Keogh -v- Wyeth Laboratories Inc. & ors, [2005]IESC46 (2005)

Docket Number:64/04
Party Name:Keogh, Wyeth Laboratories Inc. & ors
Judge:McCracken J.
 
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THE SUPREME COURT

64/2004

Geoghegan J

McCracken J

Kearns J

Between:

Joan Bernadette Keogh Plaintiff/ Respondent

ANDWyeth Laboratories Incorporated

and John Wyeth & Brother Limited Defendants/ Appellants

Judgment of Mr Justice McCracken delivered the 12th day of July 2005

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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 the issue.

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 page 475:-

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(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 of procedure,

(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...

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