Sherry v Murphy & Ors (Approved) [2023] IECA 57 (13 March 2023)

Sherry v Murphy & Ors (Approved) [2023] IECA 57 (13 March 2023)

The refusal by the High Court to fix a date for the hearing of the first defendant's motion created a substantial risk of significant procedural unfairness and exposed the first defendant to significant additional costs, with no effective remedial action available later. The first defendant was entitled to have his motion heard before being required to deliver a defence or proceed to trial.

Citation
[2023] IECA 57
Parties
Plaintiff: Alan Sherry; First Defendant: John Murphy; Second Defendant: Fitzpatrick Construction Limited; Third Defendant: Darragh Keogh trading as D Keogh Roofing; Fourth Defendant: Oisin Hayes; Fifth Defendant: Lauren Murphy
Jurisdiction
Ireland
Judgment Date
13 March 2023
Procedural Posture
Civil Appeal / Appeal From High Court Order Refusing to Fix a Hearing Date for a Motion to Dismiss or Seek Particulars
Outcome
Appeal allowed, cross-appeal dismissed, motion remitted to High Court for hearing.
Legal Topics
Pleadings, Case Management, Personal Injuries Summons, Striking Out Proceedings, Procedural Fairness
Civil Procedure Personal Injury Pleadings Case Management Personal Injuries Summons Striking Out Proceedings Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Alan Sherry

Plaintiff

John Murphy

First Defendant

Fitzpatrick Construction Limited

Second Defendant

Darragh Keogh trading as D Keogh Roofing

Third Defendant

Oisin Hayes

Fourth Defendant

Lauren Murphy

Fifth Defendant

Procedural Posture

Civil Appeal / Appeal From High Court Order Refusing to Fix a Hearing Date for a Motion to Dismiss or Seek Particulars

Legal Issues

  1. 1 Whether the High Court erred in refusing to fix a date for hearing the first defendant's motion challenging the adequacy of the personal injuries summons and seeking to have the action dismissed against him
  2. 2 Whether the refusal created procedural unfairness and prejudiced the first defendant

Ratio Decidendi

The refusal by the High Court to fix a date for the hearing of the first defendant's motion created a substantial risk of significant procedural unfairness and exposed the first defendant to significant additional costs, with no effective remedial action available later. The first defendant was entitled to have his motion heard before being required to deliver a defence or proceed to trial.

Court Disposition

Appeal allowed, cross-appeal dismissed, motion remitted to High Court for hearing.

Orders

  • The appeal is allowed.
  • The cross-appeal is dismissed.