THE SUPREME COURT EDWARD HINEY AND BARRY FLANAGAN, GERARD J. DONOVAN, BERNARD HUDSON, BRUCE DOOLAN, DESMOND REID AND BOC GASES IRELAND LIMITED

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1 THE SUPREME COURT [Appeal No: 286/07] Denham J. O'Donnell J. McKechnie J. BETWEEN/ EDWARD HINEY PLAINTIFF/RESPONDENT AND BARRY FLANAGAN, GERARD J. DONOVAN, BERNARD HUDSON, BRUCE DOOLAN, DESMOND REID AND BOC GASES IRELAND LIMITED Judgment delivered on the 27th day of October, 2010 by Denham J. DEFENDANTS/APPELLANTS 1. On the 22nd October, 2001, Edward Hiney, the plaintiff/respondent, referred to in this appeal as "the plaintiff", had a plenary summons issued on his behalf. The defendants in the plenary summons were named as Barry Flanagan, Gerard H. Donovan, Bernard Hudson, Bruce Doolan, Desmond Reid and BOC Gases Ireland Limited. Barry Flanagan has died since the issuing of the proceedings. The defendants/appellants are referred to as "the appellants". The appellants were sued by the plaintiff as trustees appointed to govern the administration of the Superannuation Fund of BOC Gases Ireland Limited for certain employees of the company. 2. The appellants brought a motion to dismiss the plaintiff's case seeking an order dismissing the plaintiff's claim against the appellants pursuant to the inherent jurisdiction of the Court, and/or pursuant to the Rules of Court, by reason of inordinate and inexcusable delay by the plaintiff in the commencement and prosecution of the proceedings, which delay, it was submitted, has prejudiced the appellants such that the balance of justice requires that the claim be dismissed. Further, or in the alternative, the appellants sought an order dismissing the plaintiff's claim on the grounds that it would be contrary to natural and constitutional justice and/or the rights of the appellants as guaranteed by Article 6 of the European Convention on Human Rights. 3. The motion was refused by the High Court. The learned High Court Judge delivered an ex tempore judgment on the 6th July, A note of the judgment signed by counsel for the appellants and by counsel for the plaintiff has been approved by Lavan J.. The learned trial judge stated that he was not prepared to dismiss the proceedings. However, he indicated that he would direct an early trial.

2 4. On the 1st August, 2007, the solicitors acting on behalf of the appellants filed a notice of appeal, setting out ten specific grounds of appeal. 5. This appeal was listed for hearing and was heard on the 7th October, Written and oral submissions were before the Court on behalf of the plaintiff and the appellants. 7. In the written submissions on behalf of the appellants a chronology of events was set out. Counsel for the plaintiff agreed with the chronology, subject to the addition of the letters written regarding paragraph 9.2 of the Rules of the BOC Gases Ireland Limited Pensions Scheme 1992, hereinafter referred to as "the scheme", from the plaintiff, and the fact that the orders for discovery were made against both parties. 8. The chronology of events is:- Date Event 2 nd October, 1995 Plaintiff went on sick leave from work 1 st July, 1996 Plaintiff was notified of Dr. Deasy s views that he was not a candidate for an ill health pension and requested to return to work, and was informed of the possibility of termination of employment. 17 th October, 1996 Plaintiff met with Barry Flanagan (now deceased) and Paul Monks (now retired). Plaintiff was informed of appellants' view that there was no reason for his absence and of the requirement to return to work by October 29 th, st October, 1996 Letter from Barry Flanagan reiterating the requirement to return to work by October 29 th. 29 th October, 1996 Plaintiff failed to return to work and was written to by Mr. Monks, terminating his employment. November, 1997 Plaintiff pickets BOC and the dispute is referred to the Labour Court. February, 1998 Labour Court recommendation that BOC examine the question of the Plaintiff s entitlement to the benefit of the ill health pension scheme.

