Burke v Brothers of Charity Services Galway

• Jurisdiction: Ireland
• Judge: Ms Justice Siobhan Phelan
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IEHC 324
• Court: High Court
• Docket Number: [Record No. 2010/553 P]

Doreen Burke

Plaintiff

and

Brothers of Charity Services Galway

Defendant

[2022] IEHC 324

[Record No. 2010/553 P]

THE HIGH COURT

Want of prosecution – Inordinate and inexcusable delay – Liberty to amend defence – Defendant seeking to dismiss the plaintiff’s claim for want of prosecution – Whether delay was inordinate and inexcusable

Facts: The plaintiff, Ms Burke, claimed damages for personal injuries caused by bullying and harassment in the workplace. The plaintiff began employment with the defendant, Brothers of Charity Services Galway, as a locum houseparent in or about October, 1995. The plaintiff’s work-related issues which resulted in the bringing of the proceedings dated to her attendance at a team building programme in 1999 during which she claimed that she expressed concerns in relation to the treatment of service users and further complained about the lack of support for staff in dealing with challenging service users. In her pleadings she further identified specific events from 1999 including a meeting in the office of a named supervisor in or about July, 2001, a further review meeting in the Spring of 2004 during which the plaintiff was subjected to complaints from fellow staff without intervention from senior staff present, difficulties in relation to sick leave in connection with an unrelated serious illness requiring attendance for medical treatment in the mid-2000s, difficulties in relation to her return to work on a part-time basis in November, 2006, difficulties around the closure of the home where she worked in 2007 associated with the care and relocation of service users and her own re-assignment allegedly unilaterally and without consultation in February, 2008. The plaintiff claimed to have encountered difficulties with work colleagues and to have been subjected to ongoing bullying and harassment throughout this period of almost ten years between 1999 and 2008 culminating in her resignation from her position in April, 2008. The defendant sought to dismiss the plaintiff’s claim for want of prosecution pursuant to the inherent jurisdiction of the High Court and/or for inordinate and inexcusable delay and/or pursuant to Order 122, rule 11 of the Rules of the Superior Court. In the event that the defendant was unsuccessful in the application to dismiss the proceedings on delay grounds, the defendant also sought liberty to amend the defence filed to plead reliance on the Statute of Limitations Act 1957 (as amended).

Held by Phelan J that inordinate delay which had not been satisfactorily explained or excused had been demonstrated. It was nonetheless her view that the balance of justice was in favour of the case proceeding. Furthermore, she had not found a risk of unfairness to be established. There did not appear to her to be any impediment to the early conclusion of the proceedings nor any basis for further real delay. She was satisfied that the defendant had not identified prejudice such as would tilt the balance of justice in favour of granting the order sought. She proposed making directions in relation to next steps in the proceedings specifically with regard to the delivery of an amended defence within a period of fourteen days, the filing of any reply within a further ten days and directing a response to the request for mediation within a period of twenty-one days. Save where mediation was pursued, she directed that all steps necessary to apply for a date for hearing should be taken within three months of the delivery of the judgment and that an application for a hearing date should be made forthwith thereafter.

Phelan J dismissed the application to dismiss proceedings. She allowed the application seeking liberty to amend the defence, conditioned as to time and costs.

Application dismissed.

JUDGMENT of Ms Justice Siobhan 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 pursuant to Order 122, rule 11 of the Rules of the Superior Court.

2 . In the event that the Defendant is unsuccessful in the application to dismiss the proceedings on delay grounds, the Defendant also seeks liberty to amend the Defence filed to plead reliance on the Statute of Limitations Act, 1957 (as amended).

3 . The applications in this case were listed before the Court together with applications in two other cases, namely, Brannach v. Brothers of Charity Services Galway (Record No. 2014/9856P) and McDonagh v. Brother of Charity Services Galway (Record No. 2009/8327P). Due to a late application to come off record by the solicitor acting in the McDonagh case, the applications in that case were adjourned. The applications in this case and in Brannach proceeded and were heard together. The same solicitor acted in both and there was some cross-over in correspondence as between the two cases as both were work related bullying and harassment claims brought against the same employer and the same lawyers acting in both. As there are some differences between the two cases, I am delivering a separate judgment in the Brannach case.

