Faughnan v Maguire

• Jurisdiction: Ireland
• Judge: MR. JUSTICE O SULLIVAN
• Judgment Date: 23 June 2006
• Neutral Citation: [2006] IEHC 282
• Docket Number: [No. 7107P/1995]
• Court: High Court
• Date: 23 June 2006

[2006] IEHC 282

THE HIGH COURT

DUBLIN

[No. 7107P/1995]

FAUGHNAN v MAGUIRE & ORS

BRIAN FAUGHNAN (A PERSON OF UNSOUND MIND NOT SO FOUND) SUING BY HIS FATHER AND NEXT FRIEND JAMES FAUGHNAN

Applicant

and

SHEILA MAGUIRE AND BY ORDER CHRISTOPHER PIDGEON, MOSTAFA ALI FAHNY ELKHASHAB AND BY FURTHER ORDER DAVID O'BRIEN

Respondent

RSC O.15 r14

RSC O.15 r13

RSC O.8 r2

PRIMOR PLC & ORS v FREELEY 1996 2 IR 459

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

Abstract:

Practice & Procedure - Medical law - Medical Negligence - Joinder Fourth Defendant - Whether jurisdiction to set aside joinder - Order co-ordinate court - Whether delay in joinder inordinate and inexcusable - Inherent Jurisdiction - RSC O. 15 r. 14

: An applicant was made to set aside an order joining a fourth defendant pursuant to O. 15 r. 14 RSC. The Plaintiff contended that it was inappropriate for a judge to reverse a decision of a coordinate court and that the decision ought to have been appealed. A twenty-two year delay in joinder was argued to be inordinate and inexcusable.

Held by O’ Sullivan J., that the Court had jurisdiction to determine the matter and that the delay involved was inordinate and inexcusable and significant prejudice would result to the fourth defendant if the case proceeded against him. An order would be made striking out the fourth defendant in the proceedings.

Reporter: E.F.

1 APPROVED JUDGMENT DELIVERED BY MR. JUSTICE O SULLIVAN ON FRIDAY, 23rd JUNE 2006

MR. JUSTICE O SULLIVAN

2 MR. JUSTICE O SULLIVAN: This is an application to set aside an order of the High Court by Mr. Justice Johnson, dated 7 November 2005, joining Dr. David O'Brien as the fourth Defendant. It is brought pursuant to Order 15, Rule 14 of the Rules of the Superior Court, but as the case continued in court, it also emerged that it is brought pursuant to the inherent jurisdiction of the Court.

3 Background: First the parties. The Plaintiff was a 35-year-old pilot with Aer Lingus and suffered severe personal injuries from complications following an operation on his pituitary gland at Beaumont Hospital, carried out on 2 April 1992 by the third Defendant, under the supervision of the second. The first Defendant represents the hospital.

4 The fourth Defendant, Dr. O'Brien, was a senior house officer at the time and following the operation, nursing staff became concerned about the Plaintiff's condition and drew this to the attention of medical staff, including the attention of the fourth Defendant who was on the neurosurgical team. The case to be made against the fourth Defendant is that he underestimated the deterioration in the Plaintiff's condition and that, for example, when told of the Plaintiff's severe headaches, informed the nursing staff, it is alleged, that the Plaintiff had a low pain threshold. The Plaintiff's injuries have left him, it is claimed, incapable of communicating and he is described in these proceedings as being of unsound mind not so found: it is therefore submitted that the statute of limitation period does not apply to him.

5 There is an issue in relation to this latter point, because the fourth Defendant at least, challenges this assertion. But it is agreed, and indeed correctly, that I cannot deal with that particular issue in the proceedings now before me.

6 The relevant history of the proceedings: On 13 July 1995, the plenary summons was issued, in the first instance against the first Defendant, but later that year, against the second and third. On 27 July 2005, a first application was brought by the first Defendant to join Dr. O'Brien as a third party.

7 Counsel for Dr. O'Brien was permitted to make submissions to the Court and the application to join him failed on that occasion. I understand the learned Judge said that there was no explanation for the delay, but indicated that the application could be renewed if an explanation for the delay became available.

8 On 7 November 2005, a second application by the first Defendant was made to the Court to join Dr. O'Brien as a third party. Also on that date, it was known that the Plaintiff would apply to court to have Dr. O'Brien joined as a co-Defendant.

9 In light of this latter information, the application to join Dr. O'Brien by the first Defendant as a third party was abandoned, but on that occasion, Dr. O'Brien's counsel was in court, and applied for and got costs. On that day also, I am told, counsel for Dr. O'Brien was not served with any documents in relation to the Plaintiff's application to have him joined as a co-Defendant, was not informed of the application, was not aware of it and played no role in the matter. The order then was made by Johnson J. on that date, and it is against that or in respect of that order that this instant application is now being made.

10 It is clear from this recital of the information relayed to me, that no arguments were made to Johnson J. on 7 November 2005 concerning the delay in joining the fourth Defendant.

11 Dr. O'Brien was only informed that he had been joined as a co-Defendant therefore after the order was made and he has told me through his counsel that he was aware in 2004 that there was a possibility that he would be sought to be joined as a third party in the earlier motions. That information came to him therefore some 12 years after the operation. He has no recollection of his own involvement with the Plaintiff and his treatment, although he does recall the Plaintiff himself because the Plaintiff had a long stay in the hospital, and in fact Dr. O'Brien wrote a report when in the Plaintiff was discharged to the rehabilitation centre in Dun Laoghaire, which happened in mid-June of 1993; that is some 14 months after the operation.

12 In an affidavit sworn to oppose the instant application, Paul Carlos, solicitor for the Plaintiff, quotes from another affidavit sworn by Ms. Aisling Gannon, who was a solicitor for the first Defendant. That affidavit in turn was sworn to ground the first Defendant's application to have Dr. O'Brien joined as a third party. In that quoted affidavit the deponent says that both the second and fourth Defendants were indemnified by the Medical Defence Union, and refers to communications from those with the second Defendant, in regard to who would be representing the interests of Dr. O'Brien, which Ms. Gannon appears to have said in her affidavit dated “as far back as 25 June 2004”. She also refers to an agreement between insurers. In her affidavit Ms. Gannon further says “The MDU had been aware of the involvement of Dr. O'Brien and any issues as arise for him, we believe, since the date proceedings were issued, namely the 13th day of July 1995.” The fact remains, however, that...