by Fergal Mullins March-24-2020 in Healthcare Law, Litigation & Dispute Resolution

The recent High Court decision in the case of Ahearne v O’Sullivan1 serves as a cautionary tale to plaintiffs of the perils associated with delaying in both the commencement and prosecution of a personal injury claim. The decision also provides some comfort to defendants whose ability to defend proceedings may be prejudiced as a result of delay on the part of a plaintiff.

In the Ahearne case, the personal injury proceedings were ultimately dismissed on the basis of inordinate and inexcusable delay on the part of the Plaintiff. The key aspects of the decision, together with the import for personal injuries litigators generally are considered below.


1. Background- Ahearne v O’Sullivan

The Plaintiff in question sought damages arising out of a hip replacement operation performed in August 1995, requiring the implantation of a hip device manufactured by Depuy. The Plaintiff alleged that the hip device was defective, in accordance with the Liability for Defective Products Act 1991, and that this defect resulted in the Plaintiff having to undergo several further operations on his right hip on dates between 2001 and 2006.

Proceedings were issued against both the Orthopaedic Surgeon, who performed the initial and subsequent operations, and also against the manufacturers and suppliers of the device.

The Plaintiff requested a copy of his medical records in November 2008 which on review, he contended, revealed a letter acknowledging the defective nature of the prosthetic hip. Consequently, the Plaintiff obtained PIAB authorisation to initiate proceedings in November 2010, and proceedings were issued in February 2011.


2. Delay – The Factors Considered

When the matter was ultimately considered by the High Court, Mr Justice Simons considered an application to dismiss proceedings on the grounds of inordinate and inexcusable delay. In so doing, Mr Justice Simons considered the applicable principles, as set out in the Supreme Court judgment in Primor 2 which are as follows:

  1. Whether there was inordinate delay;
  2. Whether the delay was inexcusable; and
  3. If the first two questions are answered in the affirmative, whether the balance of justice is in favour of or against allowing the case to proceed


i. Inordinate Delay

In considering the delay in the particular proceedings, the Court noted that proceedings were not instituted until some 15 years after the alleged negligence and that the matter was not set down for trial for nine years after proceedings were issued. The Court affirmed that delay with regard to both the commencement and prosecution of the claim warranted consideration and was ultimately satisfied that the delay was inordinate, in the circumstances.


ii. Inexcusable Delay

The decision in Millerick v Minister for Finance3 was referenced to support the Court’s view that where proceedings have been issued in a tardy fashion, a plaintiff is under an obligation to pursue proceedings expeditiously.

In the instant circumstances, the Court noted a failure in this regard, illustrated by the fact no substantive step was taken by the Plaintiff to progress matters in almost five years, running from September 2012 to July 2017. In considering this particular period of inaction, the submission by the Plaintiff that a period of several years was required to obtain expert reports did not find favour with the Court, who ultimately found the delay to be inexcusable.


iii. Balance of Justice

Having found the delay on the part of the Plaintiff to be both inordinate and inexcusable, it fell to the Court to consider whether the ‘balance of justice’ lay in favour of or against permitting proceedings to progress to a full trial. In so considering, the Primor principles were applied.

Of note, in considering where the ‘balance of justice’ lay, the Court was satisfied that the failure of two Defendants to deliver a Defence on time did not amount to acquiescence on their part. The Court also considered the potential reputational damage to the Defendant Orthopaedic Surgeon, given the very serious nature of the allegations levelled against him, including allegations of deceit and concealment.  

Ultimately, the Court was satisfied that the balance of justice fell on the side of dismissing the proceedings, taking into account, amongst other things, the surgeon’s right to a good name.


3. Alternative Jurisprudence – the O’Domhnaill Test

In coming to this conclusion, the Court also considered the overlapping but separate jurisdiction to dismiss proceedings first considered by the Supreme Court in O’Domhnaill v Merrick4. In so doing, the Court noted that both strands of jurisprudence, Primor & O’Domhnaill, are open to a Defendant in such circumstances.

Whilst the Primor test requires inexcusable delay on the part of the Plaintiff to be established, ‘culpable delay’ on the part of the Plaintiff under the O’Domhnaill test does not need to be proven. To satisfy the O’Domhnaill test however a higher degree of prejudice must be established, such that there is a real risk of an unfair trial or unjust result.

The Court noted two principal issues required its assessment. Firstly, whether the hip device was defective, pursuant to the Liability for Defective Products Act 1991. Secondly, whether the Orthopaedic Surgeon had become aware that the hip device was defective but had concealed this knowledge from the injured party. In respect of both these issues, the Court held that it could not determine them twenty-five years later without there being a real and serious risk of an unfair trial.



Having considered the criteria outlined in both the O’Domhnaill and Primor cases, an order dismissing the proceedings was granted.

The decision serves as a stark warning to Plaintiffs that delay both in the context of commencing and prosecuting a personal injuries action may result in dismissal. From a Defendant’s perspective, the decision in Ahearne v O’Sullivan confirms two overlapping but distinct avenues available when seeking dismissal of proceedings on the grounds of delay.

Hayes acts in all aspects of Healthcare disputes and has detailed knowledge and experience in dealing with all issues that can arise during the disputes process. Should you have any concerns regarding any of the issues raised in the above article please do not hesitate to contact Fergal Mullins or any member of our Healthcare team.


1 Ahearne v O’Sullivan [2020] IEHC 46

2 Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459

3 Millerick v Minister for Finance [2016] IECA 206

O’Domhnaill v Merrick [1984] I.R. 151

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