THE SUPREME COURT
Appeal No: 266/2011
T & S Taverns Limited t/a Red Cow Inn
Judgment of the Court delivered the 21st of January 2015 by O’Donnell J.
1. The plaintiff claims that on the 14th of July 2007 while working as a security officer at the Red Cow Inn complex on the Naas Road in Dublin, and more specifically at a night club being run on the premises and known as Club Diva, he was injured when a car driven by a person unknown to the plaintiff, but subsequently identified as a Christopher Dunne, drove though a number of bollards, mounted the footpath and struck the plaintiff. On the 18th of May 2010 he commenced proceedings claiming damages for personal injuries against the defendant, which is the licensee of the premises. It is no part of this appeal to speculate as to why the plaintiff did not seek to proceed against the driver of the motor car, or to make any observations as to the strength or weakness of the plaintiff’s case against the defendant. The only issue at this point, is whether this case against this defendant, whatever its prospects of success, is barred by the provisions of the Statute of Limitations. It is of some importance to observe that the plaintiff’s claim against the defendant arises out of the manner in which the night club was run and organised, and in particular an allegation that a short time previously, a similar incident occurred and no proper or adequate preventative steps had been taken to ensure that such an incident did not occur again. The plaintiff was not employed by the defendant or on the premises at the time and accordingly, the claim does not appear to me to be one based on either employers or occupiers liability, but rather is for negligence in the management of the business of the night club.
2. The chronology of the development of this case is somewhat complicated but nevertheless important. Under the provisions of s. 7 of the Civil Liability and Courts Act 2004, a personal injuries claim must be brought within a two year period of the accrual of a cause of action, subject to certain statutory exceptions and qualifications of which s. 50 of the Personal Injuries Assessment Board Act 2003 (“the 2003 Act” or “the Act”) is important for present purposes. It will be necessary to consider the terms of s. 50 in greater detail later, but for present purposes it is enough to note that s. 50 disapplies the Statute of Limitations for the period during which a claim is being considered by the Personal Injuries Assessment Board (“PIAB” or “the Board”), and for a period of six months thereafter. On the 8th of May 2009 and accordingly only just less than two months before the expiry of the basic two year period, reckoned from the date of the incident, the plaintiff instructed solicitors to commence proceedings. On the 12th of May 2009 the plaintiff’s solicitors instructed a search agency to carry out a search as to “whom the registered owners of Club Diva are”. That agency responded on the 14th May that a business name search disclosed a business name, “Club Diva”, with a registered office at the Red Cow, Naas Road, Dublin 22 which was owned by Thomas Moran. Thomas Moran’s address was also provided. On the 15th of June 2009 letters were written to Mr Moran and copied to PIAB.
3. On the 30th of June 2009 the application to PIAB was finalised and noted as completed on the 1st of July 2009. At this point there were 3 days of the original two year limitation period remaining, but as touched on above, the effect of an application to PIAB is to stop time running and suspend for a statutorily defined period the operation of the Statute of limitations (at least as against the proposed defendant). The application form is exhibited in the affidavits exchanged in these proceedings. The application was notified to Mr Moran by the Board pursuant to the statutory procedures under which that body is established. The respondent was identified in the form as “Thomas Moran Trading as Club Diva, Red Cow, Naas Road, Dublin 22” (commas added). On the 9th of October 2009 the Board received an email from a Mr Peter Haran entitled “Re: Robert Renehan - v - Morans Hotel/Club Diva”. The email stated “On behalf of Moran Hotels we confirm that we decline to an assessment in this case”. In his affidavit grounding the application for the trial of a preliminary issue, Mr Moran states simply that “On the 9th October 2009 the Injuries Board was notified that Moran’s Hotel/Club Diva declined to an assessment in the case”. No explanation is given as to the identity or authority of Mr Haran or his relationship to the various entities and individuals involved in this case. It is apparent that the email takes no issue with the identity of the proposed defendant. The letter of claim and notice of application was directed towards Mr Moran personally but the email is on behalf of Moran’s Hotel/Club Diva and confirms that “Moran Hotels” declines assessment. Accordingly, on the 14th of October 2009 an authorisation under s. 14 of the 2003 Act was issued to the claimant Robert Renehan identifying the name of the respondent as “Thomas Moran Trading as Club Diva” and authorising Robert Renehan to bring proceedings in respect of his relevant claim. The authorisation was sent under a covering letter which was addressed to Garwyn Ireland Limited (“Garwyn’s”), a firm of loss adjusters who, it appears, must have been in contact with the Board on behalf of Mr Moran, Club Diva and/or Moran’s Hotels. The letter from the Board stated, correctly, that:
I will refer to this authorisation hereafter as “the first authorisation” for clarity. In the simplest terms, the position now was that if proceedings were commenced against Thomas Moran trading as Club Diva, before the 26th April 2010 (6 months from the date of authorisation plus the period left to run as of the date of application) the proceedings would have been within time. However before proceedings were initiated, matters became much more complex.
