O'Neill v Dublin City Council & Anor (Approved)

Factual and Procedural Background

The Plaintiff alleges that on 17 November 2015, she tripped and fell. Following this incident, a Personal Injuries Assessment Board ("PIAB") authorisation was issued on 27 July 2016 to bring proceedings against the first named Defendant, Company A. A personal injuries summons was issued on 21 September 2016, and a defence was delivered by Company A on 16 January 2017. In September 2019, an orthopaedic surgeon concluded that the Plaintiff did not require surgery despite chronic lower back pain.

On 9 April 2020, PIAB authorised proceedings against the second named Defendant, Company B. By consent, Company B was joined as co-defendant on 9 July 2020, and an amended summons was issued on 15 July 2020 alleging that one or both Defendants were occupiers responsible for works causing the Plaintiff's fall. Company B delivered its defence on 27 November 2020, pleading, inter alia, that the claim was statute barred and that the Plaintiff delayed unreasonably in prosecuting the proceedings. The Plaintiff replied on 15 February 2021, claiming she only became aware of Company B's involvement following correspondence dated 28 February 2020 from Company A.

Company B set the proceedings down for hearing on 29 March 2021, and a trial date of 20 October 2022 was assigned. The Plaintiff sought consent to remit the proceedings to the Circuit Court on 11 August 2022, which was declined by Company B. Company A did not object to the remittal application and was not represented at the motion hearing. The trial scheduled for October 2022 was adjourned pending determination of the remittal application, with the parties able to seek a new trial date thereafter.

Legal Issues Presented

1. Whether the High Court should remit the proceedings to the Circuit Court pursuant to Order 49(7) of the Rules of the Superior Courts ("RSC").
2. The impact of delay and costs incurred on the appropriateness of remittal at this stage of proceedings.
3. The applicability of relevant legal principles and precedents concerning remittal and costs orders in personal injury actions.

Arguments of the Parties

Appellant's Arguments (Plaintiff)

• Remittal would result in cost savings, including the avoidance of briefing senior counsel and a greater likelihood of agreeing medical reports in the Circuit Court.
• Company B has not provided specific figures for costs incurred since July 2020, despite having obtained High Court costs orders previously.
• Scale fees in the Circuit Court are lower than those in the High Court.
• Reference to the statement of Peart J. in Moin v. Sicika and O'Malley v. McEvoy [2018] IECA 240 highlighting legislative intent to encourage remittal where damages fall within Circuit Court jurisdiction to minimize costs.
• Submission that the legislature intends courts to accede to remittal applications to reduce parties' costs.

Respondent's Arguments (Company B)

• The Plaintiff unreasonably delayed bringing the remittal application, despite knowing since September 2019 that surgery was not required; no excuse for delay was offered.
• Company B will still incur fees for senior counsel and solicitor fees from July 2020 to June 2022, which may not be recoverable in the Circuit Court due to statutory limitations on costs orders.
• Reliance on the ex tempore judgment of Heslin J. in Briedis v Ryan Investments Trading as Hertz Rent a Car and Puce [2020] IEHC 640, which is factually analogous and emphasises the need for explanation for delay in remittal applications.
• The Plaintiff has not addressed the Circuit Court's inability to award differential costs for the period from July 2020 to June 2022.
• Delay in the Circuit Court process is significant, with examples of 12 to 18 months from Notice of Trial to hearing date, potentially infringing the right to a timely trial under Article 6 of the European Convention on Human Rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the application under Order 49(7) of the RSC, which allows remittal of proceedings pending in the High Court to the Circuit Court if the case is deemed more suitable there. The Court noted that Order 63(1)(33) applies only with consent, which was not present here.

The Court acknowledged the Plaintiff's submissions regarding cost savings and legislative intent favouring remittal when damages fall within the Circuit Court's jurisdiction. However, the Court emphasized the significant and unexplained delay since September 2019 in making the application, during which Company B prepared for a High Court plenary trial.

The Court gave considerable weight to the absence of any justification for delay and the binding authority of Heslin J.'s judgment in Briedis, which requires explanation for delay in remittal applications. The Court also took into account the statutory limitation preventing the Circuit Court from awarding differential costs for the period from July 2020 to June 2022, a factor not accommodated by the Plaintiff.

Furthermore, the Court considered the right to a fair and timely hearing under Article 6 of the European Convention on Human Rights, noting the potential for significant delay if remittal were granted, with Circuit Court hearing dates typically 12 to 18 months after notice.

While Company A did not oppose remittal, the Court was reluctant to refuse it outright but ultimately was not satisfied that the Plaintiff's position distinguished the binding precedents sufficiently to warrant remittal. The Court also noted that the High Court trial judge could consider the Plaintiff's application and the consent of Company A in any future costs applications.

Holding and Implications

The Court's final decision was to REFUSE THE APPLICATION TO REMIT the proceedings to the Circuit Court at this stage.

The direct effect of this decision is that the proceedings will remain in the High Court, and the parties will apply for a new trial date there. No new precedent was established, and the Court's ruling underscores the importance of timely applications for remittal and the consideration of costs and delay factors in exercising judicial discretion under Order 49(7) RSC.