Gallagher v Letterkenny General Hospital

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date05 June 2019
Neutral Citation[2019] IECA 156
Date05 June 2019
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2019] IECA 156
BETWEEN/
PAUL GALLAGHER
PLAINTIFF/APPELLANT
-AND-
LETTERKENNY GENERAL HOSPITAL, HEALTH SERVICE EXECUTIVE NORTH WEST AREA, THE MINISTER FOR HEALTH

AND

ALISTAIR MC FARLANE
DEFENDANTS/RESPONDENTS

[2019] IECA 156

Costello J.

Peart J.

Edwards J.

Costello J.

Neutral Citation Number: [2019] IECA 156

Record No. 2017/385

THE COURT OF APPEAL

Want of prosecution – Inordinate and inexcusable delay – Negligence – Appellant seeking to appeal against the judgment and order of the High Court dismissing the proceedings against the second respondent – Whether delay was inordinate and inexcusable

Facts: The plaintiff/appellant, Mr Gallagher, appealed to the Court of Appeal against the judgment and order of the High Court (Baker J) dismissing the proceedings against the second defendant/respondent, Health Service Executive North West Area, pursuant to the inherent jurisdiction of the court for want of prosecution on the grounds of inordinate and inexcusable delay. Baker J delivered her written judgment on the 30th March, 2017 and adjourned the motion for a period of three months to allow the plaintiff to assemble expert evidence and reports and to furnish full and detailed particulars of the nature of the plaintiff’s injury, of the alleged negligence and of particulars of loss. On the 5th July, 2017 she was not satisfied that the plaintiff had progressed the proceedings in the manner she required and accordingly she dismissed the proceedings against the second defendant for want of prosecution and ordered the plaintiff to pay the second defendant the costs of the proceedings.

Held by Costello J that the proceedings had not been progressed with expedition and that the period of delay could only be regarded as inordinate in all the circumstances. Costello J concluded that the second defendant had established that the delay was inexcusable as well as inordinate. Balancing the arguments in favour and against the proceedings continuing, Costello J concluded that the justice of the case required that the proceedings be dismissed. Costello J reached this conclusion applying the principles in Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459.

Costello J held that she would refuse the appeal and affirm the order of the High Court.

Appeal dismissed.

JUDGMENT of Ms. Justice Costello delivered on the 5th day of June, 2019
1

This is an appeal against the judgment and order of the High Court (Baker J.) dismissing the proceedings against the second named defendant pursuant to the inherent jurisdiction of the court for want of prosecution on the grounds of inordinate and inexcusable delay. Baker J. delivered her written judgment on the 30th March, 2017 ( [2017] IEHC 212) and adjourned the motion for a period of three months to allow the plaintiff to assemble expert evidence and reports and to furnish full and detailed particulars of the nature of the plaintiff's injury, of the alleged negligence and of particulars of loss. On the 5th July, 2017 she was not satisfied that the plaintiff had progressed the proceedings in the manner she required and accordingly she dismissed the proceedings against the second named defendant for want of prosecution and ordered the plaintiff to pay the second named defendant the costs of the proceedings.

Background
2

This is a very tragic case. The plaintiff was born on the 12th December, 1986 when he suffered a catastrophic injury immediately before, or at or shortly thereafter his birth as a result of which, he is profoundly physically disabled and he suffers from cerebral palsy. He is wholly dependent upon his parents, he cannot speak or walk and he has great difficulty in communicating. Indeed, counsel for the plaintiff indicated even though the proceedings have been brought in his own name, he is only in a position to give general instructions and the detailed instructions are in fact given by his mother.

3

It appears that as a far back as 1998, during the minority of the plaintiff, his parents contacted Sean Boner & Co. solicitors to advise on his behalf. It appears that Mr. Boner made enquiries in relation to a possible claim and took preliminary advice from a consultant based in England, Mr. Roger Clements, in 2001. Proceedings were not issued at that time. The personal injury summons was issued on the 29th March, 2007, one day before the limitation period for bringing the proceedings was due to expire. No real reason was advanced to explain why proceedings were issued in 2007 rather than 2001 or shortly thereafter.

4

It should be noted that the plaintiff and his parents are of extremely limited means and are not in a position to fund the litigation. The solicitor acting on his behalf since 1998 is a sole practitioner and he has stated on affidavit that he also was not in a position to fund the litigation.

5

Having issued the proceedings on the 29th March, 2007 the plaintiff's solicitors served the personal injury summons directly on Letterkenny General Hospital on the 25th March, 2008 shortly before the plaintiff would have been required to renew the summons under Order 8 of the Rules of the Superior Courts. In 1986, Letterkenny General Hospital formed part of the North Western Health Board and by 2008 both those entities were now covered by the HSE. On that basis, Irish Public Bodies Mutual Insurances Limited nominated solicitors to act on behalf of the first and second named defendants.