BACKGROUND

4 . 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 as a locum houseparent in or about October, 1995. The Plaintiff's work-related issues which resulted in the bringing of these proceedings as pleaded date to her attendance at a team building programme in 1999 during which she claims that she expressed concerns in relation to the treatment of service users and further complained about the lack of support for staff in dealing with challenging service users. In her pleadings she further identifies specific events from 1999 including a meeting in the office of a named supervisor in or about July, 2001, a further review meeting in the Spring of 2004 during which the Plaintiff was subjected to complaints from fellow staff without intervention from senior staff present, difficulties in relation to sick leave in connection with an unrelated serious illness requiring attendance for medical treatment in the mid-2000s, difficulties in relation to her return to work on a part-time basis in November, 2006, difficulties around the closure of the home where she worked in 2007 associated with the care and relocation of service users and her own re-assignment allegedly unilaterally and without consultation in February, 2008. The Plaintiff claims to have encountered difficulties with work colleagues and to have been subjected to ongoing bullying and harassment throughout this period of almost ten years between 1999 and 2008 culminating in her resignation from her position in April, 2008.

5 . The Plaintiff commenced proceedings in the Circuit Court in January, 2009. These were discontinued (March, 2013) given the link with the within proceedings. The within proceedings commenced in January, 2010. A full Defence was filed more than three years later in May, 2013. The Defence included allegations of contributory negligence as against the Plaintiff but did not include a plea based on the Statute of Limitations.

6 . The Defendant claims that the last step taken in the proceedings was the filing of an affidavit of discovery on behalf of the Defendant (provided to the Plaintiff in May, 2018) on foot of an Order made in July, 2017 and the primary focus of the Defendant's application is on the period of delay thereafter.

CHRONOLOGY

7 . Insofar as is relevant to the questions I must determine, the following chronology provides an overview of the relevant time-line 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.

Employment History

Circuit Court Proceedings:

High Court Proceedings:

Plaintiff began employment with Defendant as a locum houseparent	On or about October, 1995
Plaintiff became a fulltime houseparent with the Defendant	On or about April, 1998
Plaintiff attended a 3-day team building programme in County Galway	On or about, 1999
Plaintiff was called to Office of Ms. Breathnach	On or about July, 2001
A meeting was held to discuss plans and review progress for service users	On or about Spring, 2004
Plaintiff returned to work after Sick leave on a part-time basis	6th of November, 2006
Plaintiff expressed concern about the Inverin home closing and 2 service users being sent to an inappropriate alternative services	November, 2007
Plaintiff due to return to work but unilaterally assigned to 2 different locations, hours and place of work was changed and altered allegedly without consultation	February, 2008

Ordinary Civil Bill	30th of January 2009
Circuit Court Appearance	5th of March, 2009
Notice for Particulars	31st of March, 2009
Replies to Notice for Particulars	7th of July, 2009
Notice for Further and Better Particulars	17th of July, 2009
Replies to Notice for Further and Better Particulars	20th of August, 2010
Notice for Additional Particulars	11th of October, 2010
Notice for Discontinuance	6th of March, 2013

Personal Injuries Summons	21st January 2010
Memorandum of Appearance	6th of May, 2010
Notice for Particulars from Defendant	10th of September, 2010
Replies to Notice for Particulars by Plaintiff	13th of February, 2013
Affidavit of Verification of the Plaintiff	13th of February, 2013
Letter sent from Plaintiff solicitors to the Defendants solicitors	15th of February, 2013
Further letter sent from Plaintiff solicitors to the Defendants solicitors	20th of March, 2013
Motion for judgment in default of Defence	24th of April, 2013
Defence Delivered	1st of May, 2013
Defendant...