Allen v Helsinn Birex Pharmaceuticals Ltd and Others; Thomas v Helsinn Birex Pharmaceuticals Ltd and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Jackson |
| Judgment Date | 30 November 2023 |
| Neutral Citation | [2023] IEHC 684 |
| Court | High Court |
| Docket Number | Record No. 2009/10191P |
[2023] IEHC 684
Record No. 2009/10191P
Record No. 2009/10437P
THE HIGH COURT
Negligence – Personal injuries – Want of prosecution – Defendants seeking an order dismissing the plaintiffs’ claims against the defendants for want of prosecution – Whether there was inordinate and inexcusable delay
Facts: The plaintiffs, Ms Allen and Ms Thomas, in both sets of proceedings, alleged that the first, second and third defendants, Helsinn Birex Pharmaceuticals Ltd, Helsinn Birex Therapeutics Ltd and Ergha Healthcare Ltd (the applicants), acted negligently and/or in breach of duty in or about the manufacture of a drug, Aulin/Nimesulide, in consequence of which, it was alleged, the plaintiffs suffered personal injuries. The applicants applied to the High Court seeking the following reliefs: (1) an order pursuant to the provisions of Order 122 of the Rules of the Superior Courts 1986 dismissing the plaintiffs’ claims against the applicants for want of prosecution; and (2) furthermore and/or in the alternative, an order dismissing the plaintiffs’ claims against the applicants on the grounds of inordinate and inexcusable delay.
Held by Jackson J that, having regard to the length of time which had elapsed since there was a proceeding in these cases (the motions were issued on 21st March 2022 at which time there had been no proceeding since 2013), she was of the view that there had clearly been an inordinate delay. She noted that it was common case that the applicants did not agree to the progress of these proceedings and other proceedings in a particular order or in a particular manner. She noted that no court directions were sought or made in that regard. In those circumstances, she was asked to hold a delay to be excusable due to the fact that one of the parties unilaterally decided to advance one set of proceedings in advance of others. She held that there was no relationship between these proceedings save that they involved the same product. She found that this was not a basis upon which she could hold a delay to be excusable. She held that mediation of disputes is to be supported and encouraged. On the facts of this case where the relevant letter was not received (and it was conceded at the hearing of the motions that no such letter was sent), she found that this was not a basis upon which she could hold a delay to be excusable. She found that settlement discussions as a general rule (absent legislative imprimatur or court direction) do not render a delay excusable. She noted that certain instances where an acquiescence argument might arise can be envisaged but this was not the position in this instance. She held that the inexcusable nature of the delay in the case, and the incomprehensibility of such, was heightened by the fact that the plaintiffs received warning letters in respect of an application such as that which was before her on two separate occasions, first in 2018 and then in 2021. She concluded that the delay in the cases was both inordinate and inexcusable. She held that it was clear from the authorities that general prejudice may suffice to tilt the balance of justice in favour of litigants such as the applicants but as stated by Collins J in Cave Projects Ltd v Kelly [2022] IECA 245, prejudice is not to be presumed. Having considered the evidence of prejudice to the applicants which had been presented to Jackson J and balancing this against the undeniable prejudice to the plaintiffs arising from a striking out of their claims, she was unable to conclude that allowing the claims of the plaintiffs to proceed would result in a real and tangible injustice to the applicants.
Jackson J refused the reliefs sought by the applicants.
Applications refused.
JUDGMENT of Ms. Justice Jackson delivered on the 30th day of November, 2023
. The applications before the Court consist of two motions brought by the First, Second and Third named Defendants (‘the Applicants’) in each of the above-entitled proceedings seeking identical reliefs. These are two different proceedings in which there are different Plaintiffs but the same Defendants. The facts in the two cases, while similar, are not identical and the differences will be set out below.
. The reliefs being sought are as follows:
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1. An Order pursuant to the provisions of Order 122 of the Rules of the Superior Courts 1986 dismissing the Plaintiffs' claims against the First, Second and Third Named Defendants (the Applicants herein) for want of prosecution;
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2. Furthermore and/or in the alternative, an Order dismissing the Plaintiffs' claims against the First, Second and Third named Defendants (the Applicants herein) on the grounds of inordinate and inexcusable delay.
. A further substantive relief sought in both motions being “if necessary, a consequential Order dismissing the Eight Defendant's claim for an indemnity/contribution from these Defendants” has been the subject of a Notice of Discontinuance on the part of the First, Second and Third named Defendants.
. In both sets of proceedings, the Plaintiffs allege that the Applicants acted negligently and/or in breach of duty in or about the manufacture of a drug, Aulin/Nimesulide in consequence of which, it is alleged, the Plaintiffs suffered personal injuries.
. In the case of the Plaintiff, CA, it is alleged that she used the drug concerned in or about 2003 (paragraph 36 of the Personal Injuries Summons herein), that “prior to and in or around the time of” such usage she suffered from severe onset jaundice for which she attended her General Practitioner and that she became aware of a potential claim in or about 2008. Proceedings were issued on 12 th November 2009. It should be noted that in the submissions of the applicant Defendants, there is reference to usage of the drug in question by CA considerably prior to 2003 in 1999/2000 as recorded at Reply 1.1 in the Plaintiff's Replies to Notice for Particulars in that case of 28 th August 2013.
. In the case of the Plaintiff, BT, it is alleged that she used the drug concerned in or about 2006 and that she was hospitalised with jaundice and severe acute hepatitis in July 2006. BT asserts that she became aware of a potential claim in or about 2008. Proceedings in this case were issued on 19 th November 2009. It was conceded by the applicant Defendants that pre-proceedings delay was not a major issue in the case of the Plaintiff, BT.
. In terms of the factual backgrounds to the two cases, there is at least one significant difference. In the case of CA, it is alleged that the medication when taken by her was unprescribed but rather was supplied to her by “pharmaceutical company representatives” who, it is alleged, gave samples to her and other nursing staff members in the hospital in which she worked. While it would appear that the representative in question has been identified by CA in Replies to Particulars dated 28 th August 2013 (Reply 1.5), there is no specific reference to this person, her evidence or her availability as a witness in the affidavits filed by either party in the context of the motion in this case. In the case of BT, it is alleged (and would not appear to be substantially disputed) that the medication was taken by the Plaintiff in that case following the prescription of same by her General Practitioner.
. The post-proceedings trajectory of these two cases is largely similar. As stated, the proceedings were instituted in November 2009. Defences were served in August 2011 together with Notices for Particulars. These Particulars were replied to in August 2013 in the CA case and in June 2013 in the BT case. Subsequent to this, there were Notices of Intention to Proceed served, there was correspondence between the parties and there was a without prejudice telephone conversation. The significance of these latter events will be referenced hereinafter. Chronologies in both cases are set out in the Appendices to this judgment.
. Order 122 rule 11 of the Rules of the Superior Courts provides:
“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”
. Two issues arise in this case in the context of this rule:
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1. Has there been two years since the last “proceeding” in these matters?
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2. If the answer to 1. is affirmative, what are the applicable tests in relation to dismissing a claim for want of prosecution?
. The Applicants herein contend that the last “proceeding” in these cases dates back to 2013 being the Replies to Particulars of 28 th August 2013 in the CA case and of 18 th June 2013 in the BT case.
. If there is no...
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