Corkery v Marine Motors LTD & Ors (Approved)

Factual and Procedural Background

The Plaintiff alleges that on 9 June 2012 he suffered serious personal injuries, including a traumatic amputation of his left arm above the elbow, when a rigid inflatable boat ("RIB") he was using, fitted with an engine purchased from the first Defendant, malfunctioned due to a defective kill cord. The Plaintiff claims negligence and breaches of statutory duty against multiple Defendants, including Company A (Marine Motors Ltd), Company B (Bombardier Recreational Products Inc, "BRP"), and related entities, as well as a Third Party (GE Commercial Distribution Finance Europe Ltd).

The Plaintiff first instructed solicitors approximately eight months after the accident due to the severity of his injuries and hospitalisation. Subsequent to extensive investigations and correspondence, proceedings were issued on 25 April 2014 naming the first and second Defendants. Over time, third and fourth Defendants were joined following further discovery and authorisations.

The litigation involved complex issues regarding the correct manufacturer Defendant, with initial communications directed to BRP Canada, who engaged in discovery and expert appointments, before asserting that the correct manufacturer was BRP US Inc. Despite this, the Plaintiff was not found to be at fault for any pre-commencement delay given the reasonable enquiries and redirections made by his solicitors.

Significant procedural history includes multiple discovery affidavits, expert reports, joint inspections of the engine and ignition switch, and extensive medical treatment and reporting relevant to the Plaintiff’s injuries and quantum of damages. The Defendants reserved their rights to seek dismissal for delay on several occasions but continued to engage actively in progressing the case towards trial.

A trial date was assigned for 15 June 2022 but was vacated at the insistence of the Defendants shortly before the present motion was issued on 7 February 2022 seeking dismissal for want of prosecution due to alleged delay by the Plaintiff.

Legal Issues Presented

1. Whether the Plaintiff was guilty of inordinate and inexcusable delay in prosecuting the proceedings, justifying dismissal for want of prosecution under Order 122, Rule 11 of the Rules of the Superior Courts.
2. Whether, if such delay existed, the balance of justice favours dismissal of the Plaintiff’s claim.
3. Whether the Defendants’ conduct, including repeated reservations of rights but continued engagement in trial preparation, amounts to acquiescence, affecting the application of the Primor test.
4. The extent and nature of any prejudice suffered by the Defendants as a result of the alleged delay.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed chronological review of the case history, focusing on the Plaintiff’s conduct in prosecuting the claim and the Defendants’ conduct in responding. It applied the three-part Primor test to assess whether dismissal for want of prosecution was warranted.

Regarding pre-commencement delay, the Court found none attributable to the Plaintiff given the serious nature of his injuries and appropriate steps taken once solicitors were instructed. The Plaintiff’s solicitors made reasonable enquiries to identify the correct Defendant, and delays caused by redirections to different corporate entities were not attributable to the Plaintiff.

Post-commencement, the Court identified periods of inordinate delay by the Plaintiff, particularly between December 2017 and November 2020, reflecting a 23-month gap in formal pleadings. However, the Court found this delay excusable due to ongoing, substantive progress in the background, including medical treatment, expert reports, and disclosure schedules. The Plaintiff’s efforts to progress the case towards trial continued even during periods when formal pleadings were not filed.

The Defendants repeatedly reserved their rights to seek dismissal for delay but simultaneously engaged actively in progressing the case towards trial, including exchanging disclosure schedules and experts’ reports, arranging joint engineering inspections, and agreeing on trial logistics. This conduct was found to amount to something akin to acquiescence, or at least to significantly undermine their entitlement to dismiss for delay.

The Court rejected the Defendants’ assertions of prejudice due to faded memories or unavailability of evidence. All witnesses of fact and experts remain available, and no evidence was presented showing any material prejudice caused by the delay. The death of one expert retained by a different Defendant was not considered prejudicial to the Defendants seeking dismissal.

The Court emphasised the serious, life-changing nature of the Plaintiff’s injuries, the ongoing medical treatment and expert evidence relevant to quantum, and the constitutional right of access to the courts. It found that dismissal would disproportionately and unjustly terminate this right without sufficient justification.

Balancing all factors, including the Defendants’ responsibility for some delay through inadequate discovery and their conduct in progressing the case, the Court concluded that the balance of justice weighs heavily against dismissal.

Holding and Implications

The Court DENIED the Defendants’ motion to dismiss the Plaintiff’s claim for want of prosecution.

This decision means the Plaintiff’s claim will proceed to trial. The Court emphasized that the Defendants failed to discharge the burden of proving both inordinate and inexcusable delay and that the balance of justice favours allowing the claim to proceed. The Defendants’ repeated reservations of rights without action, coupled with their active participation in trial preparation, undermined their application.

No new precedent was established; the ruling applies established principles to the facts of this case. The Court also indicated that costs should generally follow the event but placed a stay on execution of costs pending determination of the underlying proceedings, reflecting the nuanced findings regarding delay and responsibility.