Justice delayed/Justice denied/Plaintiffs be aware
A recent High Court case highlights the increasing willingness on the part of the Court to dismiss claims where there has been an inordinate delay on the part of the plaintiff in progressing his or her claim.
In a recent judgement of the High Court the issue of delay was examined in a case of Patrick Rooney -v- The HSE.
The Plaintiff underwent a medical procedure in May 2014 and brought proceedings by way of a personal injury summons in March 2016. It issued the proceedings against the HSE, but this was not served until 11 months later namely in February 2017.
The Plaintiff had issued the proceedings on a protective basis i.e. it did not have an independent medical report. The Supreme Court many years ago determined that in bringing professional negligence proceedings Solicitors must obtain an expert report from a professional expert witness confirming that there is a prima facia case of negligence. Sometimes the plaintiff’s solicitors may be put in a position whereby they have to issue proceedings in order to avoid the case being statute barred with a view to obtaining the expert report as soon as possible after that.
The Defendant’s Solicitors wrote several times to the Plaintiff’s solicitors seeking further details in relation to the nature of the Plaintiff’s claim but it would appear that no detailed reply was provided by the Plaintiff’s solicitor.
In February 2020, just before Covid, the Defendants’ Solicitors issued a motion seeking dismissal of the Plaintiff’s claim. There was significant delay in this motion being dealt with by the Court because of the closure of the courts as a result of Covid and indeed the Motion was struck out in the September 2020 as it would appear that the Defendant’s solicitors did not attend. A further motion was issued in March 2021.
The matter came before the Court, and it was heard by Mr. Justice Simons.
There is a case in 1996 called Primor PLC -V- Stokes Kennedy Crowley which set out the factors to be considered by the Court when deciding if it should strike out a case based on delay and these three factors are as follows:
- Whether the delay can be considered to be inordinate having regard to the nature of the proceedings and all the relevant circumstances i.e. if a case is more complicated it may well be that the delay may not be regarded as inordinate.
- If the answer to question 1 is yes, the Court then has to consider whether the delay can be excused and in this regard if for instance the case is particularly complicated and there are extenuating circumstances the Court may decide that the delay is justified.
- If it is a case that the delay cannot be excused the Court still has to consider whether the balance of justice would favour the dismissal of proceedings and in making this decision the Court has to have regard to all of the circumstances of the case including whether the Defendant acted in any way by way of acquiescence to the delay.
In the particular case in question Mr. Justice Simons found that there had been an ordinate delay. He found that the delay could not be excused, and he further found that balance of justice favoured the Defendant given the length of time since the alleged negligence took place i.e. 2014. Because this was a medical negligence case the Defendant also had to establish that on the balance of probabilities there was a real and substantial risk of an unfair trial or unjust result if the proceedings were to continue.
In making his decision Mr. Justice Simons took the following factors into account namely:
- That there was a failure to provide proper replies to particulars of the claim. This is a statutory requirement under the Civil Liability and Courts Act 2004.
- The Plaintiff failed to obtain an independent expert report.
- The Plaintiff and his Solicitors were guilty of an inordinate and inexcusable delay in progressing the proceedings for no reasonable cause of action had been disclosed against the HSE.
It may well be that the Plaintiff effectively put his/her head in the sand and did not progress this case and give proper instructions to his/her solicitor. The difficulty for Solicitors in cases such as this is that they may well allow cases to go on but if a case is struck out the Solicitor is left in a situation where they may be vulnerable to a claim for negligence by their client particularly if the Solicitor has not warned the client that ongoing delay may result in the proceedings being struck out. On the other hand, Plaintiffs may not realise that if their Solicitor is not acting in an efficient and proactive fashion that there is a danger that their case be struck out and there is an onus on them to ensure that they are fully informed, and the case is progressing with reasonable speed and efficiency.
There are lessons to be learned from this and other recent cases and there is no doubt that the Courts are less forgiving of Plaintiffs and their Solicitors in lengthy delays in progressing their claims.
If you have any queries in relation to this or any other litigation matter please do not hesitate to contact Brendan Dillon or one of the other solicitors in the office on 01-2960666.
