Elizabeth O'Connor v Health Service Executive

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 10 February 2022
• Neutral Citation: [2022] IEHC 75
• Docket Number: RECORD NO. 2019/8909P

Between:

Elizabeth O'Connor

Plaintiff

and

Health Service Executive

Defendant

[2022] IEHC 75

RECORD NO. 2019/8909P

THE HIGH COURT

Abuse of process – Delay – Balance of justice – Defendant seeking to strike out the proceedings on the grounds of abuse of process and delay – Whether the balance of justice remained in favour of the case proceeding

Facts: The defendant, the Health Service Executive, applied to the High Court to strike out the proceedings on the grounds of abuse of process and delay. The basis advanced for contending that the claim was an abuse of process was that these were the second set of proceedings instituted in respect of injuries sustained accidentally in a surgical procedure carried out in August, 2013. The plaintiff, Ms O’Connor, had previously issued and subsequently maintained a claim in respect of injuries sustained in the said surgical procedure in proceedings titled Elizabeth O’Connor v Health Service Executive (High Court Record No. 2015/9826P) (O’Connor No. 1). The summons in these proceedings (O’Connor No. 2) was only served on the defendant five days after a decision of the High Court (Barr J) setting aside an earlier order renewing the summons in O’Connor No. 1 bringing those proceedings to a close consequent upon a failure to serve them within time. It was contended that the plaintiff’s claim in O’Connor No. 2 was an effort to circumvent the court’s decision in respect of her failure to prosecute her previous claim in a proper and timely manner and represented a collateral attack on the decision of the High Court ([2020] IEHC 551) in the previous proceedings. The defendant objected that the plaintiff was seeking to litigate an issue in O’Connor No. 2 that should have been brought forward, pleaded, and advanced as part of the plaintiff’s case in her previous proceedings. The delay complaint was advanced on the basis that the plaintiff had delayed inordinately and inexcusably in bringing this claim, resulting in prejudice to the defendant in defending itself.

Held by Phelan J that it would be excessive, unfair and disproportionate to strike out the proceedings as an abuse of process in the circumstances of this case and having regard to the important value which is upheld in vindicating the plaintiff’s constitutional right of access to the court. Phelan J held that there is no bar to bringing more than one set of proceedings arising from the same matter; it may be an abuse of process to seek to bring to trial more than one such set of proceedings, but not in circumstances where the process did not get under way at all. Whilst the delays identified in this case were inordinate and inexcusable, Phelan J did not consider that it had been demonstrated that, on the facts and circumstances of this case, the evidence supported a conclusion that the balance of justice was tipped against the case being permitted to proceed, still less that a real and substantial risk of an unfair trial or unjust result was demonstrated. Phelan J held that should the plaintiff’s claim be dismissed, she would suffer a significant prejudice and hardship in that she would be without a remedy for the alleged wrongs caused to her by the defendant giving rise to this claim.

Phelan J refused the application made to strike out the proceedings. Phelan J held that the plaintiff as the successful respondent to the application was entitled to her costs as against the defendant.

Application refused.

JUDGMENT OF Ms. Justice Siobhán Phelan DELIVERED ON THE 10th DAY OF FEBRUARY, 2022.

INTRODUCTION

1 This matter comes before the Court on an application to strike out the proceedings on the grounds of (a) abuse of process and (b) delay.

2 The basis advanced for contending that the claim is an abuse of process is that these are the second set of proceedings instituted in respect of injuries sustained accidentally in a surgical procedure carried out in August, 2013. The plaintiff had previously issued and subsequently maintained a claim in respect of injuries sustained in the said surgical procedure in proceedings titled Elizabeth O'Connor v Health Service Executive (High Court Record No. 2015/9826P) [hereinafter “O'Connor No. 1”]. The summons in the within proceedings [hereinafter “O' Connor No. 2”] was only served on the defendant five days after a decision of this Court (Barr J.) setting aside an earlier order renewing the summons in O'Connor No. 1 bringing those proceedings to a close consequent upon a failure to serve them within time.