“The time allowed under the law for Mr. Renehan to take legal action in connection with this claim was put on hold from the time the claim was acknowledged as complete by the Board on 01/07/2009 and will remain on hold for a further six months from the date of the Authorisation, a copy of which is attached”.
4. On the 20th of October 2009 Garwyn’s wrote to the solicitors for the plaintiff now identifying their client as “Red Cow Inn”. That letter, which was written by a Mr Ruairí McMullin, confirmed that the liability adjusters acted for the “proprietors of Club Diva” and suggesting that liability lay with the driver of the motor car. The letter also asked that if the plaintiff’s solicitors maintained that Garwyn’s “client” was in any way negligent in relation to the incident that full particulars of negligence should be forwarded. The letter does not suggest however that the title of the proposed defendant is incorrect. Nevertheless in response to this letter the solicitors for the plaintiff sent a fax to the loss adjusters asking them to confirm the correct title of the defendant. No reply was received to this letter. The solicitor for the plaintiff has sworn that he had spoken subsequently to Mr McMullin in Garwyn’s. The solicitor said that they discussed the case at some length but there was no discussion in that conversation about the identity of the defendant or indeed any suggestion that there was any difficulty in that regard. On the 3rd of December 2009 a reminder was sent by the solicitor asking for a response as a matter of urgency to allow progress to be made in the matter. This letter was replied to by letter of the 7th of December 2009 from Garwyn’s signed by Mr McMullin which now stated “[p]lease note that Thomas Moran is not the owner of the Red Cow Inn. The Red Cow Inn is owned by T & S Tavern Limited and you may name T & S Taverns on any proceedings you may issue in this case”. The letter also stated that any proceedings would be defended in full, that counsel’s advice had been received and that counsel was confident that the defendant had no case to answer and suggesting that liability lay with the driver of the motor vehicle. The letter also offered the view that counsel had advised that the Statute of Limitations had not expired against the driver as his actions would constitute an assault and the statutory time limit for assault was six years. Taken on its face, this letter does not suggest that any point will be taken about the correct title of the defendant. Instead the plaintiff is invited to sue T & S Taverns should he wish to proceed with his claim against the occupier owners of the Red Cow Inn. Furthermore, there is no hint in this correspondence that it would be claimed that any such proceedings were statute barred, even though the operation of the Statute of Limitations was clearly adverted to since the plaintiff’s solicitors were advised that a claim could still be brought against the driver of the motor vehicle. The fact is however that when this correspondence issued, the plaintiff, while comfortably within the extended limitation period created by the operation of s. 50 of the 2003 Act, was outside the basic two year period calculated from the date of the incident.
5. The plaintiff’s solicitors were understandably concerned about this information and wrote to PIAB on the 12th of January 2010 enclosing the first authorisation, the letter from Garwyn’s of the 7th of December and stating that “[w]e must amend the proceedings to reflect the title of the Defendant which appears to be T & S Taverns Limited. We should be obliged if you can assist us in this matter”. It should be noted that no proceedings were issued at this time and the request made was somewhat general, but I think the letter must be taken to amount to a request to amend the existing authorisation. The Board replied promptly on the 14th of January 2010, and first sought clarification that proceedings had been issued and then drew the plaintiff’s solicitors’ attention to the provisions of s. 46(3) of the 2003 Act and stated:
This produced a very detailed response on the 18th of January 2010 setting out the sequence of events and inviting the Board to consider the matter under s. 46(3) of the 2003 Act and to amend the authorisation on the grounds that the failure to name T & S Taverns was due to “ignorance of all the facts on our part”. The letter accordingly asked the Board to amend the authorisation as soon as possible as time was of the essence. While it will be necessary to consider s. 46(3) in some detail later, it is enough here to say that s. 46 (3) permits the Board to issue an authorisation where, inter alia, there is mistake or ignorance as to the true facts. Significantly the issuance of such an authorisation also has the effect of meaning that the relevant limitation period is extended for six months afterwards.
