Murphy v Croft Nursing Home Ltd & Ors [2020] IEHC 65 (18 February 2020)

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THE HIGH COURT

[2020] IEHC 65

[2018 No. 3950 P]

BETWEEN

MARY MURPHY

PLAINTIFF

– AND –

CROFT NURSING HOME LIMITED

– AND –

SILVER STREAM HEALTH CARE MANAGEMENT LIMITED

– AND –

SILVER STREAM HEALTH CARE MANAGEMENT LIMITED TRADING AS SILVER STREAM

HEALTHCARE GROUP

– AND –

ST JAMES’S HOSPITAL

– AND –

LORCAN BIRTHISTLE

DEFENDANTS

JUDGMENT of Mr. Justice Max Barrett delivered on 18th February 2020.

1. This is an application by the defendants to consolidate various proceedings. The

application is made pursuant to O.49, r.6 of the Rules of the Superior Courts (“RSC”)

which provides:

“Causes or matters pending in the High Court may be consolidated by order of the

Court on the application of any party and whether or not all the parties consent to

the order.”

2. The plaintiffs are brother and sister. Their mother unfortunately died on 9 May 2016

whilst under the care of the defendants. The grounding affidavit, sworn by the

defendants’ solicitor, outlines the background facts to the within application in the

following terms:

“3. All four sets of the within proceedings arise from the death of Kathleen Lee who is

the mother of both Plaintiffs. It is alleged that the death arose as a result of the

negligence of the circumstances where on the 29th April 2016 Kathleen Lee was

being transferred to her bed by staff of the Defendants when she fell and allegedly

struck her head. As a consequence of the death of their mother both Plaintiffs have

issued proceedings seeking damages for psychiatric injury and a further fatal

injuries claim has been issued under…the Civil Liability Act 1961….

[Court Note: By way of amplification on the foregoing, Ms. Murphy has issued two

sets of proceedings against different defendants seeking damages for psychiatric

injury. Mr. Lee (the brother of Ms. Murphy) has likewise issued two sets of

proceedings and, in one set of those two sets of proceedings, incorporates the

statutory claim. The plaintiffs have offered to consolidate Ms. Murphy’s two sets of

proceedings with each other and, separately, Mr. Lee’s two sets of proceedings with

each other; however, the defendants want all four sets of proceedings consolidated

together.]

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4. I say believe and am advised that it is appropriate that these cases are

consolidated where in terms of the liability aspect the issues to be determined are

identical in respect of all four cases. This much is abundantly clear where all four PI

summonses are almost exact replicas of each other with identical descriptions of

the defendant parties and identical pleas advanced at paragraphs 8-13 of each

summons setting out the circumstances giving rise to the claim which are repeated

verbatim. The Plaintiffs have, again, set out identical particulars of negligence from

(a) to (p) in the PI summonses and have, similarly, provided (all dated the 17th

April 2019) 13 further identical particulars of negligence in each of the four cases all

numbered 1 to 13.

5. By reason of that averred at paragraph 4 above, I say it seems quite clear that in

terms of liability surrounding the circumstances giving rise to the death of Kathleen

Lee identical evidence will be provided in all four cases and identical experts relied

upon. Whilst nominally there are separate Plaintiffs in real terms neither was

present at [the] time the deceased fell so they will rely on the same evidence to

advance their claim which emanates from an insult to their late mother rather than

to either of the Plaintiffs themselves directly.

6. Insofar as the injuries are concerned both Plaintiffs have retained Dr Anne Leader

and both Plaintiffs have been examined by Dr John O’Connor on behalf of the

Defendant. It would appear therefore that consolidation would also save time and

costs and there would be little risk of confusion where the same experts would be

giving psychiatric evidence in respect of both Plaintiffs.

7. In practical terms where the same solicitors and counsel act on both sides in

respect of all four sets of proceedings again there is little risk of confusion and to

maintain four sets of proceedings I say would result in unnecessary duplication of

time and costs.

8. I say there is no risk whatsoever of any confusion arising as a result of the

consolidation of the proceedings.

9. If the proceedings are not consolidated there is a risk of unnecessary duplication

and most importantly and prejudicially from the Defendants’ perspective the costs

of defending the proceedings will be quadrupled. Should the Defendant[s]

successfully defend the claims as they are currently constituted then each Plaintiff

risks being liable for two sets of legal costs each notwithstanding that it could only

achieve the same level of damages regardless of the consolidation.”

[Court Note: By the time the consolidation application was heard the position costs-

wise had changed to the extent that the form of consolidation detailed above was

offered by the respective plaintiffs; however, the defendants (correctly) maintained

that there was still the potential for an as yet avoidable increase of the costs

presenting.]

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3. By way of replying affidavit, the solicitor for Ms. Murphy explains how the various

proceedings came about, mentions the amenability to the consolidation of the respective

proceedings commenced by each sibling, but that there is objection to consolidation of all

four sets of proceedings, averring, inter alia, as follows:

“4 [B]oth Plaintiffs strongly wish to maintain their individual actions…[W]hile the death

of the Deceased was the triggering event for both the combined fatal injuries and

personal injuries action of John Lee and the personal injuries action of Mary

Murphy, the injuries and losses sustained were individual to both Plaintiffs, and the

nature and scope of their emotional suffering and nervous shock were different….