3 15 th May, 1998 Company sets out its position, having conducted a review. Plaintiff not an employee and therefore not qualified for the ill health pension. 8 th February, 1999 Correspondence between SIPTU, the company and the Labour Court as to whether or not the company had implemented the Labour Court recommendation. December, 1999 Decision of independent mediator to the effect that the Labour Court recommendation had been implemented in full. May, 2000 Proposed arbitration under the auspices of the Labour Court : not proceeded with. 29 th October, 2001 Plenary summons issued. 27 th February, 2002 Statement of claim delivered. 30 th October, 2002 Notice for Particulars raised. 16 th January, 2003 Replies to Particulars. 29 th January, 2003 Defence. 18 th July, 2003 Particulars arising out of Defence raised. 25th July, 2003 First discovery order against the plaintiff allowing eight weeks for the making of discovery. 30 th July, 2003 Replies to Particulars of Defence. January, 2004 Mr. Flanagan dies. 2 nd July, 2004 Order extending time for the making of discovery (costs to the appellants). 28 th January, 2005 Plaintiff s affidavit of discovery on foot of Master s order of 25 th July, rd February, 2005 Order made on foot of plaintiff s second motion to strike out for failure to make discovery, awarding costs to the appellants.

4 July, 2005 Dr. Deasy dies. 16 th August, 2005 Plaintiff s solicitor s letter responding to queries raised in relation to discovery. 10 th July, 2007 Notice of Trial served 9. The appellants' claim that there were five periods of delay, being:- (i) Delay between the date of the communication of the decision regarding the entitlement to the ill health pension scheme and the institution of proceedings: 5 years and 4 months. (ii) Delay between the date of the termination of employment and date of institution of these proceedings: 5 years. (iii) Delay between the event giving rise to these proceedings i.e. refusal of the pension, and the date of the hearing of this appeal, now 14 years. (iv) Delay in making discovery, from 25th July, 2003 to 28th January, 2005: being 1 year and 9 months. (v) Delay from plaintiff s last step in the proceedings until notice of trial: 2 years and 6 months. Background 10. A plenary summons was issued on behalf of the plaintiff on the 22nd October, In the plenary summons the plaintiff claimed, inter alia:- (a) A declaration that the plaintiff is eligible for acceptance into the Superannuation Fund for certain employees of BOC Gases Ireland Limited pursuant to the provisions of a deed of trust dated the 14th September, 1970, as amended and extended. (b) A declaration that the appellants, their servants or agents, have failed to comply with the provisions of a deed dated the 14th day of July, 1995, governing the administration of the said Superannuation Fund and that the plaintiff was wrongly excluded from its benefits. (c) An order requiring the [appellants] to accept the plaintiff for the benefits of the said scheme. 11. In the statement of claim reference was made to paragraph 9.2 of the rules of the scheme, which provides that if a member of the scheme is certified by a medical practitioner instructed by the company to be incapable by reason of accident or illness of

5 performing the duties for which he is employed and shall in consequence retire from service before normal pension date he will be entitled to a pension calculated in accordance with Rule 7 by reference to his final pensionable salary and the pensionable service if he had continued in service until normal pension date provided always:- "in the event of disagreement between the company and the member relating to the decision of such medical practitioner and based on medical grounds the question of incapacity shall be referred to another medical practitioner agreed between the company and the member or failing agreement nominated by the President of the time being of the Irish Medical Organisation and the decision of that other medical practitioner shall be final." 12. In oral submissions, counsel for the plaintiff submitted that he had invoked his right of appeal to another medical practitioner and that he was entitled to a second medical opinion. He referred to two letters, which were not before the Court, which it was submitted are at the core of the claim. 13. The appellants deny that he requested this reference to a second medical practitioner. Paragraph 21 of the defence states:- "It is denied that the plaintiff requested the [appellants] or any of them to refer the issue of the plaintiff's incapacity to work to another medical practitioner on November 12, 1996 or November 17, 1996, whether as alleged or at all. If the plaintiff made the said requests (which is denied), neither the [appellants] nor any of them were required or entitled to comply with such a request as the plaintiff, on the said dates, was no longer an employee of BOC's, and therefore no longer a member of the Scheme eligible to benefit from any of the entitlements envisaged by the Scheme." 14. Thus an issue will be whether the plaintiff validly invoked a right to seek another medical practitioner's opinion. 15. An alternative pleading and submission on behalf of the plaintiff is that Mr. Monks made a representation to the plaintiff, upon which he relied. This submission is used as a ground in the substantive proceedings and also to explain delay. Law 16. There was no disagreement between counsel as to the law to be applied. In the written submissions the Court was referred to many cases, including the principles set down in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 at pp ; Keogh v. Wyeth Laboratories Inc. & John Wyeth & Brother Ltd. [2005] 2 ILRM 508; Gilroy v. Flynn [2005] 1 ILRM 290; Toal v. Duignan & Ors (No.1) [1991] ILRM 135; Toal v. Duignan & Ors (No.2) [1991] ILRM 140. The law was addressed recently in McBrearty (a.p.u.m. not so found) v. North Western Health Board & Ors [2010] IESC 27, where Geoghegan J., with whom the other members of the Court agreed, analysed the law.

