kingdom apart from Scotland Both Acts were repealed by the Coroners Act 1962 28 From this history it appears that the power to remunerate the medical witnesses was conferred because of the difficulty of procuring their attendance without such remuneration This occurred in 1829 Seven years later the coroners power to summon a medical witness seems to have been confined to one only unless perhaps there was a question of medical negligence The power of the jury by a majority to require the calling of additional medical evidence was conferred at the same time and was not restricted to a single witness 29 It is clear from the contents of the 1836 Act that the question of whether death was occasioned by negligent treatment was specifically envisaged as a matter which the jury might consider It also seems to me clear that the jury s power to summon additional medical witnesses either as first conferred or as altered by the Act of 1962 was and is likely to be redundant unless the jury are informed of that power 30 It is also clear from the history of the present inquest that the restriction contained in Section 26 was not observed by the coroner presumably because it was not present to his mind I do not believe that this inquest is unique in that respect 31 In the course of the present inquest the coroner and jury heard the evidence of Dr Padraic MacMathuna Professor Neil O Doherty Dr Barbara Stokes Professor Maurice Tempany as well as a Dr Lane and a Dr Cronin It would appear that the latter two gave evidence in relation to records only Three further reports from Professor Behan Dr John Wilson and Professor John Stephenson were submitted to the coroner it appears that all these persons are medical practitioners According to the coroner s affidavit he felt that there had been a conflict of expert opinion and formed the view that an independent medical opinion was required to assist the jury in their deliberations He identified Dr Karina Butler as a suitable person to supply this evidence and at his invitation she appears to have compiled a report 32 On the face of Section 26 the coroner is precluded from calling more than one registered medical practitioner to give evidence at an inquest unless in the circumstances set out in the section he becomes entitled to call a second such person I agree with the judgment of the learned Chief Justice that this prohibition could scarcely extend to a person who happens to be a medical practitioner but is not called in that capacity This might conceivably extend to the doctors called merely to give evidence about records However on any view it would appear that there is no mandate in any circumstances for calling more than two medical practitioners to give evidence in that capacity This number has already been exceeded 33 I have considered the possibility that the prohibition contained in sub section 2 of Section 26 extends merely to calling additional medical practitioners by summons i e that it does not apply to hearing the evidence of a practitioner who attends voluntarily However for the reasons given in the judgment of the learned Chief Justice I do not consider that it would be legitimate so to construe the section The intention of the legislature appears to have been to place a significant restriction on the power of the coroner to require the medical evidence of a second practitioner and apparently to exclude the summoning of a third or further such person This restriction on the power of the coroner himself seems inconsistent on any purposive construction with the existence of an untrammelled power in persons without any official standing to call as many medical witnesses as they can induce to attend without summons whether by payment or otherwise 34 Since this appears to be the effect of the section it does not appear possible for the coroner further to pursue his inquiries into whether the three in one injection caused or contributed to the death in this case It appears to me an anomalous result that a restriction of this kind is placed on an inquiry into how the death occurred The coroner has deposed While aspiration pneumonia is a proximal or terminal cause of death it is always the consequence of some other condition which is the true cause of death In so far as the inquest seeks to determine how the deceased died it is an inquiry into this cause of death and not into the immediate condition 35 He has also deposed having summarised the evidence of the mother that Dr Curry the mother s obstetrician has not yet given evidence It is intended that he give evidence to endeavour to establish whether or not the child was normal after delivery and in the early months of life 36 He has also in the passage quoted above deposed that he considers that further medical evidence is required to assist the jury in their deliberations 37 It is therefore with some regret that I conclude that he is precluded from doing so by the terms of Section 26 38 It may be that Section 26 was framed at a time when medical issues like many others appeared much simpler than they do now Medical expertise like so much else has become fragmented into smaller fields of infinitely greater focus For example in the present case the effect of the section appears to be that if the coroner decides to summon a pathologist then he cannot except in the special circumstances outlined in Section 26 also summon an expert in vaccination If he were able to summon both these practitioners he would be precluded from calling the obstetrician who delivered the child and might have significant evidence to give as to his state at or shortly after birth 39 It might be thought that Section 26 evidences a general intention on the part of the legislature to limit in the interests of economy or otherwise the amount of evidence that can be given But this seems inconsistent with the power to make recommendations of a general kind and with the necessity to summon a jury if the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public The apprehensions of the Health Board 40 In his judgement in this case the learned trial judge referred to the jury s power to make general recommendations and added The Health Board makes no secret of the fact that it is afraid that a misguided jury could make a recommendation not warranted on the evidence but which could be extremely damaging to public confidence in the vaccine practices 41 In my opinion this apprehension is an inappropriate one both in law and on the basis of practical experience 42 Firstly the scheme of a Coroner s Act is clearly one which envisages the consideration