Anne Marie Ryan v Edward “Eddie” Michael O'Donnell, The Gate Lodge Private Clinic, Health Service Executive, Finbar Aidan O'Reilly. Cork Women's Clinic and Bon Secours Health System Company Ltd by Guarantee Trading as Bon Secours Health System Cork

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 16 May 2023
• Neutral Citation: [2023] IEHC 329
• Docket Number: Record No. 2018/8314P

Between

Anne Marie Ryan

Plaintiff

and

Edward “Eddie” Michael O'Donnell, The Gate Lodge Private Clinic, Health Service Executive, Finbar Aidan O'Reilly. Cork Women's Clinic and Bon Secours Health System Company Limited by Guarantee Trading as Bon Secours Health System Cork

Defendants

Between

Martina Brennan

Plaintiff

and

Paul Hughes, Health Service Executive, Ethicon PR Holdings Unlimited Company and Ricard Horgan

Defendants

[2023] IEHC 329

Record No. 2018/8314P

Record No. 2017/10245P

THE HIGH COURT

Clinical negligence – Defective medical products – Consolidation – Plaintiffs seeking to consolidate their proceedings – Whether separate proceedings might give rise to a miscarriage of justice

Facts: The plaintiffs in both cases, Ms Ryan and Ms Brennan, sought damages for personal injuries in what were described by counsel as hybrid proceedings, i.e. proceedings where there was a claim in respect of both clinical negligence and defective medical products. There were separate proceedings in respect of the clinical negligence claim and the defective products claim. Both the plaintiffs sought to consolidate their proceedings so that all issues in relation to the alleged personal injury could be heard in the same set of proceedings. There were two motions to consolidate in two different sets of proceedings, heard together because of the similarity of the issues raised. Ms Ryan’s motion sought to consolidate proceedings entitled Ryan v O’Donnell & Ors, Record No. 2018/8314 P and proceedings entitled Ryan v Ethicon PR Holdings Unlimited Company & Anor, Record No. 2020/5899 P. Ms Brennan’s motion sought to consolidate proceedings entitled Brennan v Paul Hughes & Ors, Record No. 2017/10245 P and proceedings entitled Brennan v Ethicon PR Holdings Unlimited Company, Record No. 2018/9902 P.

Held by the High Court (Hyland J) that in deciding on whether consolidation should be ordered, Order 49, Rule 6 of the Superior Court Rules required her to consider whether there were common issues of fact or law, whether separate proceedings might give rise to confusion or even a miscarriage of justice and whether considerations of expense and convenience dictate consolidation. Hyland J held that where the plaintiffs seeking consolidation claimed that they suffered an injury caused both by the alleged deficiencies in the medical devices implanted and the manner in which they were implanted, the resolution of that claim would potentially necessitate a determination of a number of common questions of both fact and law, including whether the plaintiff was injured, how the injury was incurred, the cause of the injury, interaction between different actors in causing that injury, allocation of liability and assessment of damages. Hyland J held that should the cases remain unconsolidated, those questions would require to be answered on two different occasions by two different courts. To ask a court to determine those questions in the absence of certain of the parties would in Hyland J’s view be to hobble the trial judge in his or her ability to address the case in a complete and fair manner and would give rise to a risk of duplication and possibly conflicting decisions. Hyland J held that one set of proceedings would likely result in a saving of judicial time, and that too was a relevant factor.

Hyland J was satisfied that the application of the principles identified in Duffy v News Group Newspapers Ltd [1992] 2 IR 369 strongly suggested consolidation. Therefore, Hyland J made the orders sought by the plaintiffs.

Orders granted.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 16 May 2023

Summary

1 This judgment concerns two motions to consolidate in two different sets of proceedings, heard together because of the similarity of the issues raised. In short, in both cases the plaintiffs have sought damages for personal injuries in what are described by counsel as hybrid proceedings, i.e. proceedings where there is a claim in respect of both clinical negligence and defective medical products. At present, there are separate proceedings in respect of the clinical negligence claim and the defective products claim. Both the plaintiffs seek to consolidate their proceedings so that all issues in relation to the alleged personal injury can be heard in the same set of proceedings.

2 In deciding on whether consolidation should be ordered, Order 49, Rule 6 of the Superior Court Rules requires me to consider whether there are common issues of fact or law, whether separate proceedings might give rise to confusion or even a miscarriage of justice and whether considerations of expense and convenience dictate consolidation.

