Dismissal

jonnreeks

Hi,

"In Ireland, a court summons can be dismissed after two years of inactivity, as provided by Order 122, Rule 11 of the Rules of the Superior Courts (RSC), which allows a defendant to apply for dismissal for want of prosecution."

I read the above online recently and was curious to know from what actual date would a defendant involved in a court summons be able to apply for a dismissal. Is the two year period considered from the date that a court summons was issued on the defendant or from the date a defendants legal representitive file their notice of defence on the plaintiff?

Or is it taken from other dates such as the time of the incident, accident or whatever the occurence in question.

Anyone with any legal experience or advice of this would be appreciated.

N

Peregrinus

The time runs from the date of the last step that was taken in the proceedings. So if the last thing that happened was the defendant filing their defence, then the two years runs from the date the defence was filed.

jonnreeks

Thanks again Peregrinus.

jonnreeks

Another questions is in the area of proof.

I am aware of a situation where someone is claiming injuries from an accident but has also confirmed that there are no actual witnesses to the incident. The defendant has put an argument, that the plaintiff has been liable for not taking due care and responsible for their own behaviour.

Any advice or suggestions for the defendant.

Peregrinus

I take it that there are two witnesses to the accident — the plaintiff and the defendant — but no other witnesses.

There may be a straight conflict of evidence here, If so the court will have to decide which witness is more probably reliable. We don't know what, if anything, the defendant might say in support of his assertion that the plaintiff acted carelessly or irresponsibly (He was drunk? He was texting on his phone at the time, and not paying attention to what was going on around him? He did something that the defendant could not reasonably have foreseen he might do and that contributed to the accident or to the injury?). Presumably, whatever it is, the plaintiff will say "no, I wasn't/no, I didn't" butand the court will simply consider which version of events is more likely to be true.

Or, the defendant may not necessarily assert different facts. The evidence about what actually happened and who did what may be substantially the same on both siades, and the argument may be about whether what was done was negligent or not.

Note that a pleading that says, in eeffect, that the plaintiff is wholly or partly responsible because he was negligent is pretty standard. It doesn't necessarily mean that the defendant will rely in that argument at the trial — he may just be keeping open the option of advancing that argument at the trial if, when the evidence is presented, it looks as though there might be any mileage in it. Remember, just as you don't know exactly what the defendant will say, he doesn't know exaclgty what you will say.

jonnreeks

Following on from that, have you any idea of what has been the current trend in court decisions, when it comes to levels of compensation if attempting this type of action to benefit?

jonnreeks

https://www.boards.ie/discussion/comment/123903827#Comment_123903827

Would really like your opinion on this situation,

A plaintiff claims an injury from cutting a boundary hedge and blames the cause on a defendant because of the state of the hedge and also that there were no witnesses to their claim.

The Defendant states that they were in their garden on the day and heard no one cutting the hedge and claims no incident took place.

How can a decisiion be reached?

jonnreeks

I understand that a solicitor is typically paid for pro bono injury claims in one of two ways, compensation from the plaintiff's settlement if the case is successful under a "no win, no fee" agreement, or they may not get paid at all if the case is unsuccessful. 

But if the Plaintiff is going to need medicals, Engineer's reports, barrister hiring costs and all the administration work in the meantime does the Plaintiff incurr any cost as the claim continues to proceed.

It must be an expensive exercise for the Plaintiff to keep this action ongoing in the hope of gaining a judgement?

Peregrinus

Yes, the plaintiff generally has to pay for medical reports, engineers reports, etc. But solicitors don't take on no-foal, no-fee cases unless they are reasonably optimistic that the case will succeed and there will be a judgment of some amount, and they are usually right. So plaintiffs rarely incur these expenses on complete no-hope cases.

jonnreeks

https://www.boards.ie/discussion/comment/123904244#Comment_123904244

And your view on the previous post about the hedge as I do appreciate your opinion and suggestions.