by a jury of circumstances of possible prejudice to the health or safety to the public or any section thereof That such circumstances can extend to medical misadventure is illustrated by the terms of Section 18 4 which envisage the reporting of a death in such circumstances as may require investigation including death as a result of the administration of an anaesthetic The acknowledged general purposes of a coroner s inquest set out above tend to emphasise inter alia the role of an inquest in allaying public disquiet and drawing attention to circumstances which if unremedied might lead to further deaths as well as to the advancement of public knowledge 43 Secondly it does not seem to me unreasonable that a jury should be involved in this exercise Especially in a time when decisions in many areas are taken by professional and administrative elites whose ability to communicate meaningfully with the general public is sometimes questionable the basis on which the Oireachtas have elected to involve a jury in matters such as those under discussion in this case seems both clear and justifiable Moreover there is nothing in the history of the discharge by juries of the duties assigned to them to suggest that there is any basis for a genuine apprehension that a jury would proceed on a basis not warranted by the evidence The apprehension itself in my view is wholly unwarranted by evidence or experience 44 S26 is in my view in contemporary conditions a serious obstacle to the proper discharge of the statutory duty of a coroner in the more complex type of inquest whether he or she is sitting alone or with a jury If a coroner feels that the question of how the death occurred cannot be answered without further evidence it seems remarkable that he cannot obtain it Conclusion 45 I conclude that the vires of the coroner do not extend to the reception of the evidence of Dr Butler or any other medical practitioner with a view to considering whether the three in one injection caused or contributed to the death of the deceased On this narrow ground I would dismiss the appeal 2001 IESC 96 THE SUPREME COURT 9 55 00 Keane CJ Murphy J Murray J McGuinness J Hardiman J Between THE EASTERN HEALTH BOARD Applicant Respondent and BRIAN FARRELL CORONER FOR THE CITY OF DUBLIN Respondent Appellant and BY ORDER VERA DUFFY and KEVIN DUFFY Notice Parties JUDGMENT delivered the 27th day of November 2001 by Mr Justice Hardiman 1 I concur in the Order proposed by the learned Chief Justice I do so on a narrow ground I cannot see that the course of action followed by the coroner is consistent with Section 26 of the Coroner s Act 1962 Since this section as I interpret it constitutes a considerable restriction on the coroner s powers in the conduct of inquests I wish to set out my reasons in some little detail The functions of coroners 2 The office of coroner is of great antiquity It is claimed by some authorities to predate the Norman conquest See Hallsbury Third Edition Volume VIII Blackstone Sixth Edition Volume I page 347 says that the office is of equal antiquity with the Sheriff and was ordained together with him to keep the peace when the Earls gave up the wardship of the County Early medieval records have many references to the office of coroner and in particular to the grant by the Crown of the power to select a coroner to the citizens of various cities The original jurisdiction of the office was wider than its present one and it still retains some traces of the old jurisdiction As Keane J as he then was said in Farrell v Attorney General 1998 IR 203 at 223 The holding of an inquest by a coroner with or without a jury has been a feature of our law for many centuries While few would dispute the need to have a public inquiry by a person with appropriate legal or medical qualifications into the death of a person as a result of violence or in other circumstances which render such an investigation appropriate our present law governing inquests despite its partial modernisation in 1962 is in some ways anachronistic as witness the continuing jurisdiction to hold inquests into treasure throve see Section 49 of the Act of 1962 3 The relevant jurisdiction of the coroner however relates to the holding of inquests into the death of certain deceased persons The modern rationale for the holding of such inquests or inquiries is in my view correctly stated in an English authority cited in the judgment just quoted This is the report of the Broderick Committee on Death Certificates and Coroners Inquests Cmnd 4810 This identified the aspect of the public interest which a coroner s inquest should serve as 1 To determine the medical cause of death 2 To allay rumours or suspicions 3 To draw attention to the existence of circumstances which if unremedied might lead to further deaths 4 To advance medical knowledge 5 To preserve the legal interests of the deceased person s family heirs or other interested persons 4 By Section 17 of the Coroners Act 1962 it provided that It shall be the duty of the coroner to hold an inquest in relation to the death of a person if he is of the opinion that the death may have occurred in a violent or unnatural manner or suddenly and from unknown causes or in a place or in circumstances which under provisions in that behalf contained in any other enactment require that an inquest should be held 5 The next section confers a power to hold an inquest where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable 6 Section 18 4 contains an obligation on various persons to notify the coroner if they have reason to believe that the deceased person died either directly or indirectly as a result of violence or misadventure or by unfair means or as a result of negligence or misconduct or malpractice on the part of others or from any cause other than natural illness or disease for which he had been seen and treated by a registered medical practitioner within one month before his death or in such circumstance as may require investigation including death as the result of the administration of an anaesthetic Such persons shall immediately notify the coroner within whose district the body of the deceased person is lying of the facts and circumstances relating to the death 7 In relation to the form of the inquest itself Section 30 of the Act provides Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how when and where the death occurred 8 This is followed by a prohibition on any verdict or rider of an inquest containing a censure or exoneration of any person There then follows Section 31 2 which provides that Notwithstanding anything