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1. There are two motions before the court. The first is the plaintiff's motion brought pursuant to Order 28 Rule 1 of the Superior Court Rules seeking an order allowing an amendment to his statement of claim in the manner which is outlined in the draft exhibited.

The second motion is a motion brought by the first and second named defendants seeking an order striking out and or dismissing the plaintiffs claim against the first and second named defendants and if necessary a declaration that the plaintiff is estopped from pursuing his claim against these defendants by reason of his conduct in the prosecution of his claim and by reason of the prejudice suffered by the first named defendants thereby.

The facts which give rise to this application can be summarised as follows.

On the 14 August, 1990 the plaintiff drove his car to the Racecourse in Mallow, Co Cork. From there he was transported by the first-named defendants to a shareholders meeting at which a free bar, provided by the first-named defendants, was available to the plaintiff and to other shareholders. Later that day the plaintiff left this premises and went to a number of other licensed premises in the Mallow area and subsequently the seventh-named defendant drove the plaintiff to the Racecourse in Mallow where he collected his motor car and set off on a journey. It would appear that he was intoxicated at that time. At about 8.30 pm that evening he crashed his car on the Killarney Road and suffered catastrophic injuries.

The case which the plaintiff wants to make against all the defendants is that one or other or all of them were negligent in serving him with alcoholic drink at a time when they knew or ought to have known that he was already intoxicated and as a result were wholly or partly to blame for the accident that he subsequently had and the injuries that he suffered.

The advice given to the plaintiff by senior counsel at the outset of the case was that an action should be instituted against all the named defendants, including the first and second-named defendants and a plenary summons was issued and served naming each of these defendants as a defendant. However for reasons which are not now apparent a law clerk in the plaintiff's solicitors office wrote to the first and second-named defendants solicitors on the 30 September, 1994 saying:-

"Dear Sirs,

We refer to yours of the 25th ult regarding the above and our subsequent telephone conversation and we confirm that it will not be necessary for you to enter an appearance on behalf of the first and second named defendants.

We enclose photocopy draft statement of claim which confirms at paragraph 2 thereof that the plaintiff makes no claim against these defendants".

This draft statement of claim which was subsequently delivered states at paragraph 2, having identified the first and second-named defendants, that;

"the plaintiff herein makes no claim against these defendants and will apply at the trial of the action to amend the title herein accordingly".

No appearance or defence was delivered on behalf of the first and second-named defendants and the solicitor for these defendants wrote on a number of occasions to the solicitor for the plaintiff, without reply, making suggestions that their names be removed from the title of the proceedings then listed for hearing.

In fact an informal application was made to the court sitting in Cork that the matter be listed without regard to the first and second-named defendants names on the title and this application was acceded to however no formal order was made dismissing them from the action.

The law clerk, who wrote the letter of the 30 September, 1994 indicating that no relief would be sought against the first two named defendants, left the plaintiff's solicitors office and in due course the matter came under review when it was discovered that these steps were taken contrary to senior counsel's advises and the matter now comes before the court seeking an order amending the statement of claim so as to effectively reactivate the case against the first and second-named defendants.

The first and second-named defendants for their part resist this application. They seek to have the action struck out and a declaration if necessary that the plaintiff is estopped from pursuing his claim by reason of his conduct which gave rise to prejudice suffered by the first and second-named defendants.

The prejudice suffered is summarised in paragraph 11 of the affidavit sworn on behalf of the first and second-named defendant by Mr Matthew Nagle solicitor in the following way;

"11. I say that both my clients and I completely relied on what was stated by the plaintiff's solicitors on the 1 September, 1994 and confirmed in writing to me on the 30 September, 1994. This was within just 27 days of the proceedings being served and before any steps had been taken in relation thereto. I took it then that the matter was at an end and told my clients so. Had it not been expressly stated to me orally and in writing that no claim was being made against the first and second-named defendants, the matter would have been fully investigated, the appropriate evidence gathered and steps taken to defend the claim. Because of what had been stated to me and what I in turn informed my clients, this was not done. I believe that at this stage, witnesses and documents that might have been available, are no longer available and steps that could have been taken and would have been taken, are no longer possible. I say that the first and second-named defendants would be seriously prejudiced and it would be a grave injustice to them if the plaintiff and his solicitors were allowed to retract at this stage from what they clearly stated and relied on".

Accordingly the essential relief being sought by the first and second-named defendants is that the plaintiff be estopped from proceeding with his claim against them on the grounds that he represented to them that he would not proceed against them and that they, have been prejudiced by reason of relying on this assurance. The convenient manner in which this relief is sought is that the courts strike out the plaintiff's claim against these two defendants. No submissions have been made to the court that this procedure is inappropriate.

I take as an accurate statement of the law the views expressed by the Supreme Court in Doran v Thomas Thompson and Sons Limited [1978] IR 223. At page 230 Griffin J said;

"Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him and that he may be restrained in equity from acting inconsistently with such promise or assurance".

In his judgment Kenny, J at page 237 states with approval an extract from Snells Principles of Equity as follows;

"Where by his words or conduct one party to a transaction makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them, whether contractual or otherwise, and the other party acts upon it altering his position to his detriment the party making the promise or assurance will not be permitted to act inconsistently with it."

I find it unnecessary to determine why the plaintiff's law clerk acted as he did. I am satisfied however that on the 30 September, 1994 a letter was sent to Messrs Nagle and MacCarthy solicitors for the first and second-named defendants informing them that;

"We confirm that it will not be necessary for you to enter an appearance on behalf of the first and second-named defendants. We also enclose photocopy statement of claim which confirms at paragraph two thereof that the plaintiff makes no claim against these defendants".

I am moreover satisfied that the draft statement of claim confirmed that the plaintiff sought no relief against these defendants.

I am satisfied that on receipt of this information the first and second-named defendants and their solicitors discontinued their investigations into the circumstances of the accident and that it was not until shortly prior to the issue of this motion in December of 1997 that the plaintiff attempted to reactivate his case against these defendants.

I am satisfied by then these defendants had been prejudiced by the passage of time and that the scent had grown cold and that the circumstances of the accident could not now satisfactorily be investigated by them. I am satisfied that the two necessary ingredients for estoppel have been established in this case namely that these defendants had acted to their detriment by discontinuing their investigation into the accident and that these investigations cannot now be reactivated and secondly that these circumstances came about as a result of reliance upon the plaintiff's representations.

I am therefore of the opinion that the plaintiff is estopped from now seeking to obtain any relief against these defendants.

I am further satisfied that from a practical point of view the claim which he now seeks to make against the first and second-named defendants is of minimal value. In paragraphs 3 to 8 of the amended Statement of Claim it is apparent that whilst the plaintiff may have attended at the premises of the first or second-named defendant at the outset he visited another licensed premises thereafter and in fact was driven back to his car by the sixth and seventh-named defendants being the owners of the Roundabout Tavern in Mallow so as to enable him to collect his car at a time when, it is alleged, he was "obviously inebriated". It may well be that any negligence there was on the part of the first and second-named defendant in providing alcohol to the plaintiff would have been overwhelmed by the alleged negligence of the remaining defendants if established.

I am of the view that the first and second-named defendants are entitled to the declarations sought at paragraph 2 of their notice of motion and that on that basis the court should make an order granting the relief claimed in paragraph 1 by striking out the plaintiff's claim against the first and second-named defendants.

In so far as the plaintiff's application is concerned I refuse the relief sought.