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  • Dismissal

    Termination of Employment

    In the case of Cassidy v. Martin Butterly & Company Ltd [2014] IEHC 203 (High Court, Ryan J, 10 April 2014) the High Court refused an application to dismiss the plaintiff`s claim for wrongful termination of employment issued in 2000, notwithstanding nine years of non-action, where the plaintiff had provided some explanation for his inactivity and the defendant was not in a position to point to specific prejudice.

    What was at issue?

    This case related to an Application to dismiss claim for want of prosecution under O. 122, r. 2 of the Rules of the Superior Courts. While in the employment of the defendants the plaintiff had sustained injury and, after his recovery, the defendants had refused to permit him to return to work. There was issue as to whether there was a subsisting contract of employment.

    The Facts

    dockers

    dockers and stevedoring

    The plaintiff was employed as a docker with stevedoring firms. His Plenary Summons was issued in 2000 but no apparent steps had been taken between 2002 and 2011. The plaintiff`s newly appointed solicitors served a Notice of Intention to Proceed issued in 2012. The question for the Court was whether the nine year delay was inordinate and inexcusable and in particular whether there was any specific prejudice to the Defendants.

    The fact that the plaintiff did not have representation

    Four Courts, Dublin

    High Court, Dublin

    The Court`s decision was influenced by the fact that, for part of this period, the plaintiff`s former solicitor had taken no active part in the proceedings between 2005 and 2011 and that for the last few years the plaintiff had been forced to progress his claim on his own. Mr. Justice Ryan stated:

    It seems to me to be important therefore, that it should be left open to this defendant and the other defendants to prove at the hearing any express prejudice that arises and to revisit this question of dismissal of the action in evidence, argument and submissions at the trial. It will be a matter for the trial judge to give such importance as he or she thinks appropriate to any element of actual prejudice that arises and to weigh that in the balance in considering the decision in the case.

     

    Lay Litigants and the Court

    There is no doubt but that a lay litigant (a plaintiff without a solicitor) will always get extra sympathy from a court. This is only right, since the court will appreciate the fact that the court process is by its nature complicated and difficult for any lay litigant to process. In this instance the lay litigant was effectively without representation for 6 years, even though his former solicitor was still on record for him. Since the defendants could show no prejudice by this delay it was inevitable that the judge would be sympathetic to the plaintiff.