The Court of Appeal has dismissed two appeals by lorry driver Paul Sweeney, leaving in place High Court orders that struck out his personal injuries proceedings against his former employer and a commercial garage.
The appeals concerned orders made on 23 April 2012 after the High Court dismissed the proceedings for want of prosecution. In a judgment delivered on 20 February 2019, Ms Justice Baker said the High Court had been entitled to find that Mr Sweeney’s delay was both inordinate and inexcusable and that the balance of justice favoured dismissal. The Court of Appeal declined to interfere with those orders.
Mr Sweeney’s claim arose from an alleged crash in January 2001. He said the brakes on a lorry supplied for his work were faulty, and that after the vehicle was inspected at the second defendant’s garage, the brakes failed the next day as he drove around a bend at Killydoon, County Cavan. The lorry allegedly hit a farmyard gate pier, injuring his left foot, ankle and leg. These were allegations in the claim, not findings on the accident or liability.
The plenary summons was issued in December 2003, and the statement of claim was served in August 2006. The Court of Appeal noted more than five years of inactivity after that, before the defendants brought motions to dismiss. It said the claim was pleaded as a straightforward personal injuries case and that no evidence substantiated claims of complexity or difficulty obtaining expert evidence. The court also rejected the argument that changes in legal representation excused the delay.
In weighing the balance of justice, the court considered the death of Cecil Keating, the first defendant’s principal, in February 2008. The first defendant said Mr Keating had been told about the accident, completed an accident report and discussed the incident and its possible causes with Mr Sweeney. The court held that the loss of his evidence created real prejudice, including a potential effect on the first defendant’s ability to defend the claim and any contribution or indemnity claim against the garage. The continued availability of the garage foreman did not remove that prejudice.
The court also noted a further three-year delay before Mr Sweeney sought directions for the appeal in October 2017. It concluded that he had shown no sufficient countervailing circumstances to justify allowing the case to proceed. The appeals were dismissed; the Court of Appeal did not decide whether the accident occurred as alleged or whether either defendant was liable.