Case against Motor Insurers Board can go ahead


O’Flynn -v- Buckley Ors

Supreme Court

Judgment was delivered by Mr Justice Kearns on January 22nd, 2009, Mrs Justice Denham and Mr Justice Hardiman concurring


The Supreme Court upheld a High Court order dismissing an application from the Motor Insurers Board (MIB) seeking to have proceedings against it separated from proceedings against another plaintiff, both of which arose out of the same accident.


The proceedings arose out of a fatal accident on August 7th, 1999, in which a 19-year-old man, Kieran OFlynn, died on the road close to his home in Mallow, Co Cork. He was hit by two cars on the night of his death, the first driven by Pádraig Buckley and the second by David Walsh. The owner of the car driven by Pádraig Buckley was Aidan Horan, and Mr Buckley was not covered by insurance to drive it. In correspondence relating to the proceedings the possibility was raised of Mr O’Flynn also being hit by a third, unidentified, vehicle. The MIB was joined to the proceedings under Clause 2 of the agreement between it and the Minister for the Environment, providing for its liability to compensate uninsured drivers in various circumstances, including where a driver was identified but uninsured, as was the case with Mr Buckley. The second driver was covered by his own insurance.

The plaintiffs in the action were the parents and sister of Kieran O’Flynn and the company effectively owned by the family, which had employed 19 people. It had been hoped that the deceased would make a meaningful contribution to the growth and development of the company, but after his death his father lost interest in the business, and it closed with the total loss of employment for those who worked there. The plaintiffs claimed damages for the fatal accident and for nervous shock.

The defence filed by Mr Buckley included a claim that Mr O’Flynn was dead when he hit him, and that his death was not therefore caused by him. It raised the possibility that he died for some reason unconnected with any vehicle and was later struck by a number of vehicles. This possibility only arose because the defence put the plaintiffs on full proof of everything alleged in their statement of claim, Mr Justice Kearns said. Another possibility canvassed was that Mr O’Flynn was first struck by a vehicle other than that driven by the first defendant, that is, an unidentified and untraced driver.

In filing its defence, the MIB sought to have the proceedings dismissed on the basis that it was not in accord with Clause 2 of the MIB Agreement. Clause 2 (2) of this agreement provides that MIB may be joined as co-defendant where the offending motorist is identified but uninsured. Clause 2 (3) allows the MIB to be joined as defendant where the offending motorist is unidentified or untraced. MIB argued that both scenarios could not be litigated in the same proceedings.

Counsel for the MIB argued that there were policy reasons why the MIB agreement should be construed strictly, and that mixing it up with a claim by an insured driver and possibly an untraced driver created a danger that its responsibilities would become blurred. He argued that the plaintiffs could issue fresh proceedings in correct form.

The plaintiffs argued that the MIB was stopped from making this objection because of delay. They also argued that the issue it raised could be resolved by a disjoinder of issues in the High Court.

Mr Justice Kearns outlined the sequence of events in order to clarify the issue of delay. The MIB was informed of the accident on December 12th, 2000, with reference to the “possible involvement” of an untraced motorist, though neither of the first two defendants could verify that another motorist was involved.

A plenary summons was issued and served on February 28th, 2001. Various correspondence was exchanged, and in August 2002 the MIB called on the plaintiffs to join the owner of the car driven by Mr Buckley as a defendant in the proceedings. In August the following year its solicitors sought more time for delivery of a defence.

In March the MIB’s solicitors entered a defence, and then ceased to act for it, and a new set of solicitors came on record. In December 2004 they raised for the first time the “preliminary objection” that the proceedings were improperly constituted.

The plaintiffs pointed out that it was only now, four years after the MIB was first informed of the action, that it raised this issue. They also pointed out that the MIB, significantly, was not prepared to give an undertaking to the court that it would not plead the Statute of Limitations if the present proceedings were dropped and reconstituted.

They also pointed out that the MIB had been correctly joined to the proceedings because of the involvement of an identified but uninsured driver.


Mr Justice Kearns said it was possible to decide the case without referring to delay. The defendants had relied on two unreported judgments, Devereux -v- Minister for Finance and MIB (OSullivan J, February 10th, 1998) and Kavanagh -v- Reilly and the MIB (Morris J, Octorber 14th, 1996). However, neither of these cases spoke to the unusual facts of this case, where there was a combination of insured and uninsured divers and the possible involvement of an untraced driver. The MIB was being sued wearing two hats.

While counsel for the MIB was correct to state that the MIB was entitled to require that litigants respect the strict conditions laid down in the MIB Agreement, even taking his arguments at their highest point, they did not overcome the very simple rejoinder from the plaintiffs.

This was that the High Court was entitled to direct the disjoinder of the issues complained of, under Order 18, Rule 1 of the Rules of the Superior Courts.

The interests of justice and all the legitimate concerns of the MIB would be met by such an order prior to trial. It would be a superfluous requirement, verging on the absurd, to require the plaintiffs to institute a second set of proceedings when the MIB had been validly joined in a particular capacity, Mr Justice Kearns said.

He said he also accepted the arguments put forward on behalf of the plaintiffs that the delay in seeking the relief was such as to disentitle MIB from receiving it.

This court has made clear in a number of recent cases that delays in procedural matters which may have been tolerable in previous times may no longer by tolerated, he said.

Accordingly he also dismissed the appeal on grounds of delay.

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Michael Gleeson SC and Mark Harty BL, instructed by Raymond Glynn solicitors, Mallow, Co Cork, for the plaintiffs; Edward Comyn SC and Michael Block BL, instructed by Barry Galvin solicitors, Cork, for the defendant