Keogh v Wyeth Laboratories Inc.

JudgeMr Justice McCracken
Judgment Date12 July 2005
Neutral Citation[2005] IESC 46
CourtSupreme Court
Docket Number[S.C. No. 64 of 2004]
Date12 July 2005


Joan Bernadette Keogh
Plaintiff/ Respondent


Wyeth Laboratories Incorporated and John Wyeth &Brother Limited
Defendants/ Appellants

[2005] IESC 46

Geoghegan J

McCracken J

Kearns J



Dismissal of proceedings

Delay - Inordinate and inexcusable delay by plaintiff - Balance of justice - Concepts of fairness and prejudice - Whether Supreme Court can interfere with discretion of High Court - Whether plaintiff could be blamed for delay - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459, Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR510 and O'Domhnaill v Merrick [1984] IR151 followed; Rainsford v Limerick Corporation [1995] 2 ILRM 561 distinguished - Defendants' appeal allowed (64/2004 - Supreme - 12/7/2005) [2005] IESC 46)

Keogh v Wyeth Laboratories Inc & John Wyeth & Brother Ltd

Facts: The plaintiff claimed damages for personal injuries sustained by reason of the defendant's negligence arising out of her use of a drug manufactured by the defendant. The defendant applied to have the plaintiff's claim dismissed for want of prosecution. The High Court refused the defendant's application and the defendant appealed to the Supreme Court.

Held by the Supreme Court (Geoghegan McCracken and Kearns JJ) in allowing the appeal that in light of the enormous delay in the case, the justice would be served by allowing the appeal and striking out the plaintiff's claim.

Reporter: R.W.


Mr Justice McCrackendelivered the 12th day of July 2005


This is an appeal from the refusal of the High Court (McKechnie J) to dismiss the Respondent's claim for want of prosecution or in the alternative to dismiss the Respondent's claim pursuant to the inherent jurisdiction of the Court on the grounds of the Respondent's delay in the prosecution of her case.


The Appellants are manufacturers of a drug called Ativan which is a drug for treating anxiety conditions and is available only on prescription. The drug was initially prescribed to the Plaintiff by her general practitioner in 1979 for the purpose of reducing anxiety and panic attacks. She continued to take Ativan on prescription until 1984 when she became aware through a television programme that there were allegations that some people had difficulties with the drug. She tried to reduce her dosage and claims that she suffered serious withdrawal symptoms including panic attacks, fear of leaving the house on her own, depression, difficulty making decisions and poor memory. In 1985 she was referred by her general practitioner to her local health board psychiatric clinic.


In these proceedings the Respondent claims damages for personal injuries, loss and damage sustained by her by reason of the negligence and breach of duty of the Appellants. Her basic claim is that the Appellants were negligent in that they knew that Ativan could be addictive, but failed to give adequate warnings to this effect either to patients who took the drug or to the medical profession who prescribed it. These proceedings were commenced by plenary summons dated 27th January 1989, and a statement of claim was delivered dated 3rd March 1989. On 14th December 1990 the Appellants filed a defence pleading, inter alia, that the claim was statute barred. However, that issue is not relevant to this motion.


On the hearing of this motion in the High Court the Appellants contended that the delay since the issue of the proceedings was both inordinate and inexcusable. This was disputed by the Respondent, but in his judgment the learned High Court Judge found that the delay generally was inordinate and further found that the delay from February 1996 until the issue of this motion on 4th December 2001 was also inexcusable. However, he went on to find in the exercise of his discretion and on the balance of justice that if he were to strike out the action he would have a real sense of doing an injustice to the Respondent, and accordingly he dismissed the application.


On the hearing of this appeal, the Respondent, very sensibly, accepted the learned trial Judge's findings in respect of inordinate and inexcusable delay. The only issue before this Court, therefore, is whether the learned trial Judge correctly exercised his discretion in refusing to strike out the proceedings notwithstanding the inexcusable and inordinate delay. In determining this point, it is not necessary to analyse the steps taken by the parties over the years in quite the same depth as was done by the learned High Court Judge, although the history of the proceedings does have some considerable relevance to theissue.


It is accepted by both parties that the principles applicable to the consideration of the balance of justice in these circumstances are clearly set out in the judgment of Hamilton CJ in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 where he said at page475:-

"...... "


(c) Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;


(d) in considering this latter obligation the Court is entitled to take into consideration and have regard to:-


(i) The implied constitutional principles of basic fairness ofprocedure,


(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,


(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be lookedat.


(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff'sdelay,


(v) the fact that conduct by the defendant which induces the plaintiff to incur further expenses in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,


(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,


(vii) the fact that the prejudice to the defendant referred to at (vi) above may arise in many ways and be other than merely caused by delay, including damage to the defendant's reputation andbusiness."


It should be emphasised that the consideration of the balance of justice is primarily a matter for the discretion of the learned trial Judge, and therefore, as in all considerations of the exercise of a discretion, it should not be interfered with lightly. However, it is a discretion exercised in the light of facts deposed to on affidavit, with no cross-examination, and accordingly this Court has before it exactly the same material as that upon which the learned High Court Judge made his decision. In those circumstances, this Court may more readily interfere with the discretion of the learned High Court Judge.


The position where the delay has been found to be inordinate and inexcusable, and only the balance of justice is considered, has been dealt with in several other cases. In O'Domhnaill v Merrick [1984] IR 151 Henchy J said:-

"Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where as in this case, the delay has been inordinate and...

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