contained in sub section 1 of this Section recommendations of a general character designed to prevent further fatalities may be appended to the verdict at any request 9 The role of the jury at an inquest has been the subject of some comment during the hearing of this appeal Section 39 of the Act provides that in general a coroner may hold an inquest with or without a jury as he thinks proper Section 40 however sets out five circumstances in which a jury must be sworn The fifth and most general of these is That the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public Conclusions from above 10 From the above materials it is possible in my view to reach certain conclusions as to the intended extent of the coroner s jurisdiction Where an inquest is properly convened he and where a jury is involved the jury must establish the identity of the deceased and how when and where the death occurred He or they are debarred from considering any question of civil or criminal liability and cannot attach censure or exoneration to any person That is not to say that their inquiry may not properly extend to topics which would also be considered by a civil or criminal court He or they may make recommendations of a general character designed to prevent further fatalities From the terms of Section 40 1 e it appears that these recommendations may inter alia address circumstances which might be prejudicial to the health or safety of the public or any section of the public How the death occurred 11 The construction of this phrase in Section 30 of the Act was the subject of considerable argument on the hearing of this appeal Undoubtedly the most restrictive interpretation is to be found in the judgment of this Court in Greene v McLoughlin unreported judgment delivered 26th January 1995 In that case Blayney J said It seems to me that how death occurs in any particular case is a matter to be determined in the light of medical science It is a medical question for a doctor to be answered if necessary by performing a post mortem examination In the present case the answer to the question as to how death occurred was to be found in the evidence of the consultant pathologist which was that it was due to shock due to extensive destruction of the brain and the bones of the skull due to bullet wound in the forehead 12 It was submitted on behalf of the Appellants in this case that the approach just cited leads inevitably to the conclusion that a coroner or jury would be confined merely to admitting the pathologist s report and adopting it as their verdict I agree with this submission I believe that this extremely narrow construction of the phrase quoted from Section 30 of the 1962 Act would reduce the inquest to a mere rubber stamp Accordingly I agree with the judgment of the learned Chief Justice first that the passage cited is obiter and secondly that it rests on an unduly narrow construction of Section 30 13 It is common knowledge that in very many cases the proximate cause of death is itself secondary to some other condition or process whether medical or external To confine an inquiry into how the death occurred to the ascertainment of the immediate or proximate cause would often be

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  • case 5 That the Plaintiff has an arguable case on the merits 14 The plaintiff has appealed against the order of the High Court of 20th March on the grounds 1 The Plaintiff did not have an opportunity to defend with knowledge of the Order sought against him and that the Plaintiff does not have knowledge of the content of the affidavits of Damien M P Tansey filed on the 6th day of March 2000 and of the affidavit of Catriona O Mara filed on the 6th day of March 2000 2 The defendants did not make full and complete discovery and a document released was not authentic 3 That on merit the Plaintiff has a case Law 15 The law in relation to an application to dismiss proceedings for want of prosecution is well settled It was restated comprehensively in Primor plc v Stokes Kennedy Crowley 1996 2 I R 459 The head note of that judgment sets out the principles of law relevant to an application to dismiss an action for want of prosecution 1 that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice so required 2 that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable 3 that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether in its discretion on the facts the balance of justice was in favour of or against the case proceeding 4 that when considering this obligation the court was entitled to take into consideration and have regard to a the implied constitutional principles of basic fairness of procedures b whether the delay and consequent prejudice in the special facts of the case were such that it made it unfair to the defendant to allow the action to proceed and made it just to strike out the action c any delay on the part of the defendant because litigation was a two party operation and the conduct of both parties should be looked at d whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in he plaintiff s delay e the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not in law constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss the weight to be attached to such conduct depending on all the circumstances of the particular case f whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant g the fact that the prejudice to the defendant referred to in f might arise in many ways and be other than that merely caused by the delay including damage to a defendant s reputation and business Decision 16 The plaintiff is a lay litigant in this appeal He has been represented however by two firms of solicitors earlier in these proceedings The issue for decision is whether the High Court erred in the exercise of its discretion in dismissing the claim for want of prosecution 17 There is no doubt but that there has been inordinate delay in this case The question to be determined is whether it is inexcusable The main excuse given before the High Court was that a medical report was being awaited from a consultant in the United Kingdom However obviously there had been a medical opinion obtained when these proceedings were launched Moreover the plaintiff s then solicitor served Notice of Trial in May 1996 and the medical report in question was not sought until February 1999 and had still not been obtained at the time of the swearing of the affidavit on March 2nd 2000 by the plaintiff s solicitor Mr Tansey Thus the matter of seeking an additional medical report was not sufficient excuse in the circumstances