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Eidha v Toropdar, High Court, 16 April 2008

30 June 2008
The issues

Delay – limitation – whether Defendant entitled to declaration that he was not liable in respect of an unissued claim against him.

The facts

On the 22nd June a child, who was then 10 years old, was injured when he ran out from a footpath in front of a bus in such a way that the driver maintained the collision was unavoidable. The child suffered serious personal injuries and, at the time of the Hearing, it was possible that he might never again regain full mental capacity. On the 27th April 2005 the solicitors for the child wrote a detailed letter before action and on the 16th June they indicated an intention to issue proceedings. At the time of the drivers Application for relief, no proceedings had been issued on behalf of the child. On the 19th December 2006 the driver, through his insurers, began proceedings for a declaration that he was not liable to the child for any personal injury of consequential loss of damage sustained by the child as a result of the accident. Unusually therefore, the driver was the Claimant in the action and the child was the Defendant.

The matter was transferred to the High Court and came before the Master for Case Management when the Defendant applied for an Order that there be a Trial of the preliminary issue as to whether the claim for negative declaratory relief was available in an action in respect of personal injuries where the time limit under the Limitation Act for the commencement of proceedings had not expired. The Master refused to make such an Order and gave directions for a Trial of all issues, save for quantum of damages.

The Defendant appealed to the High Court Judge.

The decision

The question of whether to grant a negative declaration or not was a matter of discretion for the Court. The question was simply whether the ends of justice informed by the principles of the Civil Procedure Rules were served by permitting the action for a negative declaration to proceed. It was a material factor for the Court to consider who the quality of evidence was likely to be effected with the passage of time. In this case there was a possible prejudice if, for example, witnesses were lost or the quality of their recollection deteriorated with time. Justice required that the issue of liability be determined sooner rather than later. There was no material before the Judge to convince him that further investigation of the accident by either side was likely to improve the quality of the evidence. An issue as to funding had also been raised by the Appellant. Whether legal assistance, whether by CFA or Legal Aid, was forthcoming would depend on an assessment of the likely merits of the case. If the Appellant’s case had merit then funding, one way or another, would, on balance, likely to be forthcoming. If the merits were not there then there might be no funding for further representation. It was not right that the Respondent should be prevented from bringing to Trial an issue that was otherwise ready for proper resolution, because the Appellant’s potential claim was not strong enough to attract suitable funding for lawyers. The matter should not be allowed to fester forever in the hope simply that something would turn up to the Appellant’s advantage in the end. In this case moreover, it was clear that by 2006 the Appellant had CFA arrangements available to bring a claim for damages. Justice required the earliest possible Trial of the liability issue and the delay did not serve that end at all.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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