by David Harris , Holly Billings March-21-2025 in Healthcare Law
The High Court imposes a litigation restriction Order upon a Plaintiff and his mother but refuses to dismiss clinical negligence proceedings in A (A Person with Disabilities) suing by his mother and Next Friend, AA v HSE and Cork University Maternity Hospital [2024] IEHC 747
Introduction
The High Court delivered judgment upon an application brought by the HSE and a regional Maternity Hospital to strike out a clinical negligence claim on the grounds that it was “bound to fail” due to the absence of expert medical evidence to support the bringing of the proceedings. Separately, the Defendants sought a litigation restriction order against the Plaintiff (“A”) and the Next Friend (“Ms AA”) in light of the multiple claims which Ms AA had brought in relation to the medical care provided to her son during and shortly after his birth.
Factual Background
“A” was 21 years of age at the date of judgment and was represented by his mother as a lay litigant who had brought some seven previous legal proceedings arising from alleged clinical negligence associated with his extremely premature birth at 24 weeks gestation. “A” developed sepsis in the early neonatal period and contracted MRSA. Parts of his left foot were ultimately removed and it was alleged the infection caused brain injuries and a hearing impairment. “A” was subsequently diagnosed with autism and at a later point allegedly developed a depressive disorder.
Motion to dismiss proceedings
The Defendants brought a motion to dismiss the proceedings upon the basis that the claim disclosed no cause of action, was bound to fail and/or constituted an abuse of process. This application was largely based upon the absence of medical evidence to support the bringing of the proceedings. Whilst expert reports had been obtained on behalf of A which identified potential breaches of duty on the part of the Defendants, it was contended that such reports did not provide evidence of causation or that the particular breaches of duty alleged had caused the specific injuries which were the subject of A’s claim. In these circumstances, Ms Justice Hyland adjourned the application to provide Ms AA with the opportunity to obtain additional expert evidence to address the lack of evidence of causation.
Additional expert evidence was adduced on behalf of A at a resumed hearing and whilst Hyland J had considerable reservations about the distinct lack of clarity within the further expert report, particularly in relation to causation, she accepted that the further evidence “just about meet the threshold required” of demonstrating there was a stateable case of professional negligence. Her Honour described the evidentiary position in this regard as being “extremely borderline” but decided to refuse the Defendant’s application to dismiss the claim.
Litigation Restriction Order
The Defendants also sought a litigation restriction order (“LRO”) to restrain A and Ms AA from issuing any further proceedings against the Defendants arising from the medical treatment provided to A subsequent to his birth. In this regard, reliance was placed upon the history of repeated claims which had been brought over many years which essentially sought to litigate the same issues in relation to the care provided to A after his extremely premature birth.
In her judgment, Ms Justice Hyland acknowledged the important individual right to have access to the Courts but stated that this right was not absolute and was required to be balanced with public interest considerations and with the need to protect defendants from repeated and baseless claims. The Court found that there had been repeated attempts over many years to litigate the events of A’s medical care after his birth despite the fact that Ms AA did not have sufficient medical evidence to bring many of those proceedings and when she had been told by a solicitor instructed on her behalf that the medical evidence obtained did not support the claims of negligence or establish causation in relation to A’s medical complaints.
The High Court took into account the huge burden which had been placed upon the Defendants in terms of legal costs and in the time occupied by their employees and by independent experts in dealing with the duplication of allegations raised and the multiplicity of legal proceedings that had been brought. Regard was also had to the principle of proportionality and that the right of access to the Courts must be balanced with the private rights of Defendants to be protected from the stress of harassment and expense of excessive and vexatious litigation. The importance of the finality of litigation and the Court’s obligation to use its limited resources prudently were also highlighted as public interest considerations.
Having balanced the respective rights of the parties, her Honour decided to make the LRO sought to prevent the bringing of any further proceedings against the Defendants without the prior permission of the President of the High Court. In making this order, the learned Judge noted that she was not denying the right of access to the Courts but rather was regulating it.
Key observations from Judgment
- The requirement for expert evidence in clinical negligence proceedings
Whilst it is well established that an expert “breach of duty” report is required to support the bringing of a professional negligence claim, the judgment of Ms Justice Hyland also accepted that an expert report which supported a finding of causation was required in the clinical negligence claim which was before the Court. The seminal Supreme Court’s decision in Cooke v Cronin and Neary [1999] IESC 54 held that there must be a reasonable evidential basis for a professional negligence claim before it can be properly brought. As causation is an essential element in proving negligence, it is understandable that an expert causation report may often be required to provide proper grounds to bring a clinical negligence claim in addition to a breach of duty report. Most Plaintiffs in a clinical negligence claim have sought medical treatment in respect of an adverse health condition and expert evidence will often be required to establish that the Plaintiff’s negligent treatment has made the Plaintiff’s health outcome worse than it would otherwise have been. In A, expert evidence was required to demonstrate that the Plaintiff’s injuries were not solely attributable to his extreme prematurity.
There will be cases where causation is purely a factual question so that expert evidence on causation may not be required in such claims to demonstrate that there is a statable case. Where a surgeon removes an incorrect limb or other bodily organ would be an obvious example. However, in more complex cases as in A’s claim, expert causation evidence may well be necessary to show that there were reasonable grounds to bring a clinical negligence action.
2. The use of litigation restriction order
The granting of a litigation restriction order in A was somewhat unusual as the Court accepted that the multiple proceedings brought by Ms AA had not been commenced with any vexatious intent. As the person the subject of a litigation restriction order is usually a vexatious litigant, the High Court emphasised in this case that Ms AA believes that “she is acting in the best interests of A, that her actions are motivated by her wish to achieve what she perceives as justice for him, and that there is no bad faith on her part.”
Accordingly, an applicant for a litigation restriction order does not have to establish that the respondent is a vexatious litigant or that the relevant litigation has been brought to harass, annoy or for some other abusive purpose. A genuine but misconceived serial litigant may reach the required threshold to justify the extreme measure of imposing a litigation restriction order.
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About the Author
David Harris
David has practised extensively in Ireland, the United Kingdom and Australia in healthcare law, specialising in both high value medical negligence claims and in regulatory proceedings. He has substantial experience in both defending and prosecuting professional negligence claims and product liability actions.
Holly Billings
Holly is a solicitor in the Healthcare Team at Hayes solicitors. Holly advises in the defence of medical claims taken against public hospitals and private clinicians.
Holly joined Hayes solicitors in 2022 as a trainee solicitor and qualified in 2025.