6 The principles to be applied are as follows: Was there inordinate and inexcusable delay? The onus of establishing these matters rests upon the appellants. If the delay is found to be both inordinate and inexcusable then the court is required to exercise a discretion to find the balance of justice, to determine whether it would be unjust to require the appellants to defend themselves. 17. No submissions were made relating to the European Convention on Human Rights. The case was advanced on the established common law. 18. As to delay, five periods of delay were advanced. I shall refer to them each specifically in the order in which they were submitted. As to the time referred to in paragraphs (i) and (ii), I am satisfied that the time taken prior to the commencement of the proceedings, in trying to resolve the matter through the trade union process and the Labour Court, was entirely appropriate. I would find no fault with such an approach. Consequently, I would not find this delay inordinate. Even if it were inordinate it is certainly excusable. Thus I would not uphold the first two grounds as being inordinate and inexcusable delay in the circumstances. (iii) The delay between the event giving rise to these proceedings and the date of this appeal is now fourteen years. Such a delay is most unfortunate and primarily would be an inordinate delay. It is then a matter of considering the detail to see if it is inexcusable. (iv) The fourth period of delay is that relating to the making of discovery, from the 25th July, 2003 to the 28th January, 2005, being one year and nine months. While there was a delay, the Master did not strike out the proceedings, and all the orders were made by consent. Also, all the orders were made against both parties both of which affidavits of discovery were filed in 2005, even though the affidavit deposed by Anthony Rice on behalf of the appellants was deposed on the 21st April, This does appear to be an inordinate delay but there was fault on both sides which is not fully explained and so not clearly excused. (v) I would consider the most significant delay to be that from the plaintiff's last step in the proceedings until the notice of trial, which was a delay of over two years. No reasonable excuse was given. I would consider this delay inordinate and inexcusable. 19. Thus it is necessary to consider the balance of justice in the circumstances of the case. 20. The appellants submit that they have been prejudiced. This plea is primarily based on the deaths of two purported witnesses. Dr. Deasy, who gave medical advice to BOC in relation to the plaintiff's medical condition, died in July, Mr. Flanagan, the then managing director of BOC, who acted on the basis of the advice given to him by Dr. Deasy, and who met the plaintiff in October, 1996, and who terminated the plaintiff's employment, died in January, On behalf of the appellants it was submitted that they have been severely prejudiced by the failure of the plaintiff to bring the proceedings within a reasonable time, as the proceedings relate to events in 1996.

7 21. I am not satisfied that the appellants suffer any significant specific prejudice arising out of these circumstances. The kernel issue in the substantive case is not the medical opinion of Dr. Deasy, but appears to be the alleged failure to have the medical evidence reviewed by a second doctor. Thus the medical opinion of Dr. Deasy is not at the core of the issue. Nor does the death of Mr. Flanagan give rise to such prejudice as would be unjust to the appellants to proceed with their defence. As to the issue of representation alleged to have been made to the plaintiff by Mr. Monks, Mr. Monks, although retired, is available. In all the circumstances, in view of the issues raised in the plaintiff's claim, any prejudice to the appellants is not such as to outweigh the right of the plaintiff to have his claim heard. 22. The case appears to turn on the issue of the plaintiff's claim that he was entitled to a review of the medical evidence by another medical practitioner. Two letters are said to be critical to this issue. They have not been before this Court. However, the situation is said to be that the case will turn on this issue, the two letters, and on other relevant evidence. There is thus a net issue, the plaintiff claims that he was entitled to a review by a second medical practitioner and has lost that opportunity. In considering the balance of justice, this legal issue, in all the circumstances of the case, is not such that it would be unjust to require the appellants to defend themselves. 23. In light of the decision I have reached I do not consider it appropriate to analyse further the proposed proceedings. 24. In all the circumstances of this case, on the issues raised, I am satisfied that the balance of justice lies in permitting the plaintiff proceed with his case. Conclusion 25. For the reasons given I would dismiss the appeal. Clearly this case should be given an early trial, as was directed by the learned High Court judge in October, Consequently, I would request counsel to mention the case in the relevant High Court list as soon as possible so that a date may be fixed for the trial.