Bingham v Crowley and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 17 December 2008
• Neutral Citation: [2008] IEHC 453
• Court: High Court
• Date: 17 December 2008

[2008] IEHC 453

THE HIGH COURT

[No. 15811 P/2002]

Bingham v Crowley & Ors

BETWEEN

BERNARD BINGHAM AND VIOLA BINGHAM

PLAINTIFFS

AND

MARTIN CROWLEY, TIMOTHY LYNCH, BARRY COSGROVE, JAMES O'RIORDAN, BRIDGET EGAN, JOE WILEY, GERALDINE SWIFT, JOHN LENNON AND DIANE BERGEN

DEFENDANTS

RSC O.8 r2

RSC O.8 r1

RSC O.9 r15

BEHAN v GOVERNOR & CO OF THE BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

O'GRADY v SOUTHERN HEALTH BOARD & TRALEE GENERAL HOSPITAL 2007 2 ILRM 51 2007/49/10368 2007 IEHC 38

CHAMBERS v KENEFICK 2007 3 IR 526 2005 IEHC 402

ALLERGAN PHARMACEUTICALS (IRELAND) LTD v NOEL DEANE ROOFING & CLADDING LTD & ORS UNREP O'SULLIVAN 6.7.2006 2006/2/371 2006 IEHC 215

BAULK v IRISH NATIONAL INSURANCE CO LTD 1969 IR 66

CAVERN SYSTEMS DUBLIN LTD v CLONTARF RESIDENTS ASSOCIATION & DUBLIN CORP 1984 ILRM 24 1983/1/74

CUNNINGHAM v NEARY & ORS 2004 2 ILRM 498 2004/11/2540 2004 IESC 43

ROCHE v CLAYTON & ORS 1998 1 IR 596

CELTIC CERAMICS v INDUSTRIAL DEVELOPMENT AUTHORITY 1993 ILRM 248 1992/10/3185

HOGAN v JONES 1994 1 ILRM 512 1994/4/946

BIRKETT v JAMES 1977 2 AER 801 1978 AC 297 1977 3 WLR 38

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269

PRACTICE AND PROCEDURE

Renewal of summons

Set aside - Multiple renewals of summons - Medical negligence - Claim for damages arising out of death of child -Onus on defendant - Whether onus to adduce new evidence - Fair procedures - Right to make submissions - Discretion - Whether good reason to renew summons - Overall interests of justice - Application not made during currency of previously renewed summons - Definition of currency - Obligation to give effect to meaning of rule - Whether obligation to renew summons if reasonable efforts made to serve summons - Existence of criminal complaint - Ongoing inquest - Necessity to source expert evidence - Absence of warning letter - Absence of link between necessity for evidence and failure to serve summons - Statute of limitations - Justice between parties - Whether necessity to demonstrate actual prejudice - Whether entitlement to bring application subject to time limit - Delay - Behan v Bank of Ireland (Unrep, Morris J, 14/10/1995) and O'Grady v Southern Health Board [2007] 2 ILRM 51 distinguished; Chambers v Kenefick [2005] IEHC 402, [2007] 3 IR 526 and Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing and Cladding Ltd [2006] IEHC 215, (Unrep, O'Sullivan J, 6/7/2006) followed; Baulk v Irish National Insurance Co Ltd [1969] 1 IR 66, Cavern Systems Dublin Ltd v Clontarf Residents Association [1984] ILRM 24, Cunningham v Neary [2004] 2 ILRM 498, Roche v Clayton [1998] 1 IR 596, Celtic Ceramics Limited v IDA [1993] 1 ILRM 248, Hogan v Jones [1994] 1 ILRM 512, Birkett v James [1977] 2 All ER 801 and Gilroy v Flynn [2005] ILRM 290 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 8 - Renewal set aside (2002/15811P - Feeney J - 17/12/2008) [2008] IEHC 453

Bingham v Crowley

1 Judgment of Mr. Justice Feeney delivered on the 17th day of December, 2008.

1. Introduction

2 Applications have been brought in these proceedings by the first and second named defendants seeking order setting aside orders of the High Court renewing the plenary summons. The second named defendant seeks to set aside an order of the High Court made the 19 ^th February, 2007, renewing the summons as against the second named defendant. In the alternative the second named defendant seeks an order setting aside an earlier order of the High Court made the 21 ^st November, 2005, renewing the summons as against all defendants for a period of six months from that date. The first named defendant seeks an order setting aside the order of the High Court made the 21 ^st November, 2005.

3 2. The applications brought by the first and the second named defendants are made pursuant to Order 8, rule 2 of the Rules of the Superior Courts. Order 8, rule 2 provides:-

"In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order".

