The route to the establishment of new rights and the clarification of existing entitlements in law can often be circuitous and fraught with difficulty for Plaintiffs.
The 2014 case of Creighton -v- Ireland & Ors. established for the first time in Ireland the liability of the State for injuries sustained by a prisoner as a result of an unprovoked assault by another prisoner. However before the successful conclusion of the case the Plaintiff had to endure two High Court hearings and a Supreme Court appeal.
In Moorehouse -v- The Governor of Wheatfield Prison & Ors the Plaintiff sustained horrendous amputation injuries to four fingers of his left hand when working on a guillotine steel cutter whilst an inmate in Wheatfield Prison. The personal injury summons pleaded, inter alia, that the Defendant’s had failed to provide a safe place and system of work and supervision, allowed him to operate the machine when it was unsafe and did not have a guard on the machine.
The defence filed by the State Claims Agency consisted of a blanket denial and alleged negligence and contributory negligence on behalf of the Plaintiff.
Burns Nowlan Solicitors, who had also represented the Plaintiff in the Creighton case, came on record for the Plaintiff in November 2013. Upon taking instructions it became clear that additional particulars of the Defendant’s negligence needed to be pleaded. There were three categories of amendments sought:-
- Failure on the part of the Defendant’s to have a prison officer present in a room adjacent to the workshop, where there was present a “cut off” switch
- Failure on the part of the Defendants to ensure the Plaintiff was capable of reading warning signs in the workshop
- Most importantly and significantly the Plaintiff sought to add that the Defendants had allowed the Plaintiff to operate the machine when they knew or ought to have known that he was under the influence of a controlled drug, methadone (“the methadone amendment”), which had been administered to the Plaintiff earlier in the morning on the day of the accident.
The Defendants refused to consent to the proposed amendments and the matter came before Her Honour Judge Mary Irvine by way of Notice of Motion. At issue between the parties were the provision of the Civil Liabilities Act, 2004 and the Rules of the Superior Courts (Personal Injuries) 2005.
Ms. Jusctice Irvine in the High Court permitted the first two categories of amendments but refused “the methadone amendment.” She reasoned that in order to determine the real issues at controversy between the parties four rhetorical questions needed to be asked:-
- Was the machine defective?
- Was the plaintiff trained?
- Was there adequate supervision of the machine?
- Was there sufficient warnings regarding the dangers of the machine?
She refused “the methadone amendment” as she was of the opinion that it fell outside the scope of these four questions and therefore, in her view, did not form part of the real issues in controversy between the parties. She agreed with the Defendant’s argument that the procedure for furnishing particulars was now to be seen through the prism of the 2004 Act and the 2005 Rules and that the “liberal” approach as previously taken by the courts when it came to permitting amendments was no longer appropriate. The Defendant had argued that the methadone amendments contained new facts and in light of the new regime established by the 2004 Act should be disallowed. Mr. Patrick Keane S.C. on behalf of the Plaintiff argued that the methadone amendment flowed from the pleadings already in being and merely served to clarify the original claim. The High Court judge however agreed with the Defendants assertion that the methadone claim was an entirely different case and for that reason disallowed the amendment.
The significance of the High Court decision was that, if unchallenged, it would substantially curtail the rights of a Plaintiff to amend proceedings at a later stage in the pleadings. The Plaintiff’s Solicitors filed an Appeal to the Supreme Court which came on for hearing in October 2014.
The Supreme Court rejected the argument made by Counsel for the Defendant and ultimately restored a Court’s right to allow amendments to personal injury summons provided that it was necessary for the purpose of determining the real question at controversy between the parties.
Mr. Justice MacMenamin took the opportunity presented to the Supreme Court to clarify to what extent the 2004 Act and the 2005 Rules limit the scope of a Court’s discretion to amend pleadings. He was very clear in his opinion that the Courts do have the discretion to amend pleadings. He stated “Where an amendment may be made without prejudice to the other party, to enable the real issues to be tried, it should be allowed”. In justifying this conclusion, Mr. Justice MacMenamin was very thorough in his analysis of the 2004 Act and the 2005 Rules and how they should be applied. He acknowledged that the Act coupled with the Rules introduced a new system for personal injury claims. He did not believe that they ought to be interpreted in such a way as to limit the discretion of courts to permit amendments to pleadings once issued. In reaching this conclusion, he noted the intent of the legislature when introducing this new system was to “avoid generalised, vague, unspecific and formulaic pleading, and the consequent injustice to parties caused by delayed notifications of the existence and nature of a potential claim.”
He noted that it had been a long established principle of law that the role of the Courts is to decide issues at controversy between parties. The Rules of the Superior Courts confer powers on the Judiciary so that they may fulfil this obligation. One of these such powers is set out in Order 28(1) RSC 1986:-
The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
MacMenamin J stated that since 1986 this Order had been heavily relied upon by parties and indeed the Judiciary has exercised its discretion liberally. Despite this however, in opposing the proposed amendments to the personal injury summons in the above named action the State had argued that this discretion was no longer absolute in light of the provisions of the Civil Liabilities Act, 2004 and the Rules of the Superior Courts (Personal Injuries) 2005. They claimed that this new regime did not merely change the form of procedure for bringing proceedings but also restricted the right to amend pleadings once they had been initiated, essentially overthrowing the provisions of the Rules of the Superior Courts 1986, as amended, and the deciding case law, both of which protects the rights of parties to amend pleadings.
