Farrelly v The Board of Beaumont Hospital and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 01 February 2006
• Neutral Citation: [2006] IEHC 58
• Docket Number: [No. 13263 P/1989]
• Court: High Court
• Date: 01 February 2006

[2006] IEHC 58

THE HIGH COURT

[No. 13263 P/1989]

FARRELLY v BOARD OF BEAUMONT HOSPITAL & MCLEAN

BETWEEN

BERNADETTE FARRELLY

PLAINTIFF

AND

THE BOARD OF BEAUMONT HOSPITAL AND PETER McLEAN

DEFENDANTS

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

PRIMOR PLC (PMPA) v FREANEY & STOKES KENNEDY CROWLEY 1996 2 IR 459

CELTIC CERAMICS LTD v IDA 1993 ILRM 248

PRACTICE AND PROCEDURE Delay Excessive and inordinate delay - Behaviour of defendant - Litigant's personal blameworthiness - Whether balance of justice in favour of case proceeding - Whether delay on part of defendant in seeking dismissal of action is factor to be taken into consideration - Application dismissed - (1989/13263P - Gilligan J - 1/2/2006) [2006] IEHC 58 Farrelly v Board of Beaumont Hospital

Mr. Justice Gilligan

1 These proceedings were commenced by way of a plenary summons as dated the 3rd November, 1989. The solicitors for the first named defendants brought a motion on the 3rd December, 1993, to dismiss the plaintiff's claim for want of prosecution, alternatively for an order that the plaintiff should deliver a statement of claim within such time as the court found reasonable following a series of letters calling upon the plaintiff's solicitors to deliver a statement of claim. Arising from the motion as brought by the first named defendant a statement of claim was delivered on the 27th January, 1994. The first named defendants delivered a defence in July, 1994 and the second named defendants a defence in December, 1994. A notice of trial was served in February, 1995 and it appears on the balance of probabilities that a second notice of trial was also served, presumably each notice of trial being served on the respective solicitors for the defendants resulting in the case having two list numbers.

2 Subsequently, the matter appeared in a positive call over list on the18th December, 1996, and as there was no appearance on behalf of any party it appears as a matter of probability that the plaintiff's first notice of trial was struck out. It then appears that the matter appeared in a positive call over list in May, 1998 and the second notice of trial appears to have been struck out.

3 There is a certain amount of confusion as to precisely what occurred on the 18th December, 1996, and again in May, 1998 when the case was listed pursuant to the two notices of trial in the positive call over list. There is a possibility that the actual proceedings herein were struck out but the more probable result appears to have been that it was the respective notices of trial that were struck out. Mr. Maguire on the plaintiff's behalf accepts that the initial affidavit as delivered on the plaintiff's behalf and as sworn by Marian Chambers Solicitor does give rise to a certain amount of confusion as she deposes that the proceedings were struck out but a subsequent correcting affidavit as sworn by Brendan Flanagan confirms that this statement was made in error and that what occurred what that the respective notices of trial were struck out. Margaret Muldowney in her affidavit as delivered on the second named defendant's behalf refers to the notice of trial having been struck out and the first named defendant in its affidavit as sworn on its behalf by Aisling Gannon refers to the proceedings having been struck out but appears to rely on a print out from the Central Office which Mr. Fox on the first named defendant's behalf accepts is inconclusive, and the original affidavit of Marian Chambers. Ms. Gannon does not depose that she has any independent evidence available of her own personal knowledge that she is aware that the proceedings were struck out as opposed to the notices of trial.

4 I take the view on the balance of probabilities that it was the respective notices of trial that were struck out and accordingly the plaintiff's motion to reinstate the proceedings is in these circumstances moot and irrelevant because if the defendant's fail in their motion the appropriate procedure will be for the plaintiff to serve a notice of intention to proceed to be followed by a fresh notice of trial to be served on the respective defendant's solicitors, if necessary, with leave of this Court.

5 The plaintiffs claim is for damages in respect of the professional negligence of the respective defendants arising out of the medical care afforded to the plaintiff while a patient at Jervis Street Hospital following her admission thereto on the 2nd November, 1986, following a diagnosis of a stone at the lower end of the right urethra.

