Negligence claim against the Minister for Defence fails due to inordinate delay



A man has lost his appeal against the High Court’s dismissal of his negligence claim against the Minister for Defence, after the Supreme Court reaffirmed the High Court’s position that there had been inordinate and inexcusable delay.

The appellant Peter McGarry’s claim had been that he had suffered nervous shock and post-traumatic stress disorder, following his role in the Defence Forces in the 1970s and 80s, during which time he was required to assist with the retrieval of bodies from the Stardust Fire Disaster.

The appellant claimed he sustained post-traumatic stress disorder as a result of witnessing the remains of the young victims, and that the Army Psychiatrist diagnosed him with ‘reactive depression’.

Relevant to the case were psychiatric reports obtained from Dr Brian McCaffrey, in which were details of an incident during the appellant’s assignment in County Cavan.

The incident, which involved a serious fight, was detailed in the report as occurring after the Stardust Fire Disaster, yet the army records of the time indicated that it had occurred in 1979.

Dr McCaffrey also described the appellant as accepting that his memory was very fallible.

Following the appellant’s discharge from the army in 1981, the appellant submitted that his life was in turmoil, featuring attempts at suicide, drink and drug abuse, time in prison, and a diagnoses of post-traumatic stress disorder.

There was a lack of information as to what occurred in the appellant’s life between 2000 and 2010, although it appeared that his medical and psychiatric condition had stabilised by 2003.

Since 2007, he has lived in Liverpool with his partner, on whom he relies to ensure that he takes his medication.

The Supreme Court observed that while there were a number of factors surrounding the appellant’s life which would evoke sympathy, the question was whether the action against the respondents could lawfully proceed.

This could only be viewed from the standpoint of the elapses of time, and any explanations, which have undoubtedly occurred.

The Court identified the test as being whether the delay was inordinate, inexcusable, and where the balance of justice lies, as well as there being an overarching test as to whether a claim is “beyond the reach of fair litigation”.

The plaintiff stated he was diagnosed with post-traumatic stress disorder in May 1995. But, the proceedings were not initiated until seventeen months later, when the plenary summons was issued only on the 9th October 1996.

By then, over 15 years and 7 months had elapsed after the trigger-events said to give rise to the cause of action. The plenary summons was then not served until the 3rd October 1997, just within the period of 12 months permitted by the then Rules of the Superior Courts for such service.

The Statement of Claim was not delivered until the 28th October 1998, and a notice of intention to proceed was served on the 16th February 1999.

A notice of particulars was delivered by the respondents on the 7th April 1999, and was replied to on the 19th December 2005.

A further notice of intention to proceed was served dated the 13th December 2005.

Thereafter, it appears that the appellant did not take any further concrete steps to bring the matter on for trial, until a notice of a trial was served in May 2009.

The motion to dismiss the claim was brought on the 21st December 2009.

The Court found that by any standard, the delays which occurred both pre- and post-commencement of the proceedings were inordinate and inexcusable.

The respondents noted that the claim had not been brought to their attention until 1996, and that although they had carried out searches for records and witnesses, they were unable to state what did, or did not, in fact, happen at the times alleged by the appellant.

Counsel for the respondent submitted that the consequence of this was that the proceedings would be inherently unfair and, effectively, reliant upon assertion, without even the possibility of counter-assertion, clarification, or factual checking of any issue regarding the event itself.

The High Court had noted the appellant contended that this delay arose from a failure to identify the medical and psychological problems from which he was suffering.

The High Court judge pointed out that, while it might be possible to attribute some of the pre-commencement delay to difficulties in diagnosis, the same could not be said of the post-commencement delay, where, as he pointed out, the authorities indicate that every effort must be made to bring proceedings on as fast as possible.

The High Court judge held that there was a public interest in proceedings coming on for trial within a reasonable time; that the defendants had a constitutional right to have the case heard within such time, and that such right required vindication, in that courts must intervene in some circumstances, to prevent a long delayed trial from proceeding, as a matter of justice. He held that the balance of justice required the dismissal of the case.

The Supreme Court found that there was no doubt that the delay had been inordinate and inexcusable.

It was noted that “Given that elapse of time, prior to the issuing of proceedings, the law provides that there was a particular duty on the appellant to expedite the progress of the proceedings thereafter (see the observations of Geoghegan J. in McBrearty v North Western Health Board IESC 27, and Henchy J. in Sheehan v. Amond I.R. 235).”

Furthermore, the case was one where a number of potential key eye-witnesses were either dead or untraceable, leading to irretrievable prejudice against the defendant.

The Supreme Court cited two overlapping strands which can be found in the jurisprudence.

The first was that contained within O’Domhnaill v. Merrick I.R. 151, which This lays emphasis on the inherent duty of the courts, arising from the Constitution itself, to put an end to what are termed “stale claims” in order to ensure the effective administration of justice, and basic fairness of procedures.

The other was contained within Primor Plc. v. Stokes Kennedy Crowley 2 I.R. 459, which finds that where there is inordinate and inexcusable delay, and demonstrable and irretrievable prejudice to the respondents in the balance of justice test, the proceedings should be dismissed.

It was also noted that there had been a further delay between the High Court and Appeal cases, and that no motion to dismiss the claim was brought until 2010.

While the State might be criticised for this, the Court found that the primary duty lay on the appellant.

Concluding, the Court found that: “Ultimately, the Court can ask itself one simple question, would it be fair that this case should go on, now, some 35 years after what were said to be the precipitating events, where there is inordinate and inexcusable delay, where the balance of justice tilts in favour of the respondent, where, despite efforts, the respondents have been unable to obtain any relevant evidence or witnesses? The answer can only be no.”

Thus, the appeal was dismissed.

  • by Rachel Killean for Irish Legal News