4 Neither the first nor the second named defendants have entered an appearance and both parties seek orders setting aside orders renewing the summons.

5 3. The summons was renewed pursuant to Order 8(1) of the Rules of the Superior Courts which provides inter alia:-

6 1. "No original summons shall be in force for more than twelve months from the … date thereof, … but if any defendant therein named shall not have been served therewith, the plaintiff may apply … for leave to renew the summons. The Court … if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original … summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons".

4. Background

7 The proceedings herein relate to a claim for damages arising out of the death of Mirek Bingham who died on the 31 ^st December, 1999 at the Mater Hospital. The plaintiffs are the mother and father of the late Mirek Bingham. The first named defendant is identified in the general endorsement of claim of the plenary summons as being sued as the nominee of the Mater Misericordiae Hospital. The second named defendant is a registered medical practitioner and a Consultant Neurologist. The third to ninth named defendants are other persons who were allegedly involved in the treatment of the late Mirek Bingham but they have not been served with the proceedings. The Court has been informed that it is not the intention of the plaintiffs to serve the proceedings on any of those defendants.

8 5. Mirek Bingham was born in May, 1983 and had a history of neurological problems. Up to 1999, Mirek Bingham was investigated and treated by a number of different medical practitioners. In August of 1999, Mirek Bingham first saw the second named defendant, Dr. Timothy Lynch, who reviewed his condition. Mirek Bingham was admitted to the Mater Hospital on the 15 ^th September, 1999 and he remained in the hospital until his death on the 31 ^st December, 1999. During that period, Mirek Bingham was under the care of a number of consultants, including Dr. Lynch.

9 6. Following the death of Mirek Bingham, his parents, Bernard Bingham and Viola Bingham, acting through their then solicitors, MacGuill & Co., made a complaint to the Gardaí relating to the treatment of their late son. They claimed that their son died as a result of criminal negligence on the part of medical personnel involved in his treatment from 1992 to 1999. One of the persons in respect of whom complaint was made was Dr. Timothy Lynch. Complaints were also made in respect of other medical personnel working in the Mater Hospital between September and December, 1999. A comprehensive Garda investigation was carried out and Dr. Lynch furnished two detailed statements to the Gardaí in relation to his involvement in the review and treatment of Mirek Bingham. In or about May, 2005, the Gardai informed the coroner that the Director of Public Prosecutions had determined that there would be no prosecution arising out of the death of Mirek Bingham.

10 7. Arising out of the death of Mirek Bingham, an inquest was held. The matter was first listed for mention in the Coroner's Court on the 28 ^th September, 2000 and it was initially adjourned at the request of the solicitor acting on behalf of Mr. and Mrs. Bingham. Thereafter it was adjourned on a number of occasions as a result of applications by the Gardaí due to the ongoing criminal investigation. Following the notification that the Director of Public Prosecutions did not intend any prosecution, the inquest proceeded. Ultimately, the inquest concluded with a record of verdict of the Coroner's Court for the County of the City of Dublin dated 12 ^th November, 2007. The record of verdict identified the medical reasons for the death of Mirek Bingham.

11 8. In March, 2005, Mr. and Mrs. Bingham made complaint to the Medical Council in respect of seven named medical practitioners alleging professional misconduct. The complaint was accompanied by a 42 page document which was identified as "a detailed document containing the main issues relating to our son, Mirek's treatment and complaints against each of … Doctors" who were identified in the letter of the 14 ^th March, 2005. The Court has not been informed as to what occurred in relation to the complaints made to the Medical Council. There is no evidence before the Court to suggest that the Fitness to Practise Committee of the Medical Council determined to proceed to hold an inquiry into any of the seven Doctors.

9. Procedural Background

12 Bernard Bingham and Viola Bingham issued the plenary summons on the 10 ^th December, 2002. The summons contained a general endorsement of claim which stated:-

"The plaintiffs' claim is for damages arising out of the death of Mirek Bingham from personal injuries received by him due to the negligence and breach of duty of the defendants or one or other of them, their respective servants or agents".

13 Nine defendants were named. The first named defendant being identified as an nominee of the Mater Misericordiae Hospital and the other eight defendants being medical personnel who were all identified as having an address care of the Mater Hospital. The summons was issued on behalf of the plaintiffs by their then solicitor, MacGuill & Co., three weeks prior to the third anniversary of the death of Mirek Bingham. That summons was not served on any of the defendants. No warning letter was ever written. Neither the first nor the second named defendants were aware of the existence of proceedings until May, 2006.

14 10. In 2003, there was correspondence between a second...