About this case:

• Citation:
  [2023] IEHC 374
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

Delivering judgment in the case, Ms Justice Siobhán Phelan held that the delay was inordinate and excusable in the case. In particular, the court stated that the plaintiff’s solicitors did not act with “basic courtesy” in responding to the defendant’s repeated requests for a hearing date. However, it was held that the balance of justice did not favour striking out the proceedings where the matter had been set down for hearing twice in 2020 but was adjourned for good reason. As such, the case was ready to proceed, the court said.

Background

The plaintiff was a former student at Leinster Senior College. In 2010, it was alleged that she had been pushed down a set of stairs by a fellow pupil, causing her injuries to her ankle. The plaintiff issued proceedings against the school in 2012.

The case proceeded with particulars being raised, pleadings exchanged, a third party joined and an order for discovery made in July 2014. Thereafter, the case timeline began to slow down. An application was brought to strike out the proceedings for the plaintiff’s failure to make discovery which was closely followed by a notice of change of solicitor. The original solicitor had “professional difficulties” in dealing with the file and the matter was handled by a connected solicitor rather than being passed on. The original solicitor was subsequently struck off. Discovery was eventually completed in February 2017.

At this time, the plaintiff changed her solicitor who pursued discovery against the defendant. Discovery was not made until June 2019. A notice of intention to proceed and additional particulars of injury were served in June 2019. A hearing date was assigned for 4 February 2020 but was adjourned due to the late delivery of medical reports from the plaintiff. A second hearing date was set for May 2020 but this was adjourned due to the Covid-19 pandemic.

Following the second adjournment, the school’s solicitor wrote 13 letters between July 2020 and October 2021 requesting that the plaintiff set the matter down for hearing. In March 2022, the school outlined that it would apply to dismiss the proceedings as it was 12 years post-event and the plaintiff had failed to respond to requests for a hearing.

The plaintiff’s solicitor served a notice of intention to proceed in January 2023 and, at the motion to dismiss, the court was advised that the matter was ready for a date. In seeking to explain the delay in the case, the plaintiff outlined that she had an unhappy relationship with her legal representation prior to 2017.

She said she had lost her job in March 2020 and had been required to provide significant sums in outlay on the first adjourned hearing in February 2020. As such, it was said that there was a lack of resources for her to have advance the matter to hearing. She stated that her parents intended to sell a property to fund the litigation but this sale fell through on several occasions.

High Court

Ms Justice Phelan began by referring to the well-established legal principles for dismiss a case for want of prosecution. These cases included Gibbons v N6 (Construction) Limited [2022] IECA 112 and Cave Projects Limited v Kelly [2022] IECA 245. There was no dispute that the court was required to consider 1) whether the delay was inordinate, 2) whether the delay was excusable and 3) whether the balance of justice favoured the dismissal of the proceedings.

It was noted that the court could take a wide range of factors into account when assessing the balance of justice and the discretion to dismiss. The hardship of denying a plaintiff access to a trial of the claim must be proportionate and just, the court said.

Applying the law to the facts of the case, the court noted that the plaintiff did not dispute that the delay in the case was inordinate. It was 13 years since the incident, although the court observed that the defendant had contributed to the delay by taking a long period of time to complete discovery. However, the most striking period of delay occurred after the trial was adjourned for the second time in May 2020.

In assessing whether the delay was excusable, it was stated that the two previous aborted hearing dates and the service of a notice of intention to proceed were mitigating factors to the delay post-summer 2020. However, the court was “at a complete loss to understand” why the plaintiff’s solicitors “entirely ignored” the series of letters to set the matter down for hearing.

The court was not satisfied that the plaintiff’s resource issue could operate to excuse the delay in the case in the absence of the “basic courtesy of a response to the defendant’s solicitor’s correspondence”. The lack of a response prompted the reasonable query as to whether the plaintiff was intent on pursuing the proceedings.

Since the delay was inordinate and inexcusable, the court considered the balance of justice. It was held that the claim was for significant personal injury and “enormous prejudice” would be suffered if the claim was dismissed. While the case had not progressed with expedition, the school had contributed to that delay.

There was also no suggestion of specific prejudice arising from witness recall issues or lost documents. The defendant was aware of the incident from the outset which would have allowed it to complete an investigation at the time. Further, discovery had been made which indicated that contemporaneous material existed independent of witness memory.

As such, the court held that any prejudice in the case did not tip the balance of justice in dismissing the proceedings. Equally, in the context of the overall conduct of the proceedings, the final period of delay did not justify an order dismissing the case.

The most significant factors which weighed against dismissal were the two previous hearing dates and the fact that the case was ready to be heard.

Conclusion

The court refused to dismiss the claim for want of prosecution but stated that it was important for no further delay to occur in the case. The court would hear the parties in respect of consequential orders but outlined a preliminary view that the non-response to correspondence over a 20-month period could not be condoned or excused. As such, it was suggested that this would be reflected in any costs order for the application.

Neiser v. Leinster Senior College Limited [2023] IEHC 374