Brannach v Brothers of Charity Services Galway

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IEHC 323
• Court: High Court
• Docket Number: [Record No. 2014/9856P]

Brid Brannach

Plaintiff

and

Brothers of Charity Services Galway

Defendant

[2022] IEHC 323

[Record No. 2014/9856P]

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 31 ^st day of May, 2022.

INTRODUCTION

1 . The Defendant seeks to dismiss the Plaintiff's claim for want of prosecution pursuant to the inherent jurisdiction of the Court and/or for inordinate and inexcusable delay and/or Order 122, rule 11 of the Rules of the Superior Court.

BACKGROUND

2 . The Plaintiff's claim is for damages for personal injuries caused by bullying and harassment in the workplace. The Plaintiff began employment with the Defendant on a temporary basis in or about April, 1993 and was made permanent on or about May, 1995.

3 . The Plaintiff's work-related issues which resulted in the bringing of these proceedings as pleaded date to events occurring in July, 1997 when she raised an issue in relation to inadequate gender/number of staff to service users. She was subsequently the subject of a protracted workplace investigation in 2004 during which period she was suspended. The Plaintiff was subject to further various allegations during the term of her employment. In 2007, the Plaintiff was unable to continue with a three-day training due to injury and was subject to a complaint of misconduct consequent upon same. She was denied requests for leave and required to work days that she was not rostered to work. In January, 2008, she raised concerns in relation to a service user at a meeting but was ignored by management. She attended with her GP following this meeting experiencing severe anxiety, fatigue and persistent insomnia and she was certified unfit for work. Unable to return to work, in April, 2008 she resigned from her position due to the difficulties she was encountering by reason of her work environment. She claims to have developed depression and to require long term hypnotics and anti-depressants to alleviate her symptoms.

4 . It is the Plaintiff's case that she was not provided with a safe place of work, that there was a failure to investigate complaints made by her regarding the care of service users and that she was targeted for making complaints. She found her place of work and hours of work unilaterally changed and was wrongly accused of poor work practices and misdemeanours.

5 . Two sets of proceedings were commenced in the Circuit Court in November, 2009 (by way or Ordinary Civil Bill and Personal Injuries Summons) but were consolidated by order and then transferred to the High Court in November, 2014.

6 . A full Defence was filed in December, 2015, more than 6 years after the issue of proceedings. The Defence included allegations of contributory negligence as against the Plaintiff and a plea based on the Statute of Limitations. It was claimed that the Plaintiff had failed to invoke the Anti-Bullying Procedure or the Dignity at Work Policy.

7 . A Motion to Dismiss by reason of delay was issued by the Defendant in this and in two related cases. The motions in the three cases travelled together and two of the three motions proceeded to hearing together, namely this case and the case of Burke v. Brothers of Charity Services Galway ( Record No. 2010/553P. The Plaintiffs in both proceedings were represented by the same firm of solicitors and correspondence in each case sometimes referred to the other proceedings. Judgements are being delivered together in both cases.

CHRONOLOGY

8 . Insofar as is relevant to the questions I must determine, the following chronology provides an overview of the relevant timeline and steps taken in the more than twenty-three years since the Plaintiff was first subjected to the treatment on foot of which she brings her claim.

Circuit Court Proceedings

High Court Proceedings

Personal Injuries Summons	11 th of November, 2009
Ordinary Civil Bill	6 th of November, 2009
Circuit Court Appearance	14 th of May, 2010
Circuit Court Appearance	14 th of May, 2010
Notice for Particulars	11 th of October, 2010
Replies to Notice for Particulars	3 rd of April, 2013
Notice for Particulars	10 th of September, 2010
Replies to Notice for Particulars	3 rd of April, 2013
Affidavit of Verification of the Plaintiff	3 rd of April, 2013
Affidavit of Verification of the Plaintiff	3 rd of April, 2013
Order of the County Registrar for County Galway	11 th of November, 2013