3 It is contended that the plaintiff's claim in O' Connor No. 2 is an effort to circumvent the court's decision in respect of her failure to prosecute her previous claim in a proper and timely manner and represents a collateral attack on the decision of the High Court ( O'Connor v HSE [2020] IEHC 551) in the previous proceedings. The defendant objects that the plaintiff is seeking to litigate an issue in O'Connor No. 2 that should have been brought forward, pleaded, and advanced as part of the plaintiff's case in her previous proceedings.

4 The delay complaint is advanced on the basis that the plaintiff has delayed inordinately and inexcusably in bringing this claim, resulting in prejudice to the defendant in defending itself.

FACTUAL BACKGROUND

5 The plaintiff in these proceedings advances her claim against the defendant arising from the alleged negligent treatment of her by the defendant, its servants or agents, at the defendant Hospital at St. Luke's Hospital, Kilkenny during the course of an emergency caesarean section on the 15th August 2013. In the months and year following the section, the plaintiff developed problems with the functioning of her kidney and required a series of operative interventions. Although the plaintiff claims that she was informed by her doctor in December 2014 that her kidney had suffered accidental damage in the course of the caesarean section which “ought not to have occurred” (and this is the bare plea advanced on the summons in the earlier proceedings), it is her case that it was only on receipt of a report from an expert Consultant Obstetrician, Mr. Roger Clements, in December 2018 that she ascertained that the immediate injury in the procedure was to the ureter, that this occurred as a result of negligent surgical procedure and in turn caused damage to her kidney. Her position is that in the absence of satisfactory medical evidence up to that point, it was only on receipt of the report from Mr. Clements in December 2018 that the plaintiff was equipped to properly pursue proceedings against the defendant by identifying particulars of negligence and damage.

PROCEDURAL BACKGROUND

6 Although the report from Mr. Clements was only received in December 2018, the plaintiff had issued proceedings on the 25th November 2015 against the defendant in High Court Record No. 2015/9826P (O'Connor No. 1) alleging an accidental injury to her kidney, but with little further detail. It is clear from the face of these proceedings that they were initiated as a protective measure to prevent the operation of the Statute of Limitations against the plaintiff but were commenced without the benefit of any expert report. The writ was endorsed as follows at para. 13:

“As of the date of issue of the personal injuries summons herein the Plaintiff is unable to include full and detailed particulars of the acts of the Defendant, its servants or agents, constituting the wrong, particulars of negligence, breach of duty and/or breach of statutory duty, particulars of injury and particulars of special damage in circumstances where the Plaintiff issues this Personal Injuries Summons in order to protect her position under the Statute of Limitations Act 1957 (as amended) and prior to having received full and complete medical records from the Defendant and expert reports from the medical practitioners in the relevant field. The Plaintiff therefore reserves the right to adduce all of the details required by Order 1A of the Rules of the Superior Court including details of the circumstances of the wrong, the particulars of negligence, breach of duty and particulars of personal injuries, loss and damage upon receipt of any and all medical records and expert reports in this regard.”

7 In the absence of a medical report, proceedings issued on 25th November 2015 but were not served at that time pending receipt of a medical report. Thereafter, the evidence before the court is that time was consumed in trying to obtain the full records from the defendant's hospital and subsequently obtaining an expert report from a Professor Lees. There were delays in both obtaining the records and the report and the court is told that due to inadvertence in the plaintiff's solicitors' office, the summons was not served before the expiry of twelve months from the date of issue of the summons.

8 Subsequently an order extending the time for service was granted by the Master of the High Court on 22nd November 2016. This application was grounded on an affidavit sworn by the plaintiff's solicitor on the 16th November 2016 in which he stated that the summons had not been served as a report was awaited from the expert in respect of liability issues. The plaintiff's solicitor deposed to the fact that:

“expert medical report in relation to liability was still awaited”

and

“expert has now been engaged and is in the process of preparing a report in relation to liability…. following receipt of this report the proceedings can be issued without delay.”

9 The order of the Master was endorsed on its face with the statement that the summons was:

“renewed as of this date for the period of six months from the date of such renewal inclusive”.

10 This meant that the renewed summons in O'Connor No. 1 proceedings would expire on the 22nd May 2017 unless served in advance of that date.

11 The six-month time limit specified in the Master's order was not adhered to...