We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
14 August 2007
In a significant victory for tobacco companies, a case brought by an individual for personal injuries caused by the effects of smoking was recently struck out by the High Court on the grounds of inordinate and inexcusable delay on the part of the plaintiff for prosecuting his claim 13 years after the date of accrual of the action and by reason of lapse of time.(1)
The plaintiff brought an action for injuries sustained following a lifetime of smoking the defendant companies' cigarettes. Proceedings were commenced in January 2000 but not served on the defendant for eight months. The plaintiff delayed issuing a statement of claim until December 2003.
The defendant brought a motion seeking that the plaintiff's claim be dismissed for want of prosecution on the grounds of inordinate and inexcusable delay in the commencement and prosecution of his claim, which they argued had prejudiced their ability to defend the claim, such that the balance of justice required that (i) the claim be dismissed, and/or (ii) an order pursuant to the inherent jurisdiction of the court be issued dismissing the claim by reason of lapse of time and/or pursuant to Article 6 of the European Convention on Human Rights - which provides, among other things, that "in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time".
In relation to the first ground advanced by the defendant, the court stated that a claim to dismiss for want of prosecution cannot arise if, having issued proceedings within the statutory time limits, a plaintiff moves with expediency and within the time limits provided by the rules of court. The proceedings can be instituted only once the cause of action accrues, which in this case was found to be the date of diagnosis of smoke-related illness in September 1996.
The defendant argued that it had been prejudiced by the delays through the unavailability of witnesses with direct knowledge of events relevant to the allegations made by the plaintiff. The central thrust of the plaintiff's arguments was that the tobacco companies knew at all material times that smoking was dangerous and nicotine addictive, and that litigation of this type can be conducted in a fair manner despite the lapses of time involved.
The court noted that the probable trial date of the case was late 2009. This would mean a 13-year delay between the accrual of the cause of action and the trial. The court was satisfied that this represented an inordinate delay in the prosecution of the plaintiff's claim. It then considered and rejected the excuses proffered by the plaintiff to explain the delay, finding that they were not matters which should have delayed the preparation of the plenary summons or the statement of claim.
Having found the delay to be inordinate and inexcusable, the court went on to consider in its discretion whether the balance of justice was in favour of the case proceeding. The court found that despite the voluminous documentation in the case, there were issues before the court which could be fairly addressed only through oral testimony from those with personal knowledge of relevant events.(2) The passage of time since the date of accrual increased the likelihood of witnesses' memories having faded for those who were alive and available and the increasing likelihood of there being deficiencies in documentary records. The court found that the delays in bringing the case to this point were due to the plaintiff's intransigence rather than to any action of the defendant.
The court found there to be a substantial risk that it would not be possible to have a fair trial, and that to ask the defendant to meet the plaintiff's claim some 13 years after the accrual of the cause of action ran contrary to the implied constitutional principle of basic fairness of procedure. In these circumstances the court found for the defendant on the first ground and the claim was dismissed on the balance of justice by reason of inordinate and inexcusable delay and for want of prosecution.(3)
Similarly, in relation to the second ground, applying the test set out in Ó Domhnaill v Merrick,(4) the fundamental questions to be asked were whether (i) by reason of lapse of time, there was a real risk of an unfair trial, and (ii) there was a clear and patent unfairness in asking the defendant to defend the action. The judge found that the crucial distinction between this ground and the former was that in the former the relevant starting date was the date of the accrual of the cause of action in 1996, whereas in the latter the relevant starting date was 1942, being the earliest reference in the pleadings to material alleging the health dangers of smoking, and to 1960 when the plaintiff started smoking.
The court found that a significant number of the essential personnel who would have been in a position to deal with the defendant's state of knowledge as to the effects of smoking from 1942 onwards were no longer available to give evidence. For a court to be asked to determine issues of fact of the nature required by the claim in the absence of many of the persons involved would result in basic unfairness of procedure, give rise to a real and serious risk of an unfair trial, and would fail to provide the defendant with a fair hearing within a reasonable time of the wrongful asking plaintiff. The claim was also struck out on this ground.(5)
Perhaps of most interest is the court's finding in relation to the second ground. The reality is that most tobacco plaintiff have claims relating to prolonged and continuous exposure to tobacco smoke dating back over often very lengthy periods. In the circumstances the individuals at tobacco companies who would have personal knowledge of issues in the case are often likely to have passed away or to have faded memories of relevant facts. The plaintiff cited a number of decisions from England(6) and New Zealand(7) which, it was submitted, were authority for the proposition that this type of litigation can be conducted in a fair manner despite the passage of time between the commencement of smoking, the date of accrual of the action and the date of hearing.
After considering the cases in turn, the court rejected this argument, stating that:
"The courts in this jurisdiction have never taken the view that they must do the best they can, or that defendants have to accept the best the court can do, in whatever the circumstances and irrespective of whether there is prejudice or not."
For further information on this topic please contact Michael Tyrrell or Daniel Scanlon at Matheson Ormsby Prentice by telephone (+353 1 232 2000) or by fax (+353 1 232 3333) or by email (email@example.com or firstname.lastname@example.org).
(5) The High Court held that Article 6 of the European Convention on Human Rights was an extra factor to be added in to consideration by the court, though subject to the application of existing Irish law.
(6) Including Thompson v Smiths Ship Repairers (North Shields) Limited (1984) 1 QB 405, which concerned a hearing loss case covering a period of in excess of 40 years; and Holtby v Brigham and Cowan (Hull) Limited  3 All 421 ER concerning a plaintiff who was exposed to asbestos from 1942 to 1981.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.