Plaintiff solicitors wrote to Defendant noting that no objection was taken by the Plaintiff to have the other 2 cases consolidated and heard at the same time	18 th of April, 2011
Solicitors for Defendant wrote to Plaintiff solicitors consenting to amending the PI Summons	2 nd of November, 2011
Plaintiff solicitor wrote to Defendant solicitor requesting a copy of the Plaintiff's contract of employment	2 nd of April, 2012, 1 st of May, 2012, 31 st of May, 2012, 16 th of July, 2012, 4 th of September, 2012, 25 th of October, 2012, 8 th of November, 2012, 15 th of November, 2013
Plaintiff contract of employment copy received under cover letter	20 th of February, 2013
Plaintiff solicitor provided replies to particulars to Defendant solicitor and confirmed affidavit of verification would be furnished shortly	3 rd of April, 2013
Plaintiff solicitor served Motion to consolidate the proceedings and transfer proceedings to the High Court on the Defendant	17 th of April, 2013
Motion to consolidate and transfer of proceedings to the High Court was adjourned to the 27 th of May, 2013	14 th of May, 2013
Plaintiff solicitor requested a copy of a letter from the HSE setting out the Plaintiff entitlements under the Superannuation Scheme	25 th of September, 2013
Plaintiff solicitor wrote to Defendant solicitor noting that they instructed a firm of Accountants to calculate the Plaintiff loss of earnings and pension entitlements	9 th of October, 2013
Plaintiff solicitor served a copy of the Court Order dated 11 th November 2013 on Defendant solicitors	2 nd of December, 2013
Plaintiff solicitor served a Motion to have the matter adopted to High Court on the Defendant solicitor	13 th of November, 2013
Order of the Master of the High Court	14 th of November, 2014
Defendant's solicitor wrote to Plaintiff solicitor requesting the delivery of consolidated pleadings in the matter	14 th of April, 2015, 28 th of April, 2015, 12 th of May, 2015, 29 th of May, 2015
Plaintiff solicitor wrote to Defendant's solicitor confirming that thy had been informed by the High Court Office that there was no requirement to serve consolidated proceedings	28 th of September, 2015
Defence to Consolidated Action delivered	15 th of December, 2015
Affidavit of Verification of Defence	15 th of December, 2015
Notice of Change of Solicitor [Defendant]	20 th of January, 2017
Plaintiff solicitor wrote to Defendant solicitor noting that they were providing Discovery in the 2 associated cases and requested that they indicate that they would provide similar Discovery	19 th of September, 2017
Plaintiff solicitor wrote to Defendant new solicitor noting that the matter was proceeding to trial and requested an affidavit of Discovery	17 th of November, 2017
New Defendant solicitor noted that there was no letter seeking voluntary Discovery on the file	20 th of November 2017
Plaintiff solicitor sent a letter of Voluntary Discovery to Defendant solicitors	1 st of December, 2017
In follow up correspondence it was pointed out that documentation requested was already in the possession of the Defendant given the requests in related cases of Doreen Burke and provided a further 21 days to provide an Affidavit of Discovery	2 nd of January 2018
Defendant solicitors wrote to Plaintiff solicitors noting that they were taking client instructions and asked for forbearance	19 th of January 2018
Defendant solicitors wrote to Plaintiff solicitor offering to provide some of the discovery sought	5 th of February 2018
Plaintiff solicitors sent letter to Defendant solicitor consenting to the categories offered and allowing a period of 4 weeks for the Affidavit of Discovery	22 nd of February, 2018
Defendant solicitors wrote to Plaintiff solicitor noting that their client was collating the necessary documents to comply with discovery	5 th of March 2018
Plaintiff solicitor wrote to Defendant solicitor threatening to report them to the law society for delaying with discovery	27 th of March, 2018
Defendant solicitors wrote to Plaintiff solicitor noting that discovery was only agreed on the 22 nd February 2018 and their client had not been tardy	3 rd of April 2018
Plaintiff solicitors wrote to Defendant solicitor noting that it had been a month since they had written indicating that they would have the affidavit of Discovery and would need to bring a motion if they did not receive same within 14 days	14 th of May, 2018
Plaintiff solicitor received an unsworn affidavit of Discovery	12 th of June, 2018
Plaintiff solicitor wrote to Defendant solicitor nothing that they were yet to send both missing pages from the unsigned discovery and sworn affidavit of discovery	19 th of July, 2018
Plaintiff solicitor wrote to Defendant solicitor noting that the missing pages had not been provided and warned that a motion would issue	31 st of August 2018
Defendant solicitor wrote to Plaintiff solicitor noting that the affidavit was sent back and forth and the Defendant owing to typographical errors and hoped to have it within 2/3 weeks	3 rd of September, 2018
Defendant solicitor sent a sworn affidavit of discovery to Plaintiff solicitor	20 th of September 2018
Plaintiff solicitor wrote to the Defendant solicitor noting the missing material and sought an explanation for the missing pages	24 th of September...