Appeal finds that High Court ought to have heard Summons brought by Defendant rather than adjourn it generally.

by Damian McGeady

In Sherry v Murphy & Ors, the Court of Appeal heard an appeal from a judgement and Order of the High Court, the substance and effect of which was to refuse to fix a date for the hearing of a motion brought on behalf of a Defendant who challenged the adequacy of a Personal Injury Summons. The defendant sought several orders based on the alleged failure of the personal injuries summons to comply with High Court Procedure and the requirements of Part 2 of the Civil Liability and Courts Act, 2004.

When the motion was called counsel for the defendant asked for a date to be fixed for the hearing of the motion. This was opposed by counsel for the plaintiff who argued that the progress of the case was impeded by the fact that the first defendant had not delivered his defence and was seeking to have his defence assessed by way of a motion. The judge ruled that he should first deliver his defence and then bring his motion, which could be dealt with alongside the hearing of the action. The judge declined an application by counsel for the plaintiff to strike out the motion but rather adjourned it generally and reserved the costs.

The Substance of the Appeal was that the High Court judge exercised his discretion to adjourn the motion generally – or not to assign a hearing date – in a manner which irredeemably prejudiced the defendant. It is said that the effect of the order was to irredeemably defeat the objectives of Part 2 of the Civil Liability and Courts Act, 2004 and that the order made failed to have regard to where the balance of justice lay.

The Court of Appeal held that the suggestion that that the effect of the order was to irredeemably defeat the objectives of the Act probably put it too high but, did find that the defendant had an argument to make that the requirements of the Act had not been met in the way the claim against him was pleaded.

In considering correct High Court procedure and allowing the Appeal and remitting the motion to the High Court for hearing the Court acknowledged the difficulty that Judges face in matters such as these.

“I acknowledge that in the management of busy lists and scarce resources a significant margin of appreciation must be afforded to the list judge but in my view, he was led into error by the summary of the issues. In my view, the refusal of the High Court judge to fix a date for the hearing of the motion created a substantial risk of significant procedural unfairness coupled with a likelihood that no effective remedial action could be put in place later to address the very significant additional costs to which the first defendant was exposed in the event that his application proved to be successful.”