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Published 20 March 2023
A number of applications came before the High Court in 2022 where the relief sought was dismissal of the proceedings on the grounds of delay, and failure to disclose a reasonable cause of action amongst other things. It has traditionally been very difficult for a Defendant to succeed in such an application, however, 2022 saw some limited success for Defendants in these applications and we will now look at two cases where thoseapplications succeeded and two where they were denied.
Rooney v Health Service Executive  IEHC 132
This case arose out of a femoral angioplasty performed at the Mater Hospital, Dublin in May 2014 following which the Plaintiff required below and above knee amputations. Proceedings were issued in March 2016 and served in February 2017 and following a period of inactivity, the Defendant issued a motion to dismiss. The High Court dismissed the claim and Mr Justice Simons delivered a detailed written judgment in March 2022. In applying the test established in Primor plc v Stokes Kennedy Crowley  IECA 156, the Court held that there had been inordinate delay in this case in circumstances where almost eight years had passed since the treatment itself and six years had elapsed since the proceedings had been instituted.
In addition to dismissing the claim for inordinate and inexcusable delay, it was also held that it was in the interest of justice to dismiss this case for failure to comply with the statutory requirement to particularise a personal injuries action. Mr Justice Simons commented that “in a very real sense, the proceedings were never properly commenced” in circumstances where the Plaintiff had failed to obtain an expert report upon which to base and maintain the case. The Court held that the delay in the case was unreasonable such that to continue without the expert report amounted to an abuse of process and the proceedings were duly dismissed.
Harte v Pallany Pillay T/A City General Hospital  IEHC 359
The Plaintiff in this case sustained catastrophic injuries after her birth, resulting in the requirement for lifelong care. In considering whether the case should be dismissed on the grounds of delay, Ms Justice Bolger did not apply the Primor test, since the Plaintiff remained under a disability, and as per Sullivan v. HSE  IECA 287, was held that the Court was required to assess “whether there is a real and substantial risk of an unfair trial on the basis of the lapse of time since the event giving rise to the action occurred”.
In applying this test, the Court was not satisfied that there was a real and substantial risk of an unfair trial and found that there were sufficient records available to the Defendants to allow the case to be defended without prejudice. The Court distinguished this case from other cases which were dismissed where Plaintiffs had no supporting expert reports, as was the case in Rooney and accordingly, the Plaintiff’s application to dismiss the casewas denied.McDonald v A Z Saint Elizabeth Hospital  IEHC 369
In this matter, the Plaintiff alleged that he suffered complications as a result of an internal fluid spillage during a gastric bypass procedure. The Defendant brought an application to dismiss the case on the grounds of two periods of delay, which amounted to almost three and a half years in total. The Court applied the Primor test, as in Rooney, but with the opposite outcome. In refusing the Defendant’s application, the Court held that the delay was not inordinate since it was made up of two distinct periods. It further held that the delay was not inexcusable because the second period of delay was directly attributable to the Covid-19 pandemic. In terms of the balance of justice limb of the test, the Court held that the Defendant hospital did not identify specific prejudices. Despite the potential reputational damage to the hospital, it was held that the balance of justice lay in favour of allowing theclaim to proceed since liability would ultimately be decided primarily by expert evidence (based on records), rather than the oral testimony of witnesses.
T.B. v Health Service Executive And Ors  IEHC 538
Finally, in this case the Plaintiff was a Litigant in Person who issued proceedings in 2018 making “a range of extremely serious allegations against no less than 8 different hospitals or medical practices, and 20 named medical practitioners”. The grounds upon which the Defendants sought to dismiss the proceedings included failure to disclose a reasonable cause of action. In dismissing the claim, the Court noted that none of the Plaintiff’s claimswere underpinned by the expert evidence of an independent medical practitioner and held that it was not enough for a Plaintiff to believe that she is the victim of medical negligence, that belief must be supported by the views of a qualified medical doctor. The Court held that the Plaintiff’s claim was bound to fail and the continued existence of the pleaded case constituted an abuse of process entitling the Court to dismiss the Plaintiff’s claim.
As is evident from the cases of Harte and McDonald, it remains difficult for a Defendant to succeed in dismissing a Plaintiff’s claim where that case is supported by expert opinion, even where significant delays have arisen. In order to succeed, a Defendant would likely need to show specific prejudices suffered as a result of the delay.
However, the cases of Rooney and T.B. demonstrate that the Courts will grant dismissals in certain circumstances, including where the Plaintiff has failed to obtain expert evidence.
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