[ In relation to that particular argument during the hearing of the Appeal Ms. Justice Laffoy stated that if the Court accepted the argument made by Counsel for the Defendants it would roll back the rights of a Plaintiff by a hundred years! ]
MacMenamin J also disagreed with the High Court Judge in her assessment of the methadone amendment as an entirely different case. He agreed that certainly it introduced a “new aspect” of the case but that this aspect went to the Plaintiff’s capacity to operate the machine. It was his view that the motion judge should have asked herself a fifth rhetorical question: –
5. Did the plaintiff have the ability or capacity to carry out work of the type in question?
MacMenamin J pointed out that the motion Judge did consider the question of incapacity relevant by allowing the additional particulars regarding the Plaintiff’s alleged inability to read warning signs. The implication being that even if warning signs were present, the Plaintiff was incapable of reading them. This according to MacMenamin J “….plainly implied an incapacity or unfitness to operate the machine”. He went on to ask: –“What then is the distinction …between the amendment allowed, regarding the inability to read, and the methadone amendment which was disallowed?” He said the Respondents seem “to make a differentiation without a distinction” and that there was no logical distinction as both amendments deal with incapacity or unfitness to do the work either through illiteracy or methadone consumption. He stated that for this reason alone the appeal should be allowed.
He also stated that the role of the Courts is to ensure that the real question in controversy between the parties is determined. As Geoghegan J said in Croke v Waterford Crystal Limited and Irish Pensions Trust Limited – the Rules of the Superior Court in so far as they concern amendments are intended to be “liberal” so that the real issues can be determined.
In examining Order 1A(2) of the 2005 Rules he noted that it provides that if “any conflict shall arise” between the 2005 Rules and the 1986 Rules, the latter rules shall prevail. He then examined whether the Act or the new rules contained any provisions which are in conflict with Order 28(1) of the Rules of the Superior Courts which gives the Courts discretion to grant amendments.
He found that “I am unable to find any provision in the 2004 Act which impacts on Order 28(1) which addresses amendments.” He quoted Section 14 which specifically provides for the provision of “further information” without precluding any category of such information such as additional clarification of the circumstances and noted that Order 1A(4) provides:-
“Save where otherwise expressly provided by this Order the provision of these Rules which apply to a plenary summons shall, with appropriate modifications, apply to a personal injury summons”
Order 1A(6) deals with modifications to the personal injury summons. It provides:-
“where a plaintiff alleges that he was unable to, at the time at which a personal injury summons was issued, to include in the summons any of the information required by this Order to be specified in the personal injuries summons, he shall include in the personal injuries summons, a statement of reasons why it is claimed that any such information could not be provided at the time of issue of the summons. The Plaintiff shall, at the time the personal injury summons is served or as soon as may be thereafter (whether by amendment or otherwise) provide such of the information required by this order as was not included in the Personal Injury Summons.”
MacMenamin J found that this Order clearly envisaged possible omissions in PI Summons. He noted that it specifically provided that additional information may be provided – by amendment or otherwise. This Order was not in MacMenamin’s view in conflict with Order 28 Rules of the Superior Court 1986 and therefore did not diminish the Court’s discretion to amend pleadings.
It was noted that in the case Burns Nowlan complied with this order and swore an affidavit explaining the situation and outlining when they received instructions from their client as to his alleged methadone usage. MacMenamin J explained that he set out the provisions of the Act and the Rules in extensive detail in order to highlight the failing in the Respondent argument. He made clear that “neither the act nor the 2005 rules purport to effect an amendment, which conflicts with, modifies, or is in any sense an abrogation of Order 28 of the Rules of the Superior Courts which addresses the question of amendment of pleadings”.
Having firmly established that the courts have discretion to allow the amendment of pleadings MacMenamin J quoted the authority established in Croke v Waterford Crystal Limited and Irish Pensions Trust Limited which delineated the matters which should be considered when deciding whether to permit an amendment :-
- Whether the amendment sought is necessary for determining the real question in controversy
- Whether the amendment can be made without prejudice to the other party
- Whether any possible prejudice can be addressed or regulated by a suitable order as to costs.
When considering these points MacMenamin J pointed out that the Respondents were asked whether they would suffer any actual prejudice if the amendment was permitted. They were unable to show any real prejudice.
In the facts at hand no effort was made to plead a large range of new facts. No new cause of action was pleaded. The amendment sought only to clarify the original claim. The addition was necessary for the purpose of determining part of the questions already in controversy between the parties. The true issue was whether there was an unsafe system of work in place – and to determine this the capacity of the plaintiff is relevant.
The Judgment of McMenamin J in Moorehouse -v- The Governor of Wheatfield Prison & Ors comprehensively deals with the question as to the extent the Civil Liabilities Act, 2004 and the Rules of the Superior Courts (Personal Injuries) 2005 impact on the discretion of the Courts to permit amendments to pleadings as per Order 28(1) of the Rules of the Superior Courts 1986. As a result of this decision there is no doubt going forward that the Courts do maintain their discretion to permit amendments provided they are necessary to permit the true issues at controversy between the parties to be determined.