by Shauna Marron , Katie Nugent July-23-2024 in Healthcare Law
The Court of Appeal, in the case of O’Neill v Birthisle[1] upheld the dismissal of a medical negligence claim where the plaintiff had not obtained an expert report eight years after the claim had issued. Mr Justice Noonan commented that the institution of these proceedings and the perpetuation of same for eight years without any evidential basis was an abuse of process and constitutes the clearest prejudice to the defendant.
Facts of the case:
The plaintiff issued proceedings on 7 December 2015 in relation to a procedure she had carried out during childhood. She claims that from November 2011 onwards she suffered from swelling and pain leading to multiple infections and hospitalisations. The plaintiff underwent a surgical procedure in 2013 which she claimed alleviated her symptoms by the removal of a staple from her leg. The plaintiff claimed that the defendant’s failure to identify the staple was the cause of her symptoms.
The defendant brought a motion to dismiss the claim for want of prosecution, under Order 122 rule 11 of the Rules of the Superior Court and citing inordinate and inexcusable delay on 17 December 2021.
A Notice of Change of Solicitor was served on behalf of the plaintiff on 14 March 2022.
The defendant’s application was that as a result of the lack of detail in the summons, the defendant was unable to investigate the claim and was prejudiced by the passage of time.
The plaintiff’s new solicitor swore an affidavit stating that the plaintiff was relying on her previous solicitors to progress the matter. The affidavit noted that there was an intention or attempt to instruct an expert, but this expert retired in 2020. The plaintiff’s solicitor said that all the medical records for all treatment received by the plaintiff were still available, and that the plaintiff’s understanding was that her previous solicitors were obtaining a report and, as such, her claim should not be struck out. The plaintiff’s solicitor said that every step would be taken to expedite the proceedings if the plaintiff was allowed to continue.
The defendants replied by way of affidavit stating that they believed and were advised that it is an abuse of process to commence a professional negligence action, without first ascertaining that reasonable grounds to do so exist. They referred to the cases where proceedings are issued with a protective writ and noted that this does not apply here. It was further noted that the defendant’s motion had been adjourned on consent for six months to allow the plaintiff to provide updated particulars based on expert evidence. The defendants wrote to the plaintiff on two further occasions seeking an update with no response received.
The plaintiff further replied to this affidavit stating that they were chasing a UK expert, but no response had been received. This affidavit sought a short adjournment. A further replying affidavit from the plaintiff’s solicitor, almost six months later and served immediately prior to the motion, sought a further three to four months for the report to be completed.
High Court:
In the High Court, Mr Justice Heslin reviewed the legal principles in Primor[2] and O’Domhnaill[3]. He noted that witness testimony would be essential based on the summons.
Heslin J referred to Rooney v HSE[4] where the Court referred to the Cooke[5] principles regarding the need for reasonable grounds to commence professional negligence proceedings, the Mangan[6] decision where it was identified that there may be exceptions to this and the practice of issuing a protective writ to protect a plaintiff from falling foul of the two year statute of limitations. This judgment went on to note as per Murphy[7] that ‘It is imperative however, that the requisite report be obtained thereafter with reasonable expedition and depending on the views expressed by the independent expert, it may become necessary to discontinue the proceedings.’
Mr Justice Heslin also noted that the claim was one in which ‘a late start’ was made and that this ‘mandates the plaintiff to proceed without delay.’
In considering the ‘Primor principles’ on delay, Heslin J was satisfied that the delay was both inordinate and inexcusable and with regard to the balance of justice, the judge felt that the absence of a supporting medical report after such a length of time weighed heavily in favour of dismissal. Heslin J was also of the view that the prejudice was sufficient to meet the O Domhnaill test and there was a serious risk that a fair trial would no longer be possible. On this basis, he dismissed the plaintiff’s claim.
Court of Appeal:
Mr Justice Noonan identified two grounds of appeal that were of substance;
- That the High Court was wrong to dismiss the claim when the defendant had failed to put forward any evidence to show it was prejudiced by the delay
- That the trial judge was wrong in holding that the prejudice suffered by the defendant was sufficient to rule that the balance of justice was in favour of the defendant.
