Andrew Matthew McGivern v South Eastern Health and Social Care Trust [2023] NIMaster 13  

The High Court of Justice in Northern Ireland recently considered a clinical negligence action which raised issues in relation to court reviews, directions and non-compliance with an unless order. The action serves as an important reminder of the risks parties run if they fail to appreciate the nature and purpose of an unless order, and the consequences of non-compliance.

 

Unless Orders

Practice Note 1 of 2012 states that:

“An “Unless Order” is an order of the court by which a conditional sanction is attached to an order requiring performance or a specified act by a particular date or within a particular period.”

 

Practice Note 1 continues to explain that every unless order made by the Master should state in clear terms:

1. The step in the action which the party against whom the order is directed is required to perform
2. The time within which that step is to be taken
3. The rule or previous order of the Court which was not complied with
4. The sanction which is to occur in the event of default
5. The precise terms of the judgement to be obtained where the sanction is striking out of the action.

 

An order made in the above terms shall constitute a default judgement in the action, which shall be final for the purposes of enforcement of costs. In the event of non-compliance with the terms of the unless order, the order will take effect without the need for any further order from the court. The party of whom is entitled to judgement should file either an affidavit, or a certificate of non-compliance signed by the party.

 

 

Facts

The cause of action occurred on or around the 26 June 2017 and involved an alleged delay in treatment of the Plaintiff’s appendicitis which resulted in the Plaintiff having to undergo open surgery. The Writ was issued on 25 June 2020 with a letter of claim served on 21 September 2021.

 

The action was reviewed three times, and on all three occasions it became apparent that the Plaintiff solicitor had not complied with the directions of the court. Paragraph 5 of the Order reminded the practitioners that should an extension of time for compliance be required, it should be sought from the court before the expiry of the prescribed time limit. No extension of time was ever sought by the plaintiff solicitor on any occasion and as a result, on the third review, an unless order was issued which stated the following:

“It is ordered that unless within 4 weeks of the date of service of this order, the plaintiff serves a statement of claim in compliance with the order of the court dated the 29^th June 2022, the plaintiff’s action shall be struck out, with judgement for the defendant with such costs in the action to be taxed in default of agreement. And it is further ordered that the action shall be listed for review before the Master on 9 January 2023”.

 

The defendant served the order on 10 November 2022 which was received by the Plaintiff solicitor. The order was not complied with and therefore the defendant filed a “certificate of non-compliance” on 13 December 2022 and the case was struck out.

 

 

Decision

The court concluded that the Plaintiff was clearly in breach of the unless order which was in line with the Practice Direction of 2012. It was further concluded that, having regard to the Hytec [1] principles, an unless order was used as a last resort due to a history of failure to comply with other orders. It was concluded that the failure to comply was not something that was beyond the plaintiff solicitor’s control. The case had been plagued by inordinate delay, procedural flaws, serial non-compliance with court directions and the non-observance of the court rules or compliance with the pre-action protocol.

For the reasons above, the actions of the plaintiff’s solicitor were considered sufficient to refuse the plaintiff’s application. Costs were awarded to the defendant.

This case is one which reiterates to practitioners the risks of failing to understand the purpose of an unless order and the consequences of non-compliance. The case further highlights to practitioners the importance of Master’s reviews as important milestones in the life of a case. Master’s reviews help to ensure the litigation progresses expeditiously and in a manner which is likely to minimise costs which is in line with the overriding objective set out at Order 1 rule 1 (a) of The Rules of the Court of Judicature (NI) 1980.

[1] Hytec Information Systems Limited -v- Coventry City Council [1997] 1 WLR 1666

 

 

For legal guidance and advice regarding unless orders or clinical negligence, please contact Aimee Crilly, Alistair Wilson or any member of our Healthcare team.

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.