Mangan and Others v Dockery

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 23 October 2014
• Neutral Citation: [2014] IEHC 477
• Docket Number: [2008 No. 4863 P]
• Court: High Court
• Date: 23 October 2014

BETWEEN

ANDREW MANGAN (A PERSON OF UNSOUND MIND NOT SO FOUND) SUING BY HIS MOTHER AND NEXT FRIEND, LORRAINE MANGAN

PLAINTIFF

AND

JULIAN DOCKERY

DEFENDANT

[2014] IEHC 477

[2008 No. 4863 P]

THE HIGH COURT

Personal Injuries Summons – Renewal of Summons – Negligence – Procedure – Paediatric Neurological evidence – Medical Evidence – Time lapse – Expert Evidence

This case is an application to set aside an order of the High Court of the 15th July, 2013, permitting the renewal of the personal injuries summons. The plaintiff in this case suffered severe personal injuries as a consequence of severe respiratory distress in the postnatal period. It is alleged that the injuries were caused by the negligence or breach of duty of the defendant who acted as consultant obstetrician to the plaintiff’s mother during the period of her pregnancy. The plaintiff question incidentally suffers from cerebral palsy, cortical blindness, he is quadriplegic and he requires constant care and attention and is dependent upon every aspect of ordinary life. The application to set aside the renewal of personal injuries summons came before Costello J. in the high court.

Costello J. analysed the background facts of the case and considered whether the introduction of new evidence justified the renewal of personal injuries summons issued by the plaintiff. A personal injury summons was issued on the 17th June 2008, alleging professional negligence against the defendant. No attempt was made to serve this summons on the defendant. That the lapse in time between the 17th June 2008, when the summons issued, and the 15th July, 2013, when it was renewed, was attributable to the efforts taken by Ms. Taylor in complying with the careful and necessary directions of counsel as to the issues that needed to be fully addressed before the summons could be properly be served upon the defendant. Costello J. found that it would neither be possible nor proper for the plaintiff’s case to proceed without the appropriate expert paediatric neurological evidence being available to justify the bringing of proceedings against the defendant. The plaintiff argued that it was only possible to gain paediatric neurological evidence at a later stage, Costello J. stated that that Bingham v. Crowley should be distinguished and that there exists a good reason to renew the summons, or, in the alternative, there exists a potentially good reason to do so in this case. Senior counsel for the plaintiff clearly was not prepared to give the proceedings his imprimatur until he was in possession of such medical evidence as, in his opinion, was required in the light of the plaintiff's legal team's existing state of knowledge. Both the plaintiff and the defendant are agreed that the plaintiff ought to be in possession of an appropriate expert paediatric neurological report before issuing proceedings or continuing them. Costello J. was satisfied that there was a good reason to renew the summons and that the relief sought in the notice of motion should be refused.

Ms. Justice Costello

JUDGMENT of Ms. Justice