for the delay in obtaining a second Notice of Trial 18 The plaintiff also complained about the documents furnished on discovery The defendants submit that they have made full discovery A problem on discovery could have been dealt with by either of the solicitors for the plaintiff Such a submission in the circumstances of this case is not adequate to resist the motion 19 The plaintiff submitted that he did not know of the actual orders that were being sought or of the affidavits filed on behalf of himself and on behalf of the defendants This submission relates to a time when the plaintiff had legal representation He was represented by his solicitor in the matter Thus this is also not an appropriate excuse for the delay 20 The plaintiff has advanced no reasonable reason as to why the High Court exercised its discretion incorrectly On the facts of this case as set out in the pleadings herein it is clear that there was inordinate delay which was inexcusable The inordinate delay has given rise to a substantial risk that it is not possible to have a fair trial and the delay is likely to have caused serious prejudice to the defendants On balance the justice of the situation was in favour of dismissing the proceedings Consequently I am satisfied that the High Court did not err in the exercise of its discretion 21 On the 14th November 2001 by motion the plaintiff sought that further facts and information be put before the courts In the circumstances it is unnecessary to proceed to consider this motion However I have read carefully all the papers filed by the plaintiff and am satisfied that there is no requirement in justice that this motion proceed 22 Today the 23rd November 2001 the plaintiff has sought to bring by motion a submission additional to his written submissions at the hearing on 14th November and also to exhibit a document He sought to bring to the attention of the court a matter arising from the hearing of the appeal The plaintiff has deposed that at the hearing he was given every opportunity to fully present his case but pleaded that he lacked experience and he sought to make the new application The plaintiff referred to his earlier reference that the solicitors for the defendants had said that they were going to bring the case to trial He referred to a letter of 21st October 1997 from Arthur Cox to the plaintiff s then solicitors Foley and Mullery That letter states Our clients are anxious that this matter would be disposed of without further delay and we will as previously mentioned be applying for a date for hearing early in the New Year There are four Orders for costs outstanding as against the Plainitiff sic your client James Brennan We enclose herewith copy of these Orders dated the 29th of November 1990 2 the 12th October 1992 and the 22nd of March 1993 With respect your client s claim appears to be without merit and our instructions are to fully defend the claim At the end of the hearing if successful as we anticipate we will be seeking an Order for the full costs of the proceedings as against Mr Brennan 23 However this letter was prior to first Notice of Trial being struck out on the 4th day of December 1998 Thus it is not a factor which excuses the delay The plaintiff has also referred to a Book of Inter Party Correspondence referred to by the defendants solicitor and stated that he did not know what it contained However while these were given to him they were not before the court Finally the plaintiff referred to two motions to dismiss for want of prosecution which occurred when the defendants were represented separately by two firms of solicitors which arose in 1990 and which were struck out with costs awarded against him He stated that he did not previously make a submission on estoppel on the dismiss for want of prosecution orders arising in 1990 I am satisfied that in relation to this matter the concept of estoppel does not apply As to the argument in relation to the previous motions to dismiss for want of prosecution it is merely necessary to point out that over a decade has elapsed since these orders were made in circumstances where no reasonable excuse has been afforded for the delay Thus while the court in the exercise of its discretion decided in exceptional circumstances to hear the motion today none of the matters submitted by the plaintiff excuse the inordinate delay Conclusion 24 I would not interfere with the exercise of discretion by the High Court It was within the parameters of the law Also on balance the justice of the situation is met by the order made by the High Court There was inordinate and inexcusable delay so as to undermine a fair trial For the reasons given herein I would dismiss the appeal 2001 IESC 105 THE SUPREME COURT 190 2000 Denham J Murray J McGuinness J BETWEEN JAMES BRENNAN PLAINTIFF APPELLANT and NOEL FITZPATRICK GALVIA HOSPITAL LIMITED and COMMUNITY HOSPITALS IRELAND LIMITED DEFENDANTS Judgment of the Hon Mrs Justice Denham delivered on the 23rd day of November 2001 1 This is an appeal by James Brennan the plaintiff appellant hereinafter referred to as the plaintiff against an order of the High Court Johnson J dismissing his claim for want of prosecution The plaintiff has also brought a motion for liberty i to adduce fresh evidence and evidence in substitution for that already given and ii to amend the notice of appeal 2 The first matter for consideration is the appeal of the plaintiff from the order of the High Court that the plaintiff s claim do stand dismissed for want of prosecution for failure to serve a new Notice of Trial after it had been struck out on the 4th day of December 1998 High Court Action 3 The plaintiff served a plenary summons on 16th June 1989 making a claim against the defendants in relation to events which occurred in June 1986 On the 28th November 1990 the Statement of Claim was delivered by the solicitors acting for the plaintiff It was pleaded in the Statement of Claim 2 On or about the month of June 1986 the Plaintiff entered the First Named Defendants Hospital as an In patient for investigations regarding the Plaintiffs complaints of nocturia frequency and an altered bowel habit The aforesaid investigations were to consist of a colonoscopy cystoscopy and bladder distention sic under anaesthetic On recovery from the anaesthetic the Plaintiff had severe pain in his bladder area together with acute urinary retention after the cystoscopy 3 In breach of their duty to the Plaintiff the Defendants their servants or agents negligently failed and or refused and or neglected to treat the Plaintiff for his complaints