“In order for the Board to consider whether the claim is appropriate to be considered under section 46(3) of the PIAB Act 2003 please state whether T & S Taverns Limited was not specified in Mr. Robert Renehan’s application through genuine oversight or ignorance of all the facts relating to the matter.”
6. On the 22nd of January 2010 the plaintiff received a further letter from the Board, this time signed by a different person, which was apparently in standard form. In it PIAB purported to “acknowledge receipt in respect of T & S Taverns Limited of the application … and confirm that the application was completed on the 13/01/2010, for the purposes of Section 50” and referred the claim to the proposed defendant. By an email of the 26th of January 2010 Mr McMullin confirmed that Garwyn’s acted on behalf of T & S Taverns and did not consent to an assessment. Accordingly, on the 3rd of February 2010 PIAB issued a further authorisation (“the second authorisation”) to Mr Renehan. That authorisation now named the respondent as T & S Taverns and the covering letter stated:
As stated at the outset of this judgment, these proceedings were issued against T & S Taverns alone on the 18th of May 2010 in reliance on this authorisation and within the period of six months afterwards.
“The time allowed under the law for Mr. Renehan to take legal action in connection with this claim was put on hold from the time the claim was acknowledged as complete by the Board on 13/01/2010 and will remain on hold for a further six months from the date of the Authorisation, a copy of which is attached.”
7. From this recital of events however, it is clear that the proceedings were issued more than two years after the date of the accident and more than six months after the date of the first authorisation, which related to Mr Thomas Moran personally. When solicitors came on record for the defendant they immediately raised the question of the Statute of Limitations and in due course the defence was delivered pleading that the proceedings were statute barred. An application was brought by motion on notice grounded on the affidavit of Mr Moran seeking the determination as a preliminary issue of the question as to whether or not the proceedings were indeed barred by the provisions of the Statute of Limitations. The matter came on before Mr Justice Hanna who, on the 23rd of May 2011, dismissed the application and ruled that the plaintiff’s claim as against the defendant was not statute barred and made a declaration that the date of accrual of the cause of action was the 7th of December 2009, reserving the costs of the motion to the trial of the action. The defendant now appeals.
8. There are two preliminary observations which might be made. First, it is apparent from a close consideration of the papers that there was some confusion about the circumstances under which PIAB issued the second authorisation on the 3rd of February 2010. The application made to it (as to some extent clarified and invited by PIAB) was to amend proceedings pursuant to s. 46(3). However, it appears to have been processed in a standard form identifying the letter of the 12th of January 2010 as a new application and issuing what appeared to be a fresh authorisation. However, it seems clear that no fresh application was made for a separate authorisation, and that the only application made on the 12th of January was one made under s. 46(3) which indeed was the section raised by PIAB itself, and which on its face seems to be an appropriate section for such a procedure. It has not been suggested that the case did not fall within s. 46(3) since it is plain that the plaintiff and his solicitors were ignorant of the true facts, namely that T & S Taverns were the licensees of the premises, until notified by the letter of the 7th of December 2009. The parties in their correspondence, and indeed in argument both in the High Court and in this Court, have addressed the authorisation of the 3rd of February 2010 as if it were made under s. 46(3). If the authorisation was contended to be an authorisation for which application was only made on the 12th of January 2010 (as the letter from PIAB seemed to state), then it might have been necessary to bring proceedings to quash this authorisation on the grounds that no separate application was made, and to seek an order of mandamus compelling the Board to make a decision on the application under s. 46(3) and indeed issue an authorisation pursuant to s. 46(3). However, since no issue has been raised in this regard, and there are already sufficient complications in this case, and in any event the characterisation of the application is an issue of law, I consider it both permissible and appropriate to treat the second authorisation as the parties have treated it, and as an authorisation issued pursuant to s. 46(3) of the 2003 Act.
