Creevy v Barry-Kinsella and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 17 April 2008
• Neutral Citation: [2008] IEHC 100
• Docket Number: [No. 18547 P/2004]
• Court: High Court
• Date: 17 April 2008

Creevy v Barry-Kinsella & Ors

BETWEEN

KAREN CREEVY

PLAINTIFF

AND

CAROL BARRY-KINSELLA, JAMES GARDNER, PETER McKENNA, BILL BOYD, ROBERT HARRISON AND THE GOVERNORS AND GUARDIANS OF THE HOSPITAL FOR THE RELIEF OF POOR LYING-IN WOMEN, DUBLIN

DEFENDANTS

[2008] IEHC 100

[No. 18547 P/2004]

THE HIGH COURT

Abstract:

Practice and procedure - Renewal of summons - Medical negligence - Whether order renewing summons should be set aside - O. 8(2) of the Rules of the Superior Courts

Facts: The plaintiff sought to pursue a claim for negligence arising out of events that occurred during the delivery of twins in October 2001. The plenary summons was issued on the 12th August, 2004 and ultimately served on or about the 21st September, 2006 on the first and fourth named defendants and on the 27th September, 2006 on the sixth named defendant, having been renewed in April 2006. The first and fourth named defendants and the sixth named defendant sought an order pursuant to O. 8(2) of the Rules of the Superior Courts seeking to set aside the order of the High Court renewing the summons.

Held by Dunne J. in refusing the relief sought that the interests of justice required that the summons should have been renewed. The need to investigate the basis of the claim was not a licence to delay but on the facts of this case the plaintiff and her advisors had not overstepped the boundaries of what was permissible.

Reporter: R.W.

RSC O.8 r2

RSC O.8 r1

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

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

ROCHE v CLAYTON & ORS 1998 1 IR 596 1998/37/13875 1999/22/7198

KELLEGHER v BRADLEY & ORS UNREP DUNNE 18.12.2006 2006/31/6624 2006 IEHC 406

REIDY v NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

JUDGMENT delivered by

Ms. Justice Dunne

on the 17th day of April, 2008

1 The plaintiff gave birth to twins on 31^st October, 2001, by Caesarean section at the sixth named defendant's hospital, the Rotunda. Following the birth she suffered a significant haemorrhage. In order to resolve the haemorrhage, a decision was taken to perform a hysterectomy on the plaintiff. It is alleged that the treatment of the plaintiff after the haemorrhage was negligent and in breach of duty, particularly the decision to perform a hysterectomy.

2 A plenary summons was ultimately issued on 12^th August, 2004, claiming damages for personal injuries, loss and damage as a result of the alleged negligence and breach of duty of the defendant's their servants and agents. The plenary summons, though issued, was not served for a considerable period of time and had to be renewed. An order was made on 3^rd April, 2006, by the High Court (MacMenamin J.) extending the time to apply for a renewal of the plenary summons and renewing it for a further six months.

3 The first and fourth defendants and the sixth defendant had sought an order pursuant to O. 8(2) of the Rules of the Superior Courts seeking to set aside the order of the High Court renewing the said summons.

4 Order 8(1) of the Rules of the Superior Courts providesinter alia:-

5 2 "(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 to extend time 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 … summons be renewed.

6 (2) In any case where a summons has been renewed on anex parte application, any defendant shall be at liberty before entering an appearance to serve notice to set aside such order."

7 The application to renew the summons was grounded on an affidavit to Orlaith Traynor, solicitor, sworn on 27^th March, 2006. In the affidavit, she set out the background and stated that she had obtained expert reports from Mr. Michael Gilmer, General Obstetrician and Gynaecologist of the John Radcliff Hospital, Oxford, dated 18^th June, 2003, and 21^st January, 2005, respectively. She also referred to the advices of counsel based on the first report of Mr. Gilmer. One of the matters raised by Mr. Gilmer related to the role of the anaesthetist who attended the plaintiff and Mr. Glimer advised that a report from an anaesthetist should be obtained. Counsel advised inter alia that the plenary summons should be issued to stop time running but not served. Ms. Traynor followed those advices.

