The High Court has refused an application by Marie Patricia Murphy to set aside a notice discontinuing her personal injury action against Digby Bridge Sand and Gravel Company Limited. The motion, filed on 21 March 2023, was heard by Mr Justice Tony O’Connor, who delivered judgment on 12 May 2023.
Murphy’s 2018 action sought damages for fractures to her left elbow and right wrist. She alleged she tripped over a speed ramp near No. 1, Thomond Road, Ballyfermot, on 24 February 2017, while running on the footpath and trying to avoid a skip. The judgment records those circumstances as allegations.
After Digby’s solicitors said the company had no skip near the location, Murphy issued a separate action in 2019 against Panda Waste and related parties. In those proceedings, Panda’s defence alleged that Digby had hired the skip and was responsible for its placement. An affidavit supporting an application to join Digby as a third party also stated that Panda’s evidence at trial would be that Digby had hired the skip for works at the address and instructed Panda where to place it. These were pleadings and anticipated evidence, not findings in this motion.
Murphy argued that the discontinuance followed representations by Digby’s solicitors. Her counsel proposed withdrawing it so the 2018 case could be consolidated with the 2019 proceedings. He acknowledged it had been open to Murphy to seek to join Digby as a defendant in the later action, but said that would require an application to the Personal Injuries Assessment Board (PIAB). Counsel also raised estoppel. No submission was made about the statute of limitations.
The judge noted that Digby was no longer a party to the 2018 proceedings and had no standing at the motion hearing. He recognised that seeking PIAB authorisation again could delay Murphy, but questioned why she had not applied to name Digby as a defendant when, or soon after, Panda’s application to join Digby as a third party was heard on 11 October 2021.
The court said Murphy might plead Digby’s solicitors’ representations in a reply to a defence in the 2019 proceedings if that defence raised the statute of limitations. It held that the possible delay in obtaining PIAB authorisation was not enough to invoke the court’s limited inherent jurisdiction. The application to set aside the notice of discontinuance was refused. The judgment does not determine the underlying injury claim or the allegations about the skip.