as a result whereof the Plaintiff suffered and endured much pain and suffering and sustained loss and damage 4 The particulars of negligence and breach of duty pleaded were a Failed to observe or to heed or to take any reasonable steps to investigate the complaints of the Plaintiff as to his condition b Failed to pass a urinary catheter either in time or at all to alleviate his discomfort and pain and especially after twenty hours had passed with no urination c Failed to palpate or check his bladder either in time or at all d Failed to diagnose that he was suffering from acute urinary retention e Attempted to have the Plaintiff void spontaneously without catheterisation 4 By reason of the matters aforesaid the Plaintiff suffered severe pain personal injuries and suffered loss and damage 5 The particulars of injuries claimed were PARTICULARS The plaintiff was in acute pain for the period post investigation while in hospital He left Galvia Hospital and two and a half hours later was admitted to Sligo General Hospital where he received emergency treatment and on admission the following day was treated for his bladder complaint by way of catheterisation over a period of four days Whilst in Galvia Hospital he had been in severe pain was nauseated and weak He had to spend four days in hospital in Sligo His convalescence was delayed and he suffered more pain and trauma than he would otherwise have done The onset of further sequelae cannot be ruled out 6 No particulars as to further sequelae have been pleaded 7 A motion for particulars raised by the defendants was responded to in 1992 after a motion by the defendants The defence on behalf of all the defendants was filed on the 8th March 1996 During 1992 to 1996 there was considerable correspondence between the solicitor for the plaintiff and the solicitor for the defendants In May 1996 the Notice of Trial was served The plaintiff did not take steps to have it set down for trial In December 1998 the Notice of Trial was struck out No new Notice of Trial has been served Legal Representation 8 Initially the plaintiff was represented until February 1998 by Messrs Foley Mullery Solicitors There was then a gap in legal representation From the 14th July 1999 the plaintiff was represented by Damien M P Tansey However on this appeal the plaintiff was a lay litigant Motion to Dismiss for Want of Prosecution 9 The defendants brought a motion to dismiss for want of prosecution and grounded it on the affidavit of Catriona O Mara solicitor in the firm of solicitors Arthur Cox who are the solicitors on record for the three defendants Catriona O Mara deposed 3 As appears from the Plaintiff s Statement of Claim this is a medical negligence action In it the Plaintiff claims that in the month of June 1986 he was referred to Galvia Hospital under the care of the First Named Defendant for the purposes of undergoing colonoscopy cystoscopy and bladder distension under anaesthetic 4 Furthermore he alleges that after undergoing the aforesaid procedures he had severe pain in his bladder The Plaintiff alleges that the Defendants were negligent in failing to heed or investigate his complaints and that they failed to pass a urinary catheter in time or at all to alleviate his discomfort In particular he states that he suffered acute pain and that two and a half hours after he left Galvia Hospital on the 20th June 1986 he was admitted to Sligo General Hospital where he received emergency treatment by way of catheterisation over a period of four days 5 The Defendants have filed a full Defence and whilst there is no doubt that the Plaintiff was complaining the Defendants contend that there is no foundation for his allegation that his complaints were either ignored or not properly investigated In fact as the Plaintiff is or ought to be aware he was seen by the First Named Defendant and others on a number of occasions and when the First Named Defendant recatheterised him he found only a relatively small amount of urine in his bladder 6 The proceedings issued out of the office of this Honourable Court in 1989 but Notice of Trial was not served until the month of May 1996 Thereafter the Plaintiff appears to have discharged his original solicitors and took over carriage of the proceedings himself in the month of February 1998 In the month of July 1999 or thereabouts he appointed Damien Tansey Company Solicitors to act on his behalf Indeed Messrs Damien Tansey Company Solicitors served a Notice of Change of Solicitor and Notice of Intention to Proceed in the month of July 1999 In this regard I beg to refer to a true copy of the said Notice of Change of Solicitor and Notice of Intention to Proceed which I have pinned together and upon which marked with the letter A I have endorsed my name thereon prior to swearing hereof 7 However no further step has been taken by the Plaintiff or his new firm of solicitors Furthermore the Plaintiff s Notice of Trial was struck out on the 4th December 1998 and no new Notice of Trial has been served 8 The Defendants are most anxious to bring some finality to bear upon this case The complaint the subject matter of this suit relates to events which took place over thirteen and a half years ago and mere existence of this action against professional people causes them considerable distress 9 I would respectfully submit to this Honourable Court that the Plaintiff has been guilty of inordinate and inexcusable delay in the prosecution of this claim and that in the absence of any good reason for the delay the Plaintiff s claim ought to be dismissed for want of prosecution 10 The reply on behalf of the plaintiff was by way of affidavit sworn by Damien M P Tansey Solicitor He deposed 3 I say that Ms O Mara is correct when she indicates that Notice of Trial was served in or about May 1996 and that the matter did not progress between May of 1996 and July of 1999 However it would equally appear that during that period no steps were taken by the defendant to deal with the matter and they in fact participated in this delay From a review of the file I am unaware of any motion brought by the defendant during that period 4 The position is that this firm was approached by the plaintiff in or about July of 1999 to advise him in relation to this case and to act on his behalf We immediately engaged on a review of the file which was relatively substantial at this

