High Court: Seven year wait for Supreme Court appeal was primary reason for delay in professional negligence proceedings

About this case:

• Judgment:
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Finding that the main reason for the delay in the delivery of the Supreme Court, and accepting that the plaintiff was correct to renew awaiting the report of an expert solicitor, Ms Justice Baker said that the reasons for delay could not be blamed on either party.

The 2003 Proceedings

Sweeney McGann Solicitors acted as solicitors for Mr Patrick McDonagh in proceedings in 2003 relating to a leak of petrol at a Service Station in Limerick.

In the High Court in October 2007, liability in respect of the claim was apportioned 60% against Mr McDonagh and 40% against that plaintiff

In an appeal to the Supreme Court, the findings of the High Court were upheld. Notably, that judgment was not delivered until March 2015.

New solicitors instructed

During the currency of the appeal process, in correspondence between the Mr. McDonagh and the defendants, Mr McDonagh expressed dissatisfaction with the manner in which the 2003 proceedings had been conducted.

Thereafter new solicitors were instructed, receiving the papers relating to the 2003 proceedings in October 2012.

In July 2014, the solicitors for Mr McDonagh sought a report from an independent solicitor regarding a possible negligence claim against the Sweeney-McGann.

In November 2014, Mr McDonagh issued a plenary summons initiating professional negligence action against Sweeney-McGann

The expert solicitor sought additional papers immediately upon receiving his instructions and the relevant papers were requested from Sweeney-McGann, who did not furnish those papers until 24th June 2015.

In November 2015, the plenary summons was renewed by order of the Master of the High Court on the day before it expired.

The ground given for the renewal of the summons was that an expert opinion was awaited.

In the High Court, Sweeney-McGann made an application pursuant to O. 8, r. 2 of the Rules of the Superior Courts to set aside the order renewing the plenary summons.

Good reason to renew the summons

It was established in Bingham v. Crowley & Ors. IEHC 453 and Monahan v. Byrne IECA 10 that application under O.8, r.2 is a de novo hearing and may engage a consideration of all of the facts, and not just those before Master of the High Court on the renewal application

Chambers v. Kenefick IEHC 402, 3 I.R. 526 15 described the exercise to be engaged by the court.

Justice Baker explained that the primary reason given for delay in service and the basis of Mr McDonagh’s application to renew was the absence of a clear supportive expert report.

Considering Connolly v Casey 1 I.R. 345, Justice Baker stated that obtaining a sufficient expert report prior to professional negligence litigation was regarded as appropriate, and not merely good practice. As such, “the absence of an expert report in a professional negligence case will often be a starting point for the analysis of a justifying reason”, and it was accepted in Bingham v. Crowley & Ors. that the absence of an appropriate expert report may in certain circumstances be a good reason for not serving a plenary summons pending receipt of such a report.

As per Creevy v. Barry-Kinsella & Ors. IEHC 100, the Court must also consider whether the party had sought the expert report in a reasonably timely manner.

On the facts of the present case, Justice Baker was satisfied that “it was correct and reasonable” for Mr McDonagh to delay the service of the proceedings until he had a clear view from the expert solicitor. Further, “the proceedings were served with expedition once an expert view on liability was available”. As such, Justice Baker accepted that the delay in the completion of the expert solicitor’s report was “not of his making”, nor could it be levied against Mr McDonagh having regard to the circumstances outlined the eight affidavits sworn for the hearing.

Justice Baker was also satisfied that there was sufficient warning of the intention to sue, noting that Sweeney-McGann had a clearly responded to a perceived threat of litigation as early as June 2012, and that “nothing that occurred thereafter be read as a representation that was not considering litigation”.

“After 2014, it must have been quite clear to the defendants that the request for files… was made with litigation in mind”.

Refusing to make the order setting aside the order for the renewal of the summons, Justice Baker said that the delay in the conclusion of the 2003 proceedings “was the primary reason for the delay and one for which neither party may be blamed”.