3 Here, where the plaintiffs seeking consolidation claim that they suffered an injury caused both by the alleged deficiencies in the medical devices implanted and the manner in which they were implanted, the resolution of that claim will potentially necessitate a determination of a number of common questions of both fact and law, including whether the plaintiff was injured, how the injury was incurred, the cause of the injury, interaction between different actors in causing that injury, allocation of liability and assessment of damages. Should the cases remain unconsolidated, those questions would require to be answered on two different occasions by two different courts. To ask a court to determine these questions in the absence of certain of the parties would in my view be to hobble the trial judge in his or her ability to address the case in a complete and fair manner and would give rise to a risk of duplication and possibly conflicting decisions. One set of proceedings will likely result in a saving of judicial time, and that too is a relevant factor.

4 In those circumstances, I am satisfied that the application of the principles identified in Duffy strongly suggest consolidation and I have therefore made the Orders sought by the plaintiffs.

RYAN

5 The motion seeks to consolidate two sets of proceedings, the first being proceedings entitled Ryan v O'Donnell & Ors, Record No. 2018/8314P (“ Ryan 1”) and the second being proceedings entitled Ryan v Ethicon PR Holdings Unlimited Company & Anor, Record No. 2020/5899P (“ Ryan 2”).

6 The motion was issued in Ryan 1 and the relief sought is an Order consolidating proceedings pursuant to Order 49, Rule 6 of the Superior Court Rules, as well as an Order permitting the plaintiff to issue and file an amended personal injury summons in respect of the newly joined defendants. The latter part of that relief referring to the joinder of defendants seems somewhat misguided given that this is an application to consolidate and not to join defendants. I will hear counsel on the wording of the appropriate Order.

7 Order 49, Rule 6 provides as follows:

“ 6. Causes or matters pending in the High Court may be consolidated by order of the Court on the application of any party and whether or not all the parties consent to the order.”

The approach a court should follow in considering an application to consolidate under Order 49 Rule 6 was identified by the Supreme Court in the case of Duffy v News Group Newspapers Ltd. [1992] 2 IR 369 where McCarthy J. set out the principles to be applied:

“(1) Is there a common question of law or fact of sufficient importance?

(2) Is there a substantial saving of expense or inconvenience?

(3) Is there a likelihood of confusion or miscarriage of justice?”

8 McCarthy J. noted in Duffy that, although the wording of Order 49, Rule 6 was very wide, that did not mean that it was to be applied widely or that a heavy burden did not lie upon those who sought to join or consolidate actions. and that it was a matter of discretion for the Court. Here, for the reasons identified below, I am quite satisfied that “heavy burden” has been discharged by the plaintiff.

Proceedings issued by the plaintiff

9 It is necessary to describe the nature of the two Ryan cases. The plaintiff had a pelvic mesh device inserted at Waterford Regional Hospital on 24 September 2012 in ease of urogynaecological complaints she had been experiencing. In Ryan 1, it is pleaded she was a patient of the first, second and third defendants when a device now known to be a Gynecare TVT Laser Tension-Free Support manufactured by Ethicon PR Holdings Unlimited Company was placed in her by the first defendant. This took place in September 2012. It is further pleaded that in and around July 2015 the plaintiff entered into a contract with the fourth, fifth and/or sixth defendants for the purposes of a second procedure to remedy the injury sustained in the previous procedure and during the course of that procedure, a product of unknown derivation was then inserted in her by the fourth defendant. In the Indorsement of Claim in the personal injury summons of 20 September 2018, it is pleaded that at the time of pleading, the device details had not been provided by the second defendant and the plaintiff awaited confirmation of the contracting party in both procedures and the identity of the supplier of the said devices.

10 At paragraph 12 of the Indorsement, it is pleaded that in September 2012, the first, second and/or third defendants supplied a medical device to the plaintiff on foot of a contract between the parties that was unfit for use and dangerous, as a result of which the plaintiff was exposed to harm. It is pleaded at paragraph 19 that the defendants failed to properly inform the plaintiff of the risks involved in the procedure, failed to ensure the plaintiff was aware of and understood the risks involved in the procedure, provided the plaintiff with a defective product within the meaning of the Liability for Defective Products Act 1991, provided the plaintiff with a medical device that was unfit for use, used materials and/or third party products that were unsound and not fit for purpose within the meaning of the Sale of Goods and...