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  • undoubtedly the case that as pleaded in the statement of claim certain aspects of the alleged agreement remain remarkably vague There was no agreement as to the details of the development to be carried out on the lands and the entire question of how the project was to be financed seems to have been left in the air It may be that at the trial of the action if it is allowed to proceed the plaintiff will be able to establish that there was an agreement between himself the defendants and Mr Dwyer that the company in question was to be formed that the lands when acquired were to be vested in the company and that the profits of any development were to be divided in the agreed proportions It is conceded on behalf of the plaintiff however that there was no agreement as to how the project was to be financed and that the details of the proposed development were also in effect left for further agreement Accordingly even making every assumption in favour of the plaintiff as to the stage which negotiations had reached they remained negotiations None of the parties would be in a position to hold the other parties to whatever arrangements in principle were envisaged if it was not possible to reach agreement on matters such as finance and the nature of the proposed development In these circumstances it seems to me that this constitutes one of those cases in which making every assumption in favour of the plaintiff the contract relied on could not possibly constitute a concluded contract between the parties which would give rise to any action at law I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiff s claim THE SUPREME COURT Keane C J Geoghegan J Fennelly J 316 00 BETWEEN LIAM LAWLOR PLAINTIFF RESPONDENT AND SEAMUS ROSS MENOLLY HOMES LIMITED AND MENOLLY PROPERTIES LIMITED DEFENDANTS APPELLANT JUDGMENT delivered the 22nd day of November 2001 by Keane C J The facts in this case are comprehensively stated in the judgment which will be delivered by Fennelly J and need not be set out by me The applicable legal principles are not in doubt This is not a case as Mr Frank Clarke SC conceded on behalf of the appellants in which it could be successfully contended that the statement of claim itself disclosed no reasonable cause of action or one that was frivolous or vexatious The appellants say however that the proceedings should have been struck out in the exercise of the inherent jurisdiction of the High Court to take that course where it is clear that the plaintiff s claim must fail That such a jurisdiction exists is beyond doubt However as was made clear by Costello J as he then was in Barry v Buckley 1981 IR 306 and by this court in Sun Fat Chan v Osseous Limited 1992 1 IR 425 it is a jurisdiction which

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  • it involved the acquisition by the joint venture through the vehicle of a company to be formed in which the plaintiff the first named appellant and Mr Peter Dwyer would be the shareholders in agreed shares of the Guinness lands upon which the company would construct a housing development In addition the joint venture would construct an underground infrastructure and foul and surface water services which would serve both the Guinness lands and extensive other lands in the area including some lands already in the ownership of the first or third named appellants and lands owned by third parties The revenue earned by any of the parties from the provision of such services to other developers would accrue to the joint venture company In his affidavit grounding the motion to dismiss the claim the first named appellant maintains that there was no concluded contract between the plaintiff and any of the defendants He agrees that he signed the handwritten document of 5th March and does not contest any of its contents He implicitly accepts that one or other of the defendants subsequently acquired the Guinness lands but says that the price was 19 000 000 and not 8 000 000 as mentioned in the document The plaintiff says that the latter sum was discussed as the minimum price at the meeting of 5th March The first named appellant says that Mr Peter Dwyer did not do anything subsequent to 5th March to advance negotiations or tender requisite capital By way of reply the plaintiff repeats that it was the first named appellant who requested that the issue of finance be dealt with at a later time He merely adds that the latter was aware that the plaintiff and Mr Peter Dwyer were at an advanced stage of finalising the financial arrangements that these arrangements were then discontinued but that the first named appellant said that the raising of finance would not be a problem for Newco The legal principles to be applied on an application of this kind are not in dispute As explained by reference to the judgment of Costello J in Barry v Buckley at page 308 it must be clear that the plaintiff s claim must fail The learned judge continued The jurisdiction should be exercised sparingly and only in clear cases but it is one which enables the court to avoid injustice particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence If having considered the documents the Court is satisfied that the plaintiff s case must fail then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irreparable wrong to the defendant This Court in Sun Fat Chan v Osseous Ltd 1992 I R 425 abstained from ruling on the existence of this kind of jurisdiction as its existence was not disputed McCarthy J commented that the High Court should be slow to entertain an application of this kind In reality the Court exercised the jurisdiction Hardiman J giving judgment in Supermacs Ireland Limited and another v Katesan Naas Limited and another 2000 I R 273 dismissing an application of the kind at present before the Court approved a dictum of Keane J as he then was in Lac Minerals v Chevron Corporation High Court unreported 6th August 1993 The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiff s contention Hardiman J commented that this was a very difficult hurdle to clear This and the similar remarks of Costello and McCarthy JJ underline the strictness of the applicable test namely that the plaintiff s claim is bound to fail In Barry v Buckley Costello J found that the test had been satisfied the offer to contract and all relevant solicitors correspondence were expressed to be subject to contract In Sun Fat Chan v Osseous Ltd this Court approved the decision of the High Court to dismiss a claim for specific performance of an agreement for the sale of land which was expressly subject to a condition as to the obtaining of planning permission The High Court had rejected the plaintiff s argument that the condition in question was for the benefit of the purchaser only This Court agreed