The High Court in Dublin in the case of Patrick Rooney v Health Service Executive [2022] IEHC 132, has made an order to strike out the proceedings due to inordinate and inexcusable delay. This delay relates to a failure by the Plaintiff to progress the proceedings, which had not evolved since the issuing of a “protective writ” in 2016.

 

Background

In May 2014, after undergoing an angiogram and angioplasty at the Mater Misericordiae University Hospital Dublin, the Plaintiff began to suffer from leg pain. In June 2014, the remnant of an angioplasty balloon and catheter were found within his superficial femoral artery. Following this, the Plaintiff underwent two further surgeries which ultimately resulted in both a below and above knee amputation.

 

Procedural Position

The Plaintiff, in order to avoid the issue of limitation, issued a protective writ in March 2016. In February 2017, the summons was served on The Health Service Executive (“HSE”), who was named as the sole defendant in the proceedings. However, the solicitor acting on the Hospital’s behalf objected to this claim on the basis that HSE, neither owning nor managing the Mater Hospital, was not the correct defendant. Furthermore, the Plaintiff failed to provide full and detailed particulars on the basis of expert opinion, and offered no response to the Defendant’s requests for same. No particulars or expert reports were ever received.

 

Consequently, the defendant issued a motion in February 2020 seeking to dismiss the proceedings. The motion was sought on the following grounds;

 

• failure to comply with the Civil Liability and Courts Act 2004 by providing full and detailed particulars of the claim;
• continued failure to obtain a report from an independent expert supporting the claim for medical negligence, and
• the inordinate and inexcusable delay in prosecuting the proceedings.

 

Decision of the High Court

In making its decision, the High Court referred to the leading judgment of the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (“Primor”). In this case, it was held that once inordinate and inexcusable delay have been established, the Court must then consider whether the balance of justice weighs in favour of or against allowing the case to proceed. Moreover, alongside the Primor principles, the Court highlighted its overlapping jurisdiction to dismiss proceedings where there is a real and serious risk of an unfair trial or unjust result. This was considered at length in the case of O’Domhnaill v. Merrick [1984] I.R. 151.

 

In applying the Primor principles to the case at hand, Mr Justice Simons held that there had been an inordinate and inexcusable delay by the Plaintiff. This was due to both the passage of time since the treatment itself and since the institution of proceedings, as well as the lengthy periods of inactivity by the Plaintiff’s Solicitor in pursuing an independent expert report.

 

Whilst the Plaintiff sought to justify the delay partly on the basis of financial difficulties, Mr. Justice Simons cited the decision of the Court of Appeal in Gallagher v. Letterkenny General Hospital [2019] IECA 156. In this case, it was held that “while the plaintiff’s financial difficulty amounts to a very genuine and significant explanation for the inability to progress his case…it cannot amount to an excuse for the delay in prosecuting his claim.”

 

Mr Justice Simons also found that it was in the interests of justice to dismiss the action for a persistent failure to comply with the statutory duty, under the Civil Liability and Courts Act 2004, to particularise a personal injuries action.

 

Conclusion

This decision is significant in that it highlights the Plaintiff’s vulnerability to a strike-out order if sufficient efforts to progress the case have not been made. It is reflective of the position of the Court of Appeal in in Sweeney v. Keating [2019] IECA 43, wherein Baker J opined that “a laissez faire attitude to the progress of litigation by the Plaintiff cannot be tolerated given that delay may constitute a violation of Art. 6 ECHR rights”.

 

Nevertheless, it should be noted that the particular circumstances of each case will ultimately determine whether or not a claim will be dismissed.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.