6

On the 13th February, 2009 solicitors for the first, second and third named defendants inquired when the personal injury summons was served on the first and second named defendants. No reply was received to that letter so they wrote on the 28th May, 2009 noting this and presuming that the plaintiff was not proceeding with the case. They wrote again on the 3rd June, 2009 asking whether, if it was not the plaintiff's intention to proceed with the matter, could they arrange to file a notice of discontinuance. A reply was received on the 27th August, 2009 from the plaintiff's solicitors confirming that the personal injury summons was served on Letterkenny General Hospital on the 25th March, 2008 and upon the second named defendant on the 27th March, 2008. Solicitors for the first and second named defendants requested affidavits of service in respect of service of the personal injury summons on the first and second named defendants in order to satisfy themselves that the summons had been served within a year of issue. On the 17th September, 2009 the plaintiff's solicitor promised to furnish those affidavits in due course. It is to be inferred that they did so as an appearance was entered on behalf of the first and second named defendants on the 26th November, 2009, some twenty months after the issue of the summons.

7

On the 8th December, 2009 the plaintiff filed a notice of discontinuance in respect of the first and third named defendants. On the 5th October, 2010, ten months after entering an appearance, the second named defendant served a notice for particulars on the plaintiff. On the 2nd November, 2010 it served a twenty-one day warning letter in relation to the particulars and on the 23rd November, 2010 it served a further fourteen day warning letter in relation to the particulars. On the 4th February, 2011 the plaintiff's solicitors telephoned the solicitors for the second named defendant stating that they had mislaid the notice for particulars and it was agreed that a further copy would be furnished and a further twenty-eight days to reply would be allowed

8

Thereafter, matters lay dormant for two years until the 20th May, 2013 when a motion to compel replies to particulars issued. By consent on the 1st July, 2013 an order was made directing that the plaintiff furnish the particulars within six weeks. The plaintiff failed to furnish the particulars and solicitors for the second named defendant sent a twenty-one day warning letter in relation to this default. The particulars were not furnished.

9

On the 16th July, 2014 the second named defendant issued a motion to strike out the proceedings on various grounds including inordinate and inexcusable delay, which motion was returnable for the 13th October 2014. Replies to the notice for particulars dated the 5th October, 2010 were delivered by the plaintiff on the 10th October, 2014.

10

The motion to dismiss the proceedings was adjourned on consent to the 13th April, 2015 to explore the possibility of mediation. On the 25th September, 2015 the mediation was adjourned to enable the plaintiff to obtain a further report from Mr. Roger Clements. The mediation was adjourned to the 11th October, 2015 and then to the 22nd October, 2015 and then to the 12th November, 2015 to facilitate receipt of the report from Mr. Clements. On the 12th November, 2015 the plaintiff's solicitor advised that Mr. Clements” report would not be available until the new year and on the 16th December, 2015 it was agreed that the mediation would reconvene on the 21st January, 2016. The day before, on the 20th January, 2016 the plaintiff's solicitors contacted the solicitors for the second named defendant seeking a further adjournment of the mediation. At this point the second named defendants decided to discontinue the mediation process.

11

The motion to dismiss the proceedings on the grounds inter alia of inordinate and inexcusable delay had been adjourned from the 13th October, 2014 to the 13th April, 2015 to the 12th October, 2015 and then it was transferred into the list of fixed dates. On the 21st October, 2015 it was listed for hearing on the 1st February, 2016. The court directed that if the plaintiff wished to file a replying affidavit it must be filed within four weeks of that date. On the 1st February, 2016 the second named defendant agreed to adjourn the motion on the basis that the plaintiff's solicitor stated that he was due to meet with a new obstetric expert in the following weeks. The motion was adjourned...

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9 cases
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    • Ireland
    • Court of Appeal (Ireland)
    • 10 November 2023
    ...inordinate delay, counsel said. He referred the Court to the judgment of Costello J. in Gallagher v. Letterkenny General Hospital & Ors [2019] IECA 156, in particular para. 40 thereof, in which the learned Court of Appeal judge distinguished between inordinate delay that is understandable a......
  • Lane v Enterprise Ireland
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    ...[In relation to the foregoing, see para. 40 of the Court of Appeal's in the decision in Gallagher v. Letterkenny General Hospital & Ors [2019] IECA 156, wherein the Court noted the difference between, on the one hand, an explanation which might attract sympathy and, on the other hand, somet......
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