About this case:

• Citation:
  [2022] IEHC 60
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

However, the court held that the defendants had not properly explained the legal effect of signing the waiver and refused to dismiss the proceedings. The court also rejected further submissions that the proceedings were statute-barred and that the proceedings should be dismissed for want of prosecution.

Background

The plaintiff was employed by Ladbrooks Ireland as a customer service manager from April 1998 until August 2015 when her employment was terminated by redundancy. At the time, the plaintiff signed a compromise waiver agreement with her employer. The agreement contained a close which precluded the plaintiff from issuing or pursuing “any proceedings or claim of any nature whatsoever” against Ladbrooks.

In May 2016, the plaintiff issued a personal injuries summons against Ladbrooks and its parent company, claiming damages for injuries to her shoulders. It was claimed that the plaintiff was repeatedly required to engage in repetitive movements and worked in unsuitable conditions.

Subsequently, the defendants issued a motion seeking to strike out the plaintiff’s proceedings on three grounds. First, it was argued that the proceedings were bound to fail because the plaintiff waived any right of action against the defendants. Second, it was argued that the proceedings were statute-barred. Finally, it was argued that the proceedings should be dismissed based on delay in the commencement and conduct of the proceedings.

On the statute of limitations, the defendants argued that the plaintiff was symptomatic by January 2014. The defendants relied on correspondence between the plaintiff’s doctors, which described her symptoms as being worse “after working long hours”. It was argued that this was evidence that the plaintiff complained of workplace injuries more than two years before her initial application to PIAB in April 2016.

The defendants also claimed that the plaintiff delayed in commencing the proceedings and delayed in her conduct of the proceedings. In particular, the defendants relied on a seven-year delay from 2009 (when the plaintiff first experienced shoulder pain) to 2016 (when she issued the proceedings). Further, it was stated that there were three periods of delay of 12 months, 15 months and 12 months after the personal injuries summons issued.

High Court

Delivering judgment in the case, Ms Justice Marguerite Bolger began by considering the waiver agreement. The court noted that the defendants had previously provided an affidavit of discovery which claimed that the defendants never had any documentation relating to pre-agreement negotiations for the waiver. Further, the court considered a clause which stated that the plaintiff had taken independent legal advice prior to signing the waiver.

The court accepted that the plaintiff did not take legal advice prior to signing the agreement and that the agreement had been put to her on a “take it or leave it” basis. It was held that the absence of any pre-negotiation documents supported this view. As such, it appeared that the waiver agreement contained an untrue statement that the plaintiff had taken independent legal advice.

The court held that there was an obligation on employers to explain the legal effects of contracts signed by employees, particularly where the contract involved the loss of statutory rights (Board of Management of Malahide Community School v. Conaty [2019] IEHC 486 considered). The court held that there was an implied obligation of mutual trust and confidence in the employment relationship and that the defendants could not rely on case law which stated that a signatory was bound by what they signed (ACC v. Kelly [2011] IEHC 7; Quinn v. IRBC [2011] IEHC 470).

Turning to the statute of limitations point, the court accepted that the plaintiff had shoulder issues since 2009 and that she had several consultations with her GP and a consultant rheumatologist. However, the plaintiff claimed that she did not realise that her injuries were significant until 2015, when she was advised to have surgery.

The court held that the issue could not be fairly determined without evidence from the plaintiff and her doctors. The court stated that the doctor’s letter relied on by the defendants was not sufficiently clear to dismiss the proceedings. Any finding of fact required further evidence to be adduced, the court said.

Finally, the court considered the issue of delay. The court noted that the pre-action delay was not as long as seven years because the plaintiff was not seeking damages back to 2009 or to any specific time.

The court was also not satisfied that the post-commencement delays were inordinate. Further, even if the court was incorrect, it was held that the delays did not give rise to a substantial risk of an unfair trial. There was no evidence of how the defendants would suffer serous prejudice from the delays, the court said. Although there were apparent difficulties for the defendants to locate their former employees, the court held that the defendants had been aware of the proceedings for years. Accordingly, the defendants failed to take steps to confirm its available evidence or to secure contact details.

Ms Justice Bolger also commented that the defendants had delayed in bringing the application and held that this could factor into the court’s discretion to grant relief (Rainsford v. Limerick Corporation [1995] 2 IRM 561). In this case, there was an 18-month period between the final period of delay and the defendants bringing the motion to dismiss.

The court also held that it was essential to examine whether justice lay in granting or refusing the relief. The court considered Mangan v. Dockeray [2020] IESC 67, where it was held that there was not a serious risk of injustice if the case continued, but there would be enormous prejudice to the plaintiff if the case was dismissed.

Conclusions

The court was not satisfied on the evidence that the claim was bound to fail. The plaintiff was entitled to call evidence to deal with the waiver and statute of limitations points. It was held that these matters should be tried as preliminary issues. The court was also not satisfied that the delays gave rise to a substantial risk of unfair trial or serious prejudice to the defendants.