Ahead of McKinty and Wright’s annual CPD Session on 30th June 2017, Kevin discusses recent cases / points of interest for those dealing with claims litigation in Northern Ireland. The second part of the series focuses on Limitation: -
The High Court recently considered two issues which have been dogging Limitation cases in the last few years: whether an application should be taken before the Master as a preliminary issue and; when the Court should strike out a Plaintiff’s case based upon affidavit evidence alone.
Anyone who has considered making an application before the Master to strike out a Plaintiff’s claim because it is Statute Barred, or has brought such an application, will know that there are very limited circumstances in which those applications are successful.
However, the recent case of Gordon v McKillens (Ballymena) Ltd  NIQB 32 dealt with a matter where the Defendant succeeded in having the Plaintiff’s case struck out by way of Summary Judgment before the Master.
The case involved a Plaintiff who sustained injury in an accident in the Defendant’s shoe shop in Ballymena on 22 October 2008. On 14 October 2011, just prior to the expiry of the three-year limitation period, a writ of summons was issued but “due to an error in her solicitor’s office that writ of summons expired on 14 October 2012 without having been served.” [i]
On 29 April 2013, some 1 year and 6 months after the expiry of the Limitation period, the Plaintiff then issued a second Writ of Summons. The Defendant sought to challenge this by way of an Application pursuant to the Limitation (NI) Order 1989. The matter appeared before the Master who decided not to apply his discretion under Article 50 and dismissed the action. The Plaintiff’s representatives appealed the decision to the High Court.
His Lordship Stephens J, on hearing the Appeal, considered firstly that, in accordance with the amendment of Order 32 by way of the introduction of the amended Rule 12A on the 1st September 1982, a Master has jurisdiction to hear such applications.
Secondly, the Court considered the mode of application and satisfied itself that the application can be by way of a Summons under Order 32 Rule 12A, for instance and if, on the hearing of the Summons, the Court cannot properly have regard to all the circumstances of the case, consideration should be given to a Preliminary Trial.
Two points made about Preliminary Issues: -
- If the Court is giving consideration to ordering a preliminary issue, then great care and discretion should be exercised to avoid effort between the preliminary issue and the substantive trial itself and it may well be that a trial of such a preliminary issue will not differ much from the entire trial itself, especially as the Court has to have regard “to all the circumstances of the case.” [ii]
- In the High Court the trial of the preliminary issue, which is a part of the trial, should be by a Judge, rather than a Master.
His Lordship, determined that an application for a preliminary direction on Limitation before the Master can be appropriate, however only where all the circumstances of the case are available for consideration.
His Lordship reminded the Court that there are several considerations set out under Article 50(4) of the 1989 Order which give the Court a discretion to allow a Plaintiff to proceed with an action for personal injuries, notwithstanding that the time limited by Article 7 of the Order has expired, if it appears to the Court that it would be equitable to do so, having regard to the degree to which Article 7 prejudiced the Plaintiff and the degree to which any decision under Article 50 would prejudice the Defendant.
In essence, Article 50 requires the Court to engage in a balancing exercise, weighing the prejudice to the Plaintiff if the time limit is not extended, against the prejudice to the Defendant if it is extended and Article 50(4) also clearly states that the Court must have regard to all the circumstances of the case. The Judge sets out the following: -
“It seems to me that in the exercise of the discretion the basic question to be asked is whether it is fair and just in all the circumstances to expect the Defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important not so much for itself as to the effect it has had. To what extent has the Defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus there may be some unfairness to the Defendant due to the delay in issue, but the delay may have arisen for so excusable a reason that, looking at the matter in the round, on balance it is fair and just that the action should
proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the Defendant and partly because of the reasons for the delay or its length are not good ones.” [iii]
Stephens J turned then to the facts of the case before him and determined that issues such as definition of each witness’ recollection, were relevant to all the circumstances of the case, and required further clarification to the extent that he could not make an equitable decision in the absence of all the circumstances of the case. He therefore invited the parties to consider presenting further affidavit evidence, a trial of the preliminary issues (before a Judge rather than the Master), or to have the case progress to the substantive trial.
The decision here suggests that unless a Master, or any other Judge for that matter, can have regard to all the circumstances of the case when considering an application to strike out on foot of a Limitation argument, then he should not dismiss the action. Further, one can see that it will be difficult for a Master to strike a balance between not straying into a Trial on Preliminary issues –which is a right reserved for Judges only- and ensuring that he has taken equitable consideration of all the circumstances of the case.
As a result, it is likely that there will be very limited circumstances in which a Master can determine issues of Limitation. It is much more likely that the procedural role of the Master will be either to dismiss such applications as are warranted, to direct that the issue be raised with the Trial judge on the substantive hearing, or to Order a Preliminary Trial before a Judge in the very limited cases which will lend themselves to conditions within which all the circumstances of the case can be heard in a limited legal context, so as to avoid duplication of the Trial Hearing.
For more information, contact Kevin
To read the Judgment in full, click here
[i] Gordon v McKillens (Ballymena) Limited  NIQB 32 para. 1
[ii] Ibid. para. 7
[iii] Ibid. para. 36, quoting Smith L.J, Cain v Francis  EWCA Civ 1451;  QB 754