Supermacs Ireland Limited also concerned a contract for the sale of land This Court in declining to exercise the jurisdiction rejected a number of submissions regarding the enforceability of contracts where certain terms had not been agreed These included the claimed need to have an agreement on the amount of a deposit on the completion date and on the obtaining of vacant possession Clearly all of these points were debatable to say the least The exercise of the jurisdiction to strike out could not have been justified Where the claim is as postulated by the test clearly bound to fail the court will normally exercise its jurisdiction to strike out It is also clear and I accept that the Court should be willing to assume in favour of the plaintiff that an appropriate amendment of the pleadings might save his case Furthermore it may be difficult to succeed on such a motion based only on the absence of a note or memorandum which satisfies the requirements of the Statute of Frauds Something may be found on discovery It is different where as in Barry v Buckley there is a note but it is headed subject to contract The question is whether the plaintiff s claim in the current case is so deeply flawed that it cannot succeed I assume in the plaintiff s favour that there was an agreement as pleaded a joint venture agreement where a company was to be formed between identified persons in agreed shares for the purchase of an identifiable holding of land at an agreed minimum price that housing development was to be carried out on those lands and that the opportunity of that development was to be used to carry out agreed and identifiable drainage and similar works and to plough the proceeds into the joint venture I merely say that I assume that because none of that is the decisive consideration in my mind I would in fact have serious doubts about the uncertainty of the description of the agreed development what density what type of housing and of the sewerage and drainage works over whose lands and according to what specification How could the agreement be binding if the land could not as envisaged be bought for the assumed price of 8 000 000 The fatal defect in the plaintiff s claim is in my view the clear evidence not disputed by the plaintiff that an integral part of the agreement of 5th March 1997 was that how the entire joint venture was to be financed was left over for discussion at a later date The plaintiff has described this term in the particulars furnished as a stipulation and from his affidavit it is clear that he wrote down the terms in order to formalise them To his credit therefore he does not seek to escape the implications of the signed handwritten document from which it is abundantly clear that the issue of finance was left over for future discussion That the matter of finance was of importance to both parties is agreed to be the case The plaintiff and Mr Peter Dwyer had been investigating it for some considerable time All parties knew that considerable capital investment would be required to finance the intended project This was not a case of a straightforward sale of property from vendor to purchaser where the law would not import or imply in the absence of express reference any need for financial provision The purchaser would be assumed to have the means The agreement in this case was for the formation of a company The parties did not address the question of the capital of that company at all Most crucially they agreed in the terms which the plaintiff was so careful to formalise that this issue would be discussed at a later date This provision was indisputably an important part of any arrangements between the parties for the purchase and development of lands In effect the development could not take place without finance The parties may well have reached an agreement in principle to enter into a joint venture and on their respective shares However they remained in negotiation so long as they had not agreed on finance Hence there was no concluded contract I would allow the appeal and dismiss the plaintiff s claim There are a number of alternative pleas in the statement of claim In my view these are all subsidiary to the central question of whether there was a concluded agreement In particular the claim based on negligent misstatement is in reality a restatement of the contract claim It is not a genuine claim in negligence for misstatement of fact It relates to the future For these reasons I would allow the appeal I would dismiss the plaintiff s claim in its entirety THE SUPREME COURT Record No 316 00 Keane C J Geoghegan J Fennelly J BETWEEN LIAM LAWLOR PLAINTIFF RESPONDENT AND SEAMUS ROSS MENOLLY HOMES LIMITED AND MENOLLY PROPERTIES LIMITED DEFENDANT APPELLANTS JUDGMENT delivered the 22nd day of November 2001 by FENNELLY J The defendants appellants hereinafter the appellants have appealed against the refusal of Mr Justice McKechnie in the High Court to accede to their motion to dismiss the plaintiff s claim for being frivolous or vexatious an abuse of the process of the court and not being maintainable in law They rely on the inherent jurisdiction of the court to strike out proceedings which are doomed to fail This jurisdiction was first fully explained by Costello J in Barry v Buckley 1981 I R 306 It is agreed that the court may exercise this jurisdiction only if it is demonstrated beyond argument that the plaintiff s claim must fail As a corollary it must be assumed that the facts will be established as the plaintiff alleges them With those strictures in mind I will endeavour to describe the plaintiff s claim The plaintiff is an engineer and businessman residing near Lucan Co Dublin The proceedings concern an alleged joint venture project for the development of substantial areas of land in West County Dublin The plaintiff pleads in the statement of claim that prior to March 1997 he and one Peter Dwyer were in the process of developing certain lands at or near but not limited to those lands situate at the Phibblestown Castaheany and Allendale areas of County Dublin for residential purposes and in addition were engaged in the process of evaluating the overall future development potential of the entirety of the lands It is here necessary to quote in full certain paragraphs of the statement of claim 5 Furthermore and with a view to the overall development of the lands as aforesaid and in particular certain other additional lands hereinafter referred to as the Guinness lands which same were situate at or near those outlined in the previous paragraph hereof all such lands being more particularly