6 The plaintiff complains that it took some two-three years to recover from the treatment as afforded to her and that as of January 1994 she was still suffering from serious discomfort and constant pain in the right hand side of her abdomen with paraesthesia in her right thigh as a result of her treatment by the defendants.

7 The defendants have delivered full defences to the plaintiff's claim.

8 The defendants by motions dated respectively the 9th December, 2005, and the 15th March, 2005, seek an order striking out the plaintiff's claim for excessive and inordinate delay in prosecuting the claim.

9 As the second named defendant's motion is first in time I shall deal with the matter in the defendants reverse order.

10 On the 7th October, 1996, the second named defendant's solicitors were writing to the plaintiff's solicitors indicating that this was a case which should be specially fixed and requesting details as to when the plaintiff would be in a position to proceed with the action.

11 Unfortunately in 1996 the plaintiff's husband died and she suffered considerably as a result of his loss. There was then some further correspondence in particular in 1998 enquiring as to the availability of Mr. Patrick Smith, the plaintiff's medical consultant, and then the case appears to have remained dormant for approximately three and a half years with no contact between the plaintiff's solicitors and the second named defendant's solicitors. It is in my view of significance that on the 25th March, 2002, the plaintiff's solicitors wrote to the defendant's solicitors indicating that they were ready to proceed with the case as Mr. Smith was available in the months of June and July, 2002, but the second named defendant's solicitors replied that a suggested hearing date in June/July, 2002 was unrealistic as the plaintiff's solicitors would have to serve notice of change of solicitor, thereafter notice of intention to proceed and finally, a new notice of trial, the original notice of trial having been struck out in May, 1998 and the case would then presumably take its place at the bottom of the personal injuries list. In my view it is of importance that as of the 27th March, 2002, the second named defendant's solicitors were not raising any issue as regards delay, and were given three months to prepare for a hearing in June/July, 2002. Through counsel the explanation is offered that it would not have been possible to serve a notice of change of solicitor, thereafter notice of intention to proceed and finally, a new notice of trial so that the case could get a hearing within 3 months. In any event counsel submits that the case would then presumably take its place at the bottom of the list. It thus appears that the second named defendants were prepared as of March, 2002 for a delay of more than three months to enable notices to be served and that then the case would go in at the bottom of the personal injuries list which clearly was going to involve a further significant delay in the matter coming on for hearing against a background where there was no reference to any problem with the undoubted delay that that had already taken place, and a clear offer by the plaintiff for a hearing in June/July, 2002.

12 In November, 2002 the plaintiff had heart problems and had to undergo an angiogram and then in the earlier part of 2003 she had a hip replacement and the plaintiff's solicitors wrote to the second named defendant's solicitors in June, 2003 indicating that the plaintiff was now in a position to proceed and that they noted that they had to apply to the High Court to have the notice of trial reinstated.

13 The plaintiff's solicitors also asked that the second named defendants would consent to having the case reinstated and this letter was replied to by way of a letter of the 24th June, 2003, indicating that the solicitors would take their client's instructions and revert. Subsequently on the 18th July, 2003, the second named defendant's solicitors wrote noting that it was intended to serve a notice of intention to proceed and presumably before doing so that a notice of change of solicitor would be served with no reference being made as to whether or not consent was forthcoming to the notice of trial being reinstated. Subsequently on the 26th January, 2005, a notice to proceed was served and it was indicated that a motion was going to be brought to have the case reinstated.

14 In the affidavit as sworn on the second named defendant's behalf it is contended that it was almost 19 years since the events complained of, that there was inordinate and excessive delay, that in all the circumstances the plaintiff had evinced an intention not to proceed reasonably with the action and prayed for the relief as sought.

15 Marian Higgins on the plaintiff's behalf delivered a replying affidavit sworn on the 7th July, 2005, explaining the background to the plaintiff's history of heart disease and her problems with her left hip and also the fact that the plaintiff was deeply upset for many years and was grieving following the death of her husband in August, 1996.

16 Ms. Higgins deposes in the affidavit that she has had considerable difficulty with her medical witness Mr. Patrick Smith. Ms. Higgins deposes that Mr. Smith had previously advised...