The Court of Appeal has restored the defence of The Old Shebeen Limited in a personal injury action, finding the company had been taken by surprise when its defence was struck out. The decision allows the claim to proceed with the defence in place; it does not decide whether the company is liable for the alleged injury.
The appeal concerned an order made in March 2012 by the High Court Master, who struck out the company’s defence after it failed to make discovery. The High Court refused to extend time for an appeal. The Court of Appeal allowed the company’s appeal from that refusal and reinstated the defence, but imposed strict conditions.
The claim arises from an alleged workplace accident on 15 March 2005. The plaintiff’s case is that he was working at licensed premises in Moate when liquid from a small drum of chemicals spilled onto his foot, causing chemical burns that required surgery and hospitalisation. The company’s defence is that the plaintiff was no longer its employee at the time and that he worked at a different public house, owned and operated by a separate company. Those are disputed claims; the Court of Appeal did not determine which account is correct.
The court accepted that the defendant company had intended to defend the action and relied on its former solicitors to protect its position. The judgment said the solicitors’ practice appeared to have been wound down in a disorderly fashion, and that the company was unaware its defence had been struck out until the case was listed for hearing in 2014. The court considered the circumstances sufficient to show the company had been taken by surprise, despite its legal representation at an earlier hearing.
The court also found the company had demonstrated a reasonable prospect of defending the proceedings, based on its position that the plaintiff had sued the wrong defendant and on employment records it relied upon. It expressly declined to assess the substantive merits of that defence.
Under the conditions imposed, the company must file an affidavit of discovery within four weeks of delivery of the judgment and seek an early trial date by motion in the High Court. It must also pay the plaintiff €7,500 on account of costs within two months, and bear the plaintiff’s costs in the litigation from December 2011 to the date of judgment, with those costs to be taxed if not agreed. The court said there was little room for further delay after 11 years since the alleged incident.