5 [B]oth Plaintiffs are…entitled to proceed with their individual causes of

action….[A]ny potential saving of costs and any saving of [court] time…can be

readily and equally achieved, by the listing of and/or running of both Plaintiff’s

actions together.”

4. It may be useful to make a number of observations at this juncture:

(i) as to listing/hearing together, that is a different form of order to a consolidation

order, and a key issue that presents is that when two cases are listed/heard

together, two sets of High Court costs result, whereas the effect of an order of

consolidation would, in the context just described, halve the legal costs presenting

both in the defence of the proceedings (and the related exposure for the plaintiffs

should they fail to succeed in their actions);

(ii) the court ultimately retains a discretion as to how to order costs at the end of the

substantive proceedings (with the result that in applications of this type the

argument is often raised that ‘Oh, this can be dealt with by the trial judge’);

however, if the court intervenes at this point in time, provided it is satisfied that the

Duffy test, considered hereafter, is satisfied, that may have an effect in terms of

the impetus and resolution of the proceedings (because all parties will have some

certainty as to the likely costs presenting);

(iii) as neither of the plaintiffs were present at the time of the events complained of, the

evidence of the event and the expert report will be identical;

(iv) the only true difference that presents will be in the medical evidence; however, the

same psychologist has been instructed for both plaintiffs and Dr O’Connor has been

retained by the defendants, so it seems to the court that there is a very low (if any)

risk of confusion presenting;

(v) a custom has arisen in practice whereby proceedings are issued separately in a

fatal claim matter and a personal injuries claim is also brought; however, that is

but a custom, and here the fatal injuries claim is really a special damages-type

claim that does not create any confusion (there is an amount for solatium and an

amount for expenses), with the result that by refusing consolidation the court

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would in effect be acceding to a separate set of High Court proceedings (and

related costs) for what is essentially a related special damages-type claim.

(vi) the defendants are entitled to seek the consolidation order now being sought under

the Rules of the Superior Courts, rather than having to wait for two sets of costs to

present.

(vii) as to the point that the plaintiffs want to sue separately and ought to be allowed to

proceed as they, in their discretion, want, that:

(a) forms no part of the test in Duffy (considered below),

(b) would allow the obstructive free licence to be obstructive (this is by way of

general point: the court makes no suggestion, nor should its words be

construed to suggest, that Ms. Murphy and/or her brother have at any time

sought to be obstructive), and

(c) would seem to fly in the face of O.49, r.6, RSC which states that a

consolidation order may be made “whether or not all the parties consent to

that order”.

5. The leading case on consolidation orders remains the judgment of McCarthy J., for the

Supreme Court in Duffy v. News Group Newspapers Ltd. [1992] 2 IR 369, McCarthy J.

observing as follows, at p. 376:

“On behalf of both parties, counsel are agreed on the legal principles to be applied,

citing a number of authorities….The legal principles are:

(1) Is there a common question of law or fact of sufficient importance?

(2) Is there a substantial saving of expense or inconvenience?

(3) Is there a likelihood of confusion or miscarriage of justice?”,

adding as to the common question point:

“This derives from a much quoted observation of Scrutton L.J. in Horwood v.

Statesman Publishing Company (1929) 45 T.L.R. 237:

‘Broadly speaking, where claims by or against different parties involve or may

involve a common question of law or fact bearing sufficient importance in

proportion to the rest of the action to render it desirable that the whole of the

matters should be disposed of at the same time the court will allow the

joinder of plaintiffs or defendants, subject to its discretion as to how the

action should be tried’,

and noting as follows, at p. 379:

“Whilst the wording of the relevant rule is…very wide, that does not mean that it is

to be applied widely or that a heavy burden does not lie upon those who seek to

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join or consolidate actions. It is a matter of discretion but this Court is free to

exercise its own discretion and in an application of this kind is in the same position

as the High Court in doing so. I would not order the consolidation of the actions nor

a joint trial of them. It does seem appropriate, however, to direct that the actions

should be tried in succession and that the trials should be presided over by the

same judge.”

6. In Duffy, as here, the application was brought pursuant to O.49. r.6, RSC.

7. Turning then to the three questions raised in Duffy and applying them to the case at

hand:

(1) Is there a common question of law or fact of sufficient importance?

The commonality presenting between the proceedings is clearly very broad.

(2) Is there a substantial saving of expense or inconvenience?

The saving of a full set of High Court costs is a substantial saving of costs, and is

not cured by merely linking the proceedings, it can only be cured at this point by

the consolidation sought by the defendants (which may well have an effect in terms

of the resolution of the actions).

(3) Is there a likelihood of confusion or miscarriage of justice?

There is a low (if any) risk of confusion presenting (see para. 4 above). The court

does not see any risk of a miscarriage of justice to present.

8. For the reasons stated above, the court will grant the order of consolidation sought by the

defendants.

Result: Judgment in favour of the defendants.

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