9. The second observation is that while these facts are complex, they are capable of being distilled in to a simple, and incontestable, chronology since nearly every significant step in the proceedings is recorded in correspondence or otherwise in documentary form. The issue for both the High Court and this Court does not turn on any finding of fact or interpretation of correspondence. Rather it is whether on the admitted and agreed facts, the plaintiff’s claim must be held to be statute barred or whether on some legal argument the plaintiff’s claim can be maintained. It must be said therefore, that it is unsatisfactory that this information must be extracted and collated from affidavits which are less than comprehensive and certainly not forthcoming. Similarly, the legal submissions exchanged and filed are like ships which pass in the night rather than clearly engaging on an area of law which, while complex and refined, is nevertheless the subject of a number of decided cases and which ought not to be seriously in dispute. In this case the important fax of the 21st of October 2009 was not exhibited by either party. Furthermore, Mr Moran’s grounding affidavit does not refer to the conversation alleged to have occurred between the plaintiff’s solicitors and Garwyn’s shortly after the 21st of October 2009. Even though significant reliance was placed on this conversation in the replying affidavit of Mr Hennessy, there was no response forthcoming. Furthermore, the grounding affidavit does not explain who Mr Haran is who sent the first email on the 9th of October 2009 and more particularly gives no explanation of the relationship between Mr Moran, Moran’s Hotels, the business name Club Diva, the relationship of T & S Taverns to Mr Moran and the premises, or the circumstances in which it is said, apparently, that T & S Taverns trade as Club Diva when that business name is registered to Mr Moran, and when s. 22 of the Companies Act 1963 requires any company trading under a business name (as apparently T & S Taverns were trading), to register that name as a business name. In this case the gaps in the evidence may be as much about inadvertence and inattention as a desire to present only evidence which would assist the parties. But it is worthwhile repeating the observations of Girvan J. (as he then was) in the Northern Ireland case of in Re Downes  N.I.Q.B. 77 in which he said at paragraph 31:
I would add that affidavits should deal fairly with all available facts and the submissions should deal with any arguments and issues that have been raised, or otherwise run the risk of paying a heavy price in terms of the credibility of the case made, as well as the risk that a case will be decided on incomplete facts or submissions.
“The affidavits of all parties should be drafted in clear unambiguous language. The language must not deliberately or unintentionally obscure areas of central relevance and draftsmen should look carefully at the wording used in any draft to ensure that it does not contain any ambiguity or is economical with the truth of the situation. There can be no place in affidavits in judicial review applications for what in modern parlance is called ‘spin’.”
10. The essential argument on behalf of the defendant was simple and straightforward. Relying on an analogy with the commencement of proceedings, the defendant pointed out that by the time the plaintiff first threatened proceedings against T & S Taverns in January 2010 it was already more than two years from the date of the accident and the proceedings were already statute barred. Accepting for the purposes of this argument that the plaintiff did not have knowledge of the identity of the defendant (T & S Taverns) until notified by Garwyn’s by the letter of the 7th of December 2009, the defendant contended that this did not have the effect of postponing the accrual of the cause of action until the date of such knowledge pursuant to s. 2(1)(d) of the Statute of Limitations (Amendment) Act 1991, because under s. 2(2) a person’s knowledge “includes knowledge which he might reasonably have been expected to acquire – (a) from facts observable or ascertainable by him”. It was suggested that a simple licensing search would always disclose the person with the lowest interest in the premises i.e. the person in operation of licensed premises, that such a search could be done just as easily as the business name search actually carried out on behalf of the plaintiff and it would have disclosed T & S Taverns as the licensee. Accordingly, since this information was readily available, the relevant knowledge was to be imputed effectively as of the date of the injury or shortly thereafter. On this argument time had run before the plaintiff approached PIAB in respect of T & S Taverns Limited.
11. In my view the first step here is to analyse the impact of the 2003 Act, and particularly, the provisions of s. 50 which apply to the reckoning of time for the purposes of the Statue of Limitations.