8 It was not until February, 2006, that she obtained a report from Dr. Buchan, a consultant anaesthetist. His advices made it clear that that there was no fault apparent from the medical notes and instruction the anaesthetic handling of the plaintiff.

9 Finally, Ms. Traynor made the point that the sixth named defendant was aware of the possibility of a medical negligence action as the plaintiff's medical notes and records had been sought and obtained. She further expressed the view that the individual defendants would have been aware of the possibility of proceedings as a result of a letter from her to the hospital seeking the addresses of the defendants. That letter was dated 28^th July, 2004. On the basis of that affidavit the plenary summons was renewed.

10 Two notices of motion have now issued on behalf of the first and fourth defendants and on behalf of the sixth defendant grounded on the affidavits of Andrea Mulligan on behalf of the first and fourth defendants and Shauna Sugrue on behalf of the sixth named defendant.

11 Ms. Mulligan described the background to this matter. She noted that Ms. Traynor received Mr. Gilmer's first report on 18^th July, 2003 and that the plenary summons was not served because Ms. Traynor was awaiting a report from a consultant anaesthetist. However, she pointed out that no explanation was furnished by Ms. Traynor for the two years and eight months delay between getting Mr. Gilmer's report and Dr. Buchan's report. Further, she complained of the delay of more than three years in proceeding with the claim against the first and fourth defendants following receipt of Mr. Gilmer's report. She added that the letter of the 28^th July, 2004, referred to by Ms. Traynor, was not forwarded to her clients and that they first became aware of the possible claim as a result of a short letter of 7^th July, 2006, four years and seven months after the date of the alleged negligence. She also noted that to date no statement of claim had been delivered and no reason for this was given. Finally, she stated in her affidavit as follows:-

"I say and believe that the delay of the plaintiff in prosecuting this action has grossly prejudiced the first and fourth defendants in their ability to accurately recollect the subject matter of the proceedings and defend the case."

12 Ms. Sugrue complained of the fact that the summons, though renewed in April, 2006, was not served until 27^th September, 2006, some six days before the renewal period was due to expire. She also complained of the delay between obtaining Mr. Gilmer's advice that a report be obtained from a consultant anaesthetist and the receipt of the report from Dr. Buchan. She pointed out that there was no explanation for the delay. Finally she added:-

"I further say and believe that the delay in prosecuting this claim has and will prejudice the sixth named defendant because the passage of time to date and the expected period of time that will elapse between now and the trial of this action will adversely affect the ability of the servants and agents of the sixth named defendant to remember the events of the plaintiff's delivery and to aid in the defence against the plaintiff claim. I say that in the circumstances, the renewal of the said summons is unjust to the sixth named defendant and should be set aside."

13 In reply, Ms. Traynor swore a lengthy affidavit on the 23^rd November, 2006. In that affidavit, Ms. Traynor sets out a comprehensive history of this matter. She outlined her difficulties in finding an appropriate expert to give an opinion on the circumstances surrounding the plaintiff's delivery and the subsequent hysterectomy. That took from November, 2002, to February, 2003, and a report was received as noted already on 18^th June, 2003, from Mr. Gilmer.

14 The task of finding a consultant anaesthetist to advise on that aspect of the case took considerably longer. Ms. Traynor has set out details of the attempts made by her in this regard. She had written to a Ms. Doig of Actions for Victims of Medical Accidents in November, 2004, to assist in finding an appropriate expert and when this did not prove fruitful, she contacted a British firm called Medical Case Notes Assessment Limited in September, 2005. Ultimately, through the intervention of that company, the report was obtained from Dr. Buchan on 3^rd February, 2006.

15 Why Ms. Traynor was trying to find a consultant anaesthetist to advise, she was also taking other steps in relation to the matter. She confirmed the position in relation to hospital records with the sixth named defendant's solicitors and received some missing pages from the medical notes of the plaintiff. She obtained a copy of the relevant protocol from the hospital dealing with post-partum haemorrhage and she obtained further advices from Mr. Gilmer in respect of same. There was further correspondence about service of the proceedings. She was also in correspondence with counsel. She maintained that it was clear that the case had not remained idle and that she was at all...