by David Smith June-20-2022 in Healthcare Law

The High Court recently examined the grounds under which a personal injuries claim can be dismissed for inordinate and inexcusable delay. The case of Patrick Rooney (“Plaintiff”) v Health Service Executive (“Defendant”) [2022] IEHC 132 which were medical negligence proceedings were struck out following a six-year delay by the plaintiff in particularising his claim and a failure to progress the proceedings.


The plaintiff underwent an angiogram and angioplasty surgery in May 2014 at the Mater Misericordiae University Hospital. The plaintiff alleged that following the treatment, the remnant of the angioplasty balloon and catheter remained in his leg, and he subsequently underwent two further surgeries which resulted in both a below and above knee amputations.

Procedural position

The plaintiff issued proceedings by way of Personal Injuries Summons on 10 March 2016 and the Health Service Executive (“HSE”) was named as the sole defendant in the proceedings. The summons was served on the HSE on 02 February 2017. However, solicitors for the Mater Hospital objected to this and wrote to the plaintiff’s solicitor flagging that the HSE was not the correct defendant in these proceedings as it was not responsible for the operation of the hospital.

Solicitors for the hospital came on record for the HSE and wrote to the plaintiff’s solicitors in April 2017 seeking full and detailed particulars of the plaintiff’s claim in circumstances where the summons was issued without the benefit of an independent expert report on a protective basis and no details of the negligence had been pleaded. Further, they wrote to the plaintiff’s solicitors on a number of occasions, however, no substantive reply was ever received.

The defendant subsequently issued a motion in February 2020 seeking to dismiss the plaintiff’s claim on the grounds that it was an abuse of process and there was inordinate and inexcusable delay on the part of the plaintiff. This motion was then adjourned at the request of the plaintiff’s solicitor and thereafter again due to public health measures in place at the time. The motion was ultimately struck out for non-attendance in September 2020. Solicitors for the defendant issued a second motion on similar terms in March 2021.

High Court decision

Mr Justice Simons applied the test set out in Primor plc v Stokes Kennedy Crowley (1996) to the facts of this case which is as follows: -

  1. Whether the party’s delay can be considered inordinate, having regard to the nature of proceedings and all of the relevant circumstances.
  2. If the delay can be considered inordinate, whether this delay can be excused.
  3. If the above two steps apply, then the court must consider whether the balance of justice would favour the dismissal of proceedings. In reaching a decision, the court must have regard to all of the relevant circumstances such as delay or acquiescence on the part of the defendant.

In applying the Primor test to the facts of this case, Mr Justice Simons found that there had been inordinate and inexcusable delay on the part of the plaintiff for the following reasons: -

  1. There was a failure to provide full and detailed particulars of the claim as required by the Civil Liability and Courts Act 2004.
  2. A continued failure to obtain an independent expert report to support the plaintiff’s allegations of negligence.
  3. There was inordinate and inexcusable delay on the part of the plaintiff and his solicitors in prosecuting the proceedings, and;
  4. No reasonable cause of action had been disclosed against the HSE.

In reaching his decision, Mr Justice Simons held that there had been inordinate delay as the alleged negligence occurred in 2014 and proceedings issued in 2016 and there had been a significant delay in progressing the claim and lengthy periods of inactivity on the part of the plaintiff’s solicitor. Mr Justice Simons found that it was in the interests of justice to dismiss this case for a failure to comply with the statutory obligation under the Civil Liability and Courts Act 2004 to particularise personal injuries claims and that the ongoing delay was unreasonable and the continued maintenance of proceedings without such a report had now become an abuse of process.

This is an important decision which provides legal practitioners with further insight into the courts application of the criteria for dismissing legal proceedings for want of prosecution. It should be remembered however, that the onus remains on the defendant in medical negligence claims to satisfy the third limb of the Primor test and establish that on the balance of probabilities there is real and substantial risk of an unfair trial or unjust result if proceedings continue where there has been delay. It is clear from recent decisions in this area that they are decided very much on a case-by-case basis and whether or not a claim will be struck out on the ground of inordinate and inexcusable delay depends on the facts of each particular case.

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