Deegan v Campbell (Approved)

Factual and Procedural Background

This opinion concerns the Plaintiff's application to extend the time to appeal an order made by the Deputy Master on 10 October 2023, which struck out the Plaintiff's action for failure to make full and proper discovery as required by an earlier court order dated 19 July 2021. The Plaintiff sought to set aside the striking out order and have the pleadings reinstated.

Legal Issues Presented

1. Whether the Plaintiff had a bona fide intention to appeal formed within the permitted time.
2. Whether a mistake occurred that justifies extending the time to appeal.
3. Whether there exists an arguable ground of appeal sufficient to warrant extension of time.
4. Whether the striking out of proceedings for failure to make discovery was appropriate under Order 31, rule 21 of the Rules of the Superior Courts.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff relied on an affidavit sworn on 7 December 2023 expressing a desire and intention to appeal the Deputy Master's order, though it did not specify when that intention was formed within the required ten-day period.
• The Plaintiff highlighted an ex parte application made by her senior counsel two days after the impugned order to lodge an appeal, arguing this demonstrated an intention to appeal within time.
• The Plaintiff's solicitor averred that relevant discovery documents only came into his possession after the Deputy Master's order, and that difficulties arose due to the illness of the Plaintiff's senior counsel and personal challenges faced by the Plaintiff.
• The Plaintiff contended that the most important criterion for extending time was the existence of an arguable ground of appeal, which was met.
• The Plaintiff's solicitor expressed confidence that full compliance with discovery orders could now be achieved, and that the failure to date did not warrant the drastic remedy of striking out the proceedings.

Respondent's Arguments

• The Defendant challenged the Plaintiff's assertion that the intention to appeal was formed within the ten-day limit, noting the absence of explicit averments in multiple affidavits.
• The Defendant argued there was no clear explanation or averment of mistake justifying the delay in appealing.
• The Defendant emphasized the Plaintiff's ongoing inadequate discovery despite multiple opportunities and adjournments before the Deputy Master.
• The Defendant asserted prejudice from the delay, including potential dimming of witnesses' memories, though no specific difficulties were identified.
• The Defendant expressed skepticism about the adequacy of any future affidavit of discovery given past conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the criteria from Eire Continental to assess the Plaintiff's application to extend time to appeal. Although the Plaintiff's affidavit did not explicitly state when the intention to appeal was formed, the court accepted the evidence of the Plaintiff's senior counsel's ex parte application to lodge an appeal two days after the order as sufficient to establish bona fide intention within the required period. The court acknowledged the absence of a clear explanation for the delay but held that this did not preclude extending time given the discretionary nature of the decision.

Regarding the striking out order under Order 31, rule 21, the court reviewed established case law emphasizing that such an order is a discretionary and exceptional remedy reserved for cases of wilful default or negligence. The court found that the Plaintiff's failure to make full discovery, while unsatisfactory, was not deliberate or malicious to the degree warranting striking out. The Plaintiff's solicitor had since obtained the necessary documents, and there was a realistic prospect of full compliance going forward. The court balanced the Plaintiff's constitutional right of access to the courts against the Defendant's claimed prejudice, finding the latter speculative and outweighed by the Plaintiff's right to litigate her claims.

Consequently, the court exercised its discretion to extend the time for appeal and to set aside the Deputy Master's order striking out the Plaintiff's proceedings, while reserving the question of final orders to a subsequent hearing.

Holding and Implications

The court's final decision was to ALLOW THE PLAINTIFF'S APPLICATION TO EXTEND TIME and ALLOW THE APPEAL to set aside the order striking out the Plaintiff's proceedings for failure to make discovery.

The direct effect of this decision is that the Plaintiff's action, previously dismissed, is reinstated, enabling the litigation to proceed. The court emphasized that striking out is a drastic remedy and that the Plaintiff must now comply fully with discovery obligations. No new legal precedent was established; rather, the decision applied established principles to the facts, underscoring the court's role in balancing procedural compliance against access to justice.