The Court of Appeal has ordered that a High Court hearing be held on a motion by the first defendant in a personal injuries action, after finding that the refusal to set a hearing date created a substantial risk of significant procedural unfairness.
The appeal concerned a High Court order made on 30 November 2022. The High Court had declined to fix a date for the first defendant’s motion challenging the adequacy of the personal injuries summons and seeking dismissal of the action against him. Instead, the motion was adjourned generally, with costs reserved.
The underlying claim arises from an accident on 16 December 2020. The plaintiff, a roofer, fell through an opening intended for a skylight while working on the roof of a new house under construction in the side garden of the first defendant’s house at 24 Seaview Park, Shankhill, Dublin 18.
The first defendant’s motion argued that the summons did not give the required particulars of the alleged wrong, negligence and claim against him. It also argued that the summons disclosed no cause of action against him. The Court of Appeal noted that the claim, as pleaded, described him as the property owner but did not allege that he was the occupier of the site or responsible for the building work. Those were arguments for the motion hearing, not findings by the Court of Appeal.
The plaintiff opposed assigning a hearing date, arguing that the motion delayed progress and could be dealt with at trial. The Court of Appeal held that the first defendant was entitled to have the motion heard, including the opportunity to argue that he should not be required to deliver a defence before the pleading issue was determined. It said postponing the issues to trial risked exposing him to significantly greater costs if his application ultimately succeeded.
The court allowed the first defendant’s appeal, dismissed the plaintiff’s cross-appeal on costs, and remitted the motion to the High Court for hearing. It expressed no view on the merits of the first defendant’s arguments. The judgment does not dismiss the claim against him or determine liability for the accident.