Mr Justice Noonan noted that it was over eight years from the commencement of the action and the plaintiff still cannot even show that she has a case let alone the details of same. He commented that the delay was ‘a little short of staggering.’
The Court noted that the plaintiff’s solicitors have commenced proceedings without expert evidence and ‘taken it upon themselves to assume that this was evidence of negligence.’ The Court further noted that if the commencement of proceedings without expert evidence wasn’t sufficient enough evidence of an abuse of process, their perpetuation for a further eight years without a report was an abuse of process.
He accepted the inherently complex nature of clinical negligence claims and the efforts required to secure a qualified expert prepared to take on the case and to establish the basis for an allegation of negligence and causation. He accepted that all of this might not be possible within the two year limitation period and for that reason the convention has developed of issuing ‘protective’ writs pending obtaining a report. He stressed that in such circumstances, it is incumbent on the plaintiff to obtain these reports with reasonable expedition thereafter and that a personal injuries summons even if issued on a protective basis, should give the defendants at least sufficient factual information to enable them to commence an investigation.
Mr Justice Noonan stated that ‘it appears to me it is inappropriate and unprofessional to make specific allegations of negligence, as in the present case, against a defendant where there is no reasonable basis for doing so.’ He notes that the plaintiff bore the onus of proceeding with her case without delay where the case involved a late start. He found it to be remarkable that despite the plaintiff having been represented by three different firms, none of them have managed to obtain an expert report to establish if the plaintiff has a case at all.
Mr Justice Noonan referred to ‘an alarming catalogue of failure and indolence’ and noted that the plaintiff seeks to blame her solicitors for these failures. He went on to state that the ‘plaintiff cannot avoid responsibility for the actions of her solicitors acting on her instructions by seeking to visit the consequences on the defendant….and if the plaintiff’s solicitors failed in their duty to her as their client, it is to them she must look for a remedy.’
He concluded by stating that the delay was both inordinate and inexcusable and he agreed with the trial judge. He described the institution of the proceedings and further the perpetuation of the proceedings for some eight years without any evidential basis as ‘a gross abuse of process’ which constitutes ‘the clearest prejudice to the defendant.’ He found that to suggest that the plaintiff should be afforded further time to get an expert report, which might result in a trial many years later, is to make ‘a mockery of all jurisprudence on delay.’
He found that it was perfectly reasonable to accept the defendant’s evidence that the delay has seriously hampered the defendant’s ability to investigate this claim, and this is a clear and additional source of prejudice. He concluded that the trial judge was correct in finding that the balance of justice leans in favour of dismissal.
Comment:
This case has reinforced the principles set down in Cooke v Cronin and referred to in Rooney that it is well settled law that in order to issue and maintain proceedings such as in the present claim, a plaintiff must be in possession of independent expert evidence in support of their claim. The reasons for this were set out by Judge Hogan in Flynn v Bon Secours Health Systems Limited[8] and are due to ‘the reputational and other implications of such proceedings for the professional involved.’
The case has also reinforced the ‘Primor’ principles and the basis on which a claim will be struck out on grounds of delay.
END
[1] O’Neill v Birthisle [2024] IECA 17
[2] Primor plc v Stokes Kennedy Crowley [1996]2IR 459
[3] O’Domhnaill v Merrick [1984] I.R. 151
[4] [2022] IEHC 132
[5] Cooke v Cronin [1999] IESC 54
[6] Mangan v Dockery [2020] IESC 54
[7] Murphy v HSE [2020] IESC 67
[8] [2014] IEHC 87
Back to Full NewsShare this article:
About the Authors
Shauna Marron
Shauna Marron is an Associate in the Healthcare team at Hayes solicitors. She specialises in the defence of medical and dental negligence claims taken against public hospitals as well as medical and dental practitioners.
Shauna joined Hayes solicitors, in 2017, as a trainee solicitor and qualified in 2019.
Katie Nugent
Katie is an Associate on the Healthcare team at Hayes solicitors.
She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.