12. The 2003 Act is intended to facilitate the early resolution of personal injuries claims and thus to reduce the burden of costs upon defendants, and particularly insurers. It operates by requiring persons who have personal injuries claims as defined by the Act to submit a claim for assessment to the Board established under the Act. Assuming the proposed defendant agrees to assessment, an assessment is issued which, if the parties are willing to accept, will resolve the case. If the plaintiff refuses to accept an assessment he or she is then issued with an authorisation which permits the commencement of proceedings. Similarly, if as occurred here, the defendant refuses either to consent to the assessment process or to accept the assessment issued, a prospective plaintiff is issued with an authorisation and proceedings may be commenced. It is apparent therefore that this process may take some little time and in order to facilitate the process, and the consideration of any offer, provision is made in the Act for a standstill period while an application is considered by the Board and for some time thereafter, which is not reckoned for the purposes of the Statute of Limitations. Thus s. 50 of the Act provided:
(I should observe in passing that section 50 of the 2003 Act has been amended by s. 56(d) of the Civil Law (Miscellaneous Provisions) Act 2011, but the substituted section only applies to applications made after the coming into force of that Act, and in any event the changes do not appear material for the present case.)
“In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991, the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32 or 36, rules under section 46(3) or section 49 shall be disregarded.”
13. Those provisions of the Act permitting the issuance of an authorisation, referred to in s. 50 require some elaboration. Section 14(2) is the provision which in this case arose on two occasions, and which applies when a respondent states that he or she does not consent to an assessment. In such a case it is the duty of the Board to issue an authorisation as soon as may be thereafter. Section 17 provides for those cases where the Board considers that it is inappropriate to make an assessment by reason of the novelty or complexity or detail of the matters claimed, s. 32 deals with the issuance of an authorisation if the assessment is not accepted by either party. Section 36 provides for the issuance of an authorisation where it is necessary to seek the approval of the court before the acceptance of an offer, and where such approval is not forthcoming. In each such case an authorisation issues and the issuance of proceedings is permitted. Section 49 of the Act deals with the default position when the Board is not in a position to make an assessment within the statutory period, or the extension thereof. Again an authorisation issues in such a case.
14. However, s. 50 also refers to the issuance of an authorisation under, “rules under s. 46(3)”, and it is that section which is relevant in this case. Section 46 permits the Board to make rules generally, and s. 46(3) provides for the Board to be enabled, pursuant to rules made under the section, to issue an authorisation. Subsection 3 provides as follows:
15. The relevant provisions of subs. 3 can be simplified for present purposes as permitting the making of rules for the issuance of an authorisation where a claimant is not otherwise authorised, where the claimant wishes to bring proceedings in respect of his or her relevant claim against one or more persons, omitted from his or her application under s. 11 through genuine oversight or ignorance of all the facts, as being a person liable to him or her in respect of that claim. The Act defines claimant as a person entitled to pursue a civil action. A civil action is in turn defined as “an action intended to be pursued for the purpose of recovering damages in respect of a wrong for – (a) personal injuries, or (b) both such injuries and damage to property (but only if both have been caused by the same wrong)” (s. 4(1)). The Rules made in 2004 merely repeat the provisions of the Act n respect of s. 6(3) and do not add anything of substance.
“Rules under this section shall enable the Board (subject to rules under subsection (4)) to issue to a claimant a document (in this Act also referred to as an “authorisation”), in circumstances where the claimant is not otherwise authorised under a provision of this Act to bring proceedings in respect of his or her relevant claim, in either or both of the following cases, namely—
(a) section 18 (3) or (6) applies in respect of one or more of the respondents to the relevant claim and the claimant wishes to bring proceedings in respect of that claim against that respondent or those respondents (acting, unless he, she or they are no longer of unsound mind, by a guardian or a committee),
(b) the claimant wishes to bring proceedings in respect of his or her relevant claim against one or more persons whom he or she omitted, through a genuine oversight or ignorance of all of the facts relating to the matter, to specify in his or her application under section 11 as being a person or persons liable to him or her in respect of that claim.”
