High Court: Medical negligence proceedings struck out after six-year delay in particularising the claim

About this case:

• Citation:
  [2022] IEHC 132
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Although the proceedings were dismissed based on the jurisdiction of Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, it was also held that the proceedings could be dismissed on several other grounds, including non-compliance with the Civil liability and Courts Act 2004 and due to abuse of process.

Background

In May 2014, the plaintiff underwent an angiogram and angioplasty at the Mater Misericordiae University Hospital Dublin. The plaintiff later suffered pain in his leg and, in June 2014, the remnant of an angioplasty balloon and catheter were found in his femoral artery. The plaintiff underwent two surgeries which resulted in an above-knee amputation.

In March 2016, the plaintiff issued a personal injuries summons in which the sole named defendant was the Health Service Executive. The summons was issued as a protective writ to avoid the plaintiff being caught by the statute of limitations. Accordingly, no particulars of negligence were outlined in the summons and the summons had not been issued based on expert reports.

The summons was served on the HSE in February 2017. Subsequently, in April 2017, the solicitor acting on behalf of the Hospital raised several objections to the claim. It was explained that the proper defendant was the Mater Hospital and not the HSE, as the Executive did not own or manage the hospital.

The correspondence also sought to confirm as a matter of urgency whether full and detailed particulars would be forthcoming on the basis of expert opinion. The plaintiff’s solicitor did not respond to this letter or to any follow up letters from the Hospital’s solicitors. The proceedings stalled and no detailed particulars or expert reports were ever provided to the defendant.

Ultimately, the hospital’s solicitors came on record for the HSE and issued a motion seeking to dismiss the proceedings. The hospital argued, inter alia, that the plaintiff had failed to comply with the 2004 Act by not providing sufficient particulars of the claim and that the proceedings were an abuse of process. Dismissal of the proceedings was also sought on the grounds of inordinate and inexcusable delay.

High Court

The court began by outlining the well-established principles in Primor and O’Domhnaill v. Merrick [1984] I.R. 151. It was noted that, under the Primor jurisprudence, once inordinate and inexcusable delay had been proven, an applicant was only required to show that the balance of justice required the proceedings to be dismissed. Under O’Domhnaill, an applicant had to establish that prejudice arose which was likely to lead to a real risk of an unfair trial, which was a higher standard than under Primor.

The court applied the Primor test to the case and held that the delay was inordinate. Although the proceedings were served within time, no expert report had been secured and no proper particulars of the case had been provided. The case had stalled at the first stage of litigation, which was almost six years since the case was initiated. As such, the delay was inordinate.

Further, it was held that the delay was inexcusable. The court noted that the plaintiff’s solicitors had approached experts to produce reports in 2017, 2018 and 2020. However, the experts had either not been able to provide reports or the plaintiff was unable to pay for them.

The court held that there were lengthy periods of inactivity from the plaintiff’s solicitors in seeking to secure the reports, including a 13-month delay in following up on a request to a certain hospital. Additionally, there was no evidence that any action had been taken since March 2020. The court rejected the submission that the Covid-19 pandemic had prevented the matter progressing.

The court considered Gallagher v. Letterkenny General Hospital [2019] IECA 156 and held that a delay in obtaining expert reports, even for financial reasons, was not a valid excuse for delay. Further, the pandemic did not hinder the case because legal services were essential services during the relevant periods. In any event, matters could have been progressed by the solicitor working from home.

The court turned to consider whether the balance of justice favoured dismissing the proceedings. The court noted that a wide range of factors had to be considered. First, it was held that the defendant had not acceded or contributed to the delay. The position adopted by the HSE was reasonable from the outset, the court held.

The court also had regard to the legislative imperative to fully particularise a case under the 2004 Act. Under the rules for service of proceedings, a defendant to a medical negligence action should have full particulars of the case against them within three years. This was very important in a context of professional negligence allegations, where a professional doctor’s reputation could be damaged and where their insurance premiums could rise.

While it was acceptable to issue a protective writ in medical negligence actions where no expert reports were available, it was necessary for a plaintiff to obtain those reports with expedition (Murphy v. Health Service Executive [2021] IECA 3). While a court might show some indulgence to a plaintiff for short delays in providing full particulars, the delay in this case did not merit such indulgence.

Having regard to the inordinate and inexcusable delay, it would be unfair for the Hospital to continue defending the vague and unsubstantiated claims. The delay in this case had prejudiced the Hospital and the named consultant in several ways, including potentially pursuing third party proceedings against the balloon manufacturer and the fading of memories over time. Similarly, the delay may affect a court’s ability to discern if the practice followed in the procedure departed from a general approved practice at the time (Dunne v. National Maternity Hospital [1989] I.R. 91).

The loss of the potential case for the plaintiff did not trump the countervailing rights of the defendant, the court held. A laissez faire attitude to litigation could not be tolerated (Sweeney v. Keating [2019] IECA 43). The balance of justice justified the case being dismissed.

Conclusion

The court dismissed the proceedings based on the Primor test. Additionally, the court also considered the alternative grounds to dismiss the proceedings and held that the claim could be dismissed for failure to provide particulars under the 2004 Act. Further, it was held that the proceedings could be dismissed due to abuse of process for failing to provide an evidential basis of the claim and that no reasonable cause of action had been disclosed against the HSE.