by Katie Nugent May-22-2023 in Healthcare Law
The High Court recently considered the grounds under which a personal injuries claim can be dismissed for inordinate and inexcusable delay. The decisions of Sheehan v Cork City Council (2023) IEHC 46 and Sneyd v Stripes Support Services Limited trading as Kammac Support (2023) IEHC 68 involve a careful consideration of the Primor principles as set down in Primor plc v Stokes Kennedy Crowley (1996) 2 IR 459 and examine the factors which a court ought to consider in dealing with such applications.
The leading judgment in this area remains that of the Supreme Court in Primor plc v Stokes Kennedy Crowley (1996) 2 IR 459 and following this a court must consider the following three issues in determining such applications:
1) Has there been inordinate delay;
2) Has the delay been inexcusable; and
3) If the answer to the first two questions is in the affirmative, it then becomes necessary to consider whether the balance of justice is in favour of or against allowing the case to proceed
Sheehan v Cork County Council (2023) IEHC 46
This case involved a claim by an employee alleging emotional injury arising from a ‘flawed’ disciplinary investigation in 2006-2008.
Mr Justice Simons noted that the leading judgment remained that of the Supreme Court in Primor plc v Stokes Kennedy Crowley (1996) 2 IR 459.
He referred to the comments in Sweeney v Keating (2019) IECA 43 where it was noted that ‘a laissez-faire attitude to the progress of the litigation cannot be tolerated given that delay may constitute a violation of Art.6 ECHR rights.’
The court also took into consideration the recent comments in Gibbons v N6 (Construction) Limited (2022) IECA 112 where it was noted that ‘while the fundamental principles to be applied have not changed since Primor, the weight to be attached to the various factors relevant to the balance of justice between the parties has been recalibrated to take account of the court’s obligations to ensure that litigation is progressed to a conclusion with reasonable expedition.’
The court also referred to another recent decision of the Court of Appeal in Cave Projects Limited v Kelly (2022) IECA 245 where Collins J reiterated that an order dismissing proceedings should only be made in circumstances where there has been significant delay, and where, as a consequence of that delay, the court is satisfied that the balance of justice is clearly against allowing the claim to proceed.
In considering the facts of this particular case, the court found that there had been inordinate delay in the prosecution of the proceedings since at least October 2013. It was noted that at that stage the pleadings had closed and the plaintiff had taken no steps to set the matter down for trial. It was noted that a delay of some 8 years is inordinate in the context of a personal injuries action.
The court then considered whether the delay was inexcusable and noted that the plaintiff had not sought to justify the delay. The plaintiff had conceded on affidavit that the delay was both inordinate and inexcusable. The plaintiff’s solicitor was unable to get instructions from the plaintiff since 2015. The solicitor had warned the plaintiff of the risk that the defendant would seek to strike out the proceedings for want of prosecution from February 2020 onwards.
Given the findings that there had been inordinate and inexcusable delay in the prosecution of the proceedings, Simons J then considered whether the balance of justice was in favour of or against allowing the proceedings to go to full trial.
The proceedings were dismissed on the grounds of inordinate and inexcusable delay and it was found that the balance of justice lay in favour of the dismissal of the proceedings. It was noted that the operative delay had compromised the capacity of the court to adjudicate fairly on the personal injuries action. In considering this, it noted that this case would have considered matters which arose between 2006 and 2008 and would involve the hearing of oral evidence.
Sneyd v Stripes Support Services Limited trading as Kammac Support (2023) IEHC 68
In this case, the plaintiff was claiming for a repetitive strain injury which became manifest over time due to the alleged conditions in which he was required to work. The plaintiff had issued proceedings on 12 December 2013 and pleadings had closed with the delivery of the defence of the first defendant on 17 June 2015.
The court noted that the principles which the courts must apply when considering an application to strike out a plaintiff’s action on the grounds of delay and want of prosecution are as set out in Primor PLC v Stokes Kennedy Crowley (1996) 2 IR 459. It was noted that since then there have been multiple decisions applying those principles to various factual situations.
The court referred to the summary of the relevant principles as set down in Cave projects Limited v Gilhooley & others (2022) IECA 245 and, applying those principles, came to the conclusion that the defendants were not entitled to the orders striking out the plaintiff’s action against them. The court noted that while the delay was inordinate, it was not inexcusable. The court noted that the plaintiff was pursuing a cause of action that was of some complexity on both the liability and causation fronts. The court also found that at no stage did the plaintiff’s solicitor do nothing. It was also accepted that the plaintiff’s solicitor did the best he could in the absence of a solicitor who had left employment with the firm and that following the various lockdowns and restrictions within the public health system, it was reasonable to expect delays in obtaining copies of the plaintiff’s records and making discovery at that time.
The court also noted that the defendants had complained about the delay in the period of 2016 to 2021 but that it was not possible to set down witness actions from March 2020 to June/July 2021 during this time due to the Covid 19 pandemic.
The court found that the delay was excusable and in the circumstances, it was not necessary to consider the third element of the Primor test. It was stated that the court was satisfied that the balance of justice favoured allowing the action to proceed and that there would be no real prejudice to the defendants in requiring them to deal with the plaintiff’s action where they were aware of the nature of the claim early on. A joint engineering inspection was carried out in September 2014 and the defendants had not pointed to any specific prejudice as a result of the delay on the part of the plaintiff. It was also noted that this was not an oral evidence case where witnesses will be asked to recall any specific event or conversation. It was also noted that there was no allegation that any relevant documentary evidence was no longer available.
Conclusion
These recent decisions suggest that the outcome of such applications will still depend on the facts of each case and each will be dealt with on a case by case basis. The case law suggests that an important consideration for the court will be whether oral evidence may be required or whether documentary evidence or key witnesses are no longer available. The onus remains on the defendant to establish that there is a substantial risk of an unfair trial if the proceedings continue where there has been delay and to establish that all three limbs of the Primor test have been met. Collins J in Cave Projects Limited v Gilhooley and others (2022) IECA 245 noted that “the culture of endless indulgence of delay on the part of the plaintiff has passed” and in that case, it was also noted that ‘the courts must be astute to ensure that proceedings are not dismissed unless, on a careful assessment of the relevant facts and circumstances, it is clear that permitting the claim to proceed would result in some real and tangible injustice to the defendant.’ The case law would also suggest that any delay on the part of the defendants will weigh against the dismissal of an action and they also have a responsibility to ensure a timely progression of the litigation.
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About the Author
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.