Fox v Cherry Orchard Hospital

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 03 May 2019
• Neutral Citation: [2019] IEHC 285
• Docket Number: 2010 No. 9208 P
• Court: High Court
• Date: 03 May 2019

[2019] IEHC 285

THE HIGH COURT

Barrett J.

2010 No. 9208 P

Between:

CAROL FOX

Plaintiff

– and –

CHERRY ORCHARD HOSPITAL

AND

THE HEALTH SERVICE EXECUTIVE

Defendants

Want of prosecution – Inordinate and/or inexcusable delay – Harassment – Defendants seeking an order dismissing the plaintiff’s claim for want of prosecution – Whether there had been inordinate and/or inexcusable delay

Facts: The plaintiff, Ms Fox, was a care-worker employed by the defendants, Cherry Orchard Hospital and the Health Service Executive, between January and October 2008. She claimed that she was subjected to bullying and harassment during her employment and that she had no choice but to resign. The defendants came to the High Court seeking (1) an order pursuant to O. 122, r. 11 RSC, dismissing Ms Fox’s claim for want of prosecution, and (2) in the alternative, an order dismissing Ms Fox’s claim for want of prosecution on grounds of inordinate and/or inexcusable delay. The hearing focused on item (2) and this was so clearly a case on which the defendants fell to succeed by reference to same that the court did not consider item (1).

Held by Barrett J that there had been inordinate delay by Ms Fox and that no good excuse had been offered for the inactivity from November 2015 to July 2018; nor did the court see any excuse to present. To the extent that complaint was made that the defendants did not complain of delay sooner or seek to issue a motion to dismiss earlier, Barrett J held that these were Ms Fox’s proceedings and so it was up to her to prosecute with all appropriate speed, and that there had in any event been no culpable delay on the part of the defendants.

Barrett J held that he would grant an order dismissing Ms Fox’s claim for want of prosecution on the grounds of inordinate and inexcusable delay.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 3rd May, 2019.

1 Ms Fox was a care-worker employed by the defendants at Cherry Orchard Hospital between January and October 2008. She claims that she was subjected to bullying and harassment during her employment and that she had no choice but to resign. The defendants come to court seeking (1) an order pursuant to O.122, r.11 RSC, dismissing Ms Fox's claim for want of prosecution, and (2) in the alternative, an order dismissing Ms Fox's claim for want of prosecution on grounds of inordinate and/or inexcusable delay. The hearing focused on item (2) and this is so clearly a case on which the defendants fall to succeed by reference to same that the court does not consider item (1).

2 The following chronology of relevant events has been prepared by the solicitors for the defendants and is respectfully adopted by the court:

Jan-Oct 2008 Period of alleged bullying and harassment.

05.10.2008 Date of alleged wrongful dismissal/resignation

23.07.2010 Pre-action letter of plaintiff's solicitors.

18.08.2010 PIAB letter acknowledging completed application of 16.08.2010.

18.08.2010 PIAB authorisation.

03.11.2010 Defendants” notice for particulars.

13.04.2011 Plaintiff's replies to particulars.

15.08.2011 Defence delivered.

26.03.2012 Plaintiff's Notice for Particulars and Reply to Defence.

21.05.2012 Defendants” voluntary discovery request.

02.11.2012 Defendants” motion for discovery issues.

21.01.2013 Order for plaintiff to make discovery.

11.02.2013 Plaintiff's notice of appeal to Supreme Court.

12.05.2014 Certificate of readiness by plaintiff.

15.01.2015 First listing in Court of Appeal following transfer.

21.01.2015 Defendants” motion to adduce new evidence

23.03.2015 Order of Court of Appeal varying High Court order.

20.04.2015 Perfection of Order of Court of Appeal.

02.11.2015 Plaintiff's affidavit of discovery.

30.07.2018 Notice of Trial issued by plaintiff.

31.07.2018 Receipt of letter serving notice of trial.

03.08.2018 Solicitors for plaintiff notify intention to seek hearing-date.

17.08.2018 Solicitors for defendants reply.

28.09.2018 Further correspondence from solicitors for defendant.

23.10.2018 Solicitors for plaintiff reply.

06.11.2018 Further correspondence from solicitors for defendant.

3 The law as to strike-out for inordinate and inexcusable delay has been considered at length by the appellate courts in recent years. As good a summary as any of the applicable principles is to be found in the relatively recent judgment of the Court of Appeal in ...