O'Malley v Hermann & Anor (Approved)

Factual and Procedural Background

This opinion concerns an application by the defendants for leave to make a late lodgement of a sum of money in a medical negligence action. The proceedings were initiated by the Plaintiff on 13th August 2012 via Personal Injury Summons. The defendants delivered their Defence on 17th September 2018. Notice of trial was issued on 26th July 2019, and the matter was scheduled for hearing on 16th March 2022. The defendants seek leave under Order 22 rule 1(7) of the Rules of the Superior Courts to make this late lodgement. The Plaintiff opposes the application, arguing that recent without prejudice settlement talks disclosed the Plaintiff's position, and granting leave would unfairly disadvantage the Plaintiff.

Legal Issues Presented

1. Whether the Court should grant leave to the defendants to make a late lodgement of money in satisfaction of the Plaintiff's claim under Order 22 rule 1(7) of the Rules of the Superior Courts.
2. Whether recent without prejudice negotiations and the Plaintiff "showing her hand" constitute sufficient grounds to refuse leave for late lodgement.
3. What terms and conditions should accompany the granting of leave to ensure fairness and prevent undue litigation advantage.

Arguments of the Parties

Defendants' Arguments

• The defendants seek leave to make a late lodgement pursuant to the Rules of the Superior Courts, despite the delay since the Defence was filed and the proximity of the trial date.
• The discretion granted by Order 22 rule 1(7) is wide and unqualified, allowing the Court to consider public interest and fairness.
• No mala fide conduct or special circumstances exist that would disentitle them from obtaining leave.

Plaintiff's Arguments

• The Plaintiff opposes the application on the basis that recent without prejudice negotiations resulted in the Plaintiff revealing her position ("showing her hand").
• Granting leave would unfairly disadvantage the Plaintiff by conferring an undue litigation advantage on the defendants.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court recognized that Order 22 rule 1(7) confers a broad discretion to grant leave for late lodgement, which must be exercised judicially with regard to public interest and fairness. The public interest favors permitting late lodgement to deter unnecessary litigation and protect defendants who offer sums exceeding the plaintiff’s claim value, as established in Ely v Dargan. The Court noted that unsuccessful settlement negotiations or mediation do not automatically preclude granting leave unless there is evidence of mala fide conduct or other disentitling circumstances, as seen in the White Young Green Environmental case.

In applying these principles, the Court found that the Plaintiff "showing her hand" during without prejudice talks was insufficient to refuse leave absent evidence of bad faith or manifest unfairness. The timing of the application—three months before trial but over three years after the last pleading—was significant. To balance interests, the Court decided to grant leave but imposed conditions: the lodgement would not take effect until the second day of trial, ensuring the Plaintiff’s entitlement to costs up to and including the first day of trial. These terms aimed to prevent the defendants from obtaining an undue litigation advantage due to the lateness of the application.

Holding and Implications

The Court GRANTED the defendants leave to make a late lodgement of money in satisfaction of the Plaintiff’s claim under Order 22 rule 1(7), subject to conditions ensuring fairness and preventing undue litigation advantage. Specifically, the lodgement shall not take effect until the second day of trial, and if accepted before that date, the Plaintiff is entitled to costs up to and including the first day of trial.

The direct effect is that the defendants may lodge money late but only under terms that protect the Plaintiff’s position. No new legal precedent was established; the decision adheres to established principles balancing public interest and fairness in late lodgement applications.