delineated in the map annexed hereto it was decided between the Plaintiff and the said Mr Peter Dwyer to act in co operation with the First and or Third Named Defendants herein for the purposes of the future development of all such lands which said Defendants were in the process of developing certain additional lands in the Castaheany Phibblestown area of County Dublin which they had purchased previously 6 Prior to embarking upon their intended proposed development of the lands as aforesaid the Plaintiff together with the said Mr Peter Dwyer and the First and or Third Named Defendants decided and so agreed that the most appropriate manner by which they should proceed with the development of the Guinness Lands referred to previously was by way of a joint venture partnership business It was at all times material hereto envisaged by the said parties that the said joint venture partnership would be established through the vehicle of a limited liability company 7 Accordingly by way of a joint venture partnership Agreement made on or about the 5th day of March 1997 between the Plaintiff of the one part the First and or Third Named Defendants of the second part and the said Peter Dwyer of the third part the said parties agreed to acquire and develop the aforesaid lands which said development was to include inter alia the construction of residential properties on the lands situate at Phibblestown Castaheany and Allendale County Dublin together with the installation and provision of all road connections and underground services connections both to the said lands as well as to all other lands adjacent thereto which could then or would in future avail of such services 8 At all times material hereto it was an express and implied term or condition of the aforesaid Agreement which said term or condition was evidenced by way of a note and or memorandum in writing that all profits and financial benefits on the aforesaid lands at Phibblestown Castaheany and Allendale County Dublin as well as such similar profits and financial benefits arising from the provision of both road connections and all underground services connections to the said lands together with all other lands in the vicinity thereof which same either availed of the provision of the said underground services connections or would do so in the future with all such profits and benefits accruing and being calculable subsequent to the discharge of all reasonable expenses and outgoings incurred in the development of the said lands would be divided between the aforesaid parties on the basis of their agreed shareholding in the aforesaid body corporate identified at paragraph 6 hereof which same was to be in the following manner namely In a reply to a request for particulars it is alleged that the shareholding in the body corporate to be formed was to be in the ratios 40 each to the first named appellant and Mr Peter Dwyer and 20 to the plaintiff The shareholdings were to be applicable to i to the totality of the Guinness lands ii to any Agreement entered into by the First and or Second and or Third Named Defendants or one or other of them or any combination thereof with a Company known as Manor Park Homes Limited and or its nominee whereby the said Manor Park Homes Limited and or its nominee availed of the aforesaid underground services connections and road connections iii to any Agreement entered into by the First and or Second and or Third Named Defendants or one or other of them or any combination thereof with the owners and or developers of those lands knows as the Greene Bros lands whereby the said owners and or developers of the said lands availed of the aforesaid underground services connections and road connections The essence of the plaintiff s claim is that the appellants did not perform the agreement so pleaded Instead the first named appellant caused the second named appellant to be formed as a subsidiary of the third named appellant and to purchase the so called Guinness lands and to have them developed for the benefit and profit of the appellants and without making any provision for the 20 share claimed by the plaintiff The plaintiff claims a number of declarations regarding the existence of the agreement pleaded as well as specific performance and other relief The terms of the alleged agreement and the circumstances surrounding its negotiation were further particularised in a reply to a request for particulars made by the appellants Two aspects of these particulars merit attention namely the nature and extent of the intended development and the means by which it was to be financed The Development The lands were to be all lands mentioned which would benefit from the installation of an underground infrastructure which could provide all necessary services and connections including road connections The development was to involve the construction of residential properties on the Guinness lands as well as the installation of the underground infrastructure necessary to drain those lands as well as all other lands in the near vicinity The plaintiff states that he and Mr Peter Dwyer had already retained the services of experts to design the underground infrastructure The particulars state that there were to be two large surface water mains together with foul sewer drains manholes and the requisite pipe work to drain all the lands in the natural catchment in the Castaheany Phibblestown area They also state that all this was explained to and discussed in detail with the first named appellant at a meeting in February 1997 whereupon the latter asked to be allowed to co operate with the plaintiff and Mr Dwyer in order bring into effect their advices apparently in relation to these services Finance The particulars state that the plaintiff and Mr Peter Dwyer had in late 1996 taken professional advice with a view to assembling a package to finance the acquisition and development and installation of services they then envisaged They also state that prior to the meeting of 5th March 1997 the first named appellant had expressed serious concern about his existing indebtedness and his unwillingness to provide finance for the underground services envisaged by the plaintiff In reply to a question about financing of the acquisition the particulars further state that the matter was raised by the plaintiff at the meeting on 5th March 1997 at the behest of the appellants and was to be discussed at a later stage as stipulated in a document of 5th March 1997 to which I will next refer and which is central to the present

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