16. Viewed in the abstract there is considerable logic in the approach of the defendant in this case. The concept of a “claim” perhaps contemplates that it is brought against a particular person in respect of the alleged wrong. The Statue of Limitations provides a defence for each individual defendant. It is conceivable that a claim arising form the same facts may be barred against one person and not against another, and also possible, at least in theory, that one defendant will seek to plead the Statute of Limitations whereas another sued in respect of the same cause of action may choose not to do so. It might follow that it is only necessary to suspend the running of time for the purpose of the Statute of Limitations in respect of the period during which the Board, in the first place, and the parties subsequently, are considering the process of assessment of a claim against each individual defendant. However, it is notable that the 2003 Act as a whole is drafted with a view to introducing a novel compulsory procedure into the process of civil litigation which may involve the limitation of constitutional rights. The Act appears to be very careful to avoid any contention that it is intruding unfairly on the decision of a plaintiff to seek compensation in civil proceedings. Thus it would be obviously unfair if the period during which a plaintiff was required to engage with the statutory authority was capable of being counted for the purposes of a possible defence under the Statue of Limitations. Accordingly s. 50 creates a very wide standstill period. Even in a standard case it provides for a six month period after the date of issuance of an authorisation during which the Statute of Limitations does not run. This is a reasonably lengthy period given that the plaintiff has already had the benefit of the period during which the Board has considered the claim, to consider what he or she thinks, and is advised, is the value of the claim, and to prepare for the possibility that it may be necessary to bring civil proceedings in the event that the PIAB figure is unattractive.
17. There is no doubt that proceedings here were commenced within six months from the date of the issuance of the second authorisation, and that is the only relevant authorisation in respect of this defendant. The question is however, when the period of disapplication of the Statute of Limitations in respect of this began. In that regard, the section is very clear. It provides for the disapplication to commence on the “making of an application under section 11 in relation to the claim”. In this case only one application was made under s. 11 in respect of this accident, and that was the claim lodged on the 30th of June 2009. It should be noted that s. 11(2) requires the application to be in the form specified by the rules under s. 46. The only such application was made on the 30th June 2009. Accordingly it seems clear that where an application is made in respect of a claim for personal injuries against one defendant, and it becomes clear that there is a further potential defendant either in addition to or in substitution for the original defendant, then s. 46(3) comes into play, and if that jurisdiction is properly exercised, then an authorisation under rules made pursuant to s. 46(3) fixes the end point of the period during which the statute is disapplied, at least vis-à-vis the respondent named in the authorisation. It is not necessary here to consider whether the effect of s. 50 is to extend a disapplication period in relation to an original defendant since that issue does not arise here.
18. It may be argued that as so interpreted this is an unnecessarily broad provision and permits a very extensive disapplication of a limitation period which may save an otherwise statute barred claim, and that such a result was not intended. But the 2003 Act is a very elaborate and complex mechanism and it is not clear that there is any statutory policy as to what should happen in claims in which there is a significant doubt as to the identity of the correct defendant. It is not in any event implausible that given the general posture of the Act, it would seek to provide for a generous period of disapplication of the Statute of Limitations. In any event, it is not necessary to speculate further in this regard as to what may or may not have been intended. The words of s. 50 are, in this context, unambiguous. There is a period of disapplication of the statute. It requires a commencement point and an end point. The end point here is an authorisation issued under rules pursuant to s. 46(3) and the only starting point is the making of an application under s. 11. The Act does not, as it might, provide for the making of an application under s. 11 or for amendment or substitution under rules pursuant to s. 46(3) as appropriate as the starting point, nor does it deem an application under rules made under s. 46(3) as a separate application under s. 11 for the purposes of s. 50. Indeed the very words of s. 46(3) refer to omission from his or her application under s.11, which can only refer to the original application of the 1st of July 2009, from which T & S Taverns was indeed omitted. The interpretation that is arrived at on the words of the section is neither absurd nor incapable of operation. In this case, as applied, it means that the period beginning on the 1st of July 2009 and ending six months from the date of the issuance of the second authorisation on the 3rd of February 2010, is disregarded for the purposes of the computation of the Statute of Limitations. This means that even on a strict application of the two year limitation period from the date of the accident, the limitation period expired on or about the 17th of August 2010. It is not necessary to identify the precise date since the proceedings here were issued on the 18th of May 2010 and thus clearly within the statutory period. Accordingly, it is not necessary to consider the other arguments raised in this case as to the effect of s. 2(1) and s. 2(2) of the Statute of Limitations (Amendment) Act 1991, or the argument that there had been concealment which disapplied the limitation period pursuant to s. 71 of the Statute of Limitations Act 1957 or that in any event, the defendant was estopped by its conduct from relying on the statute in this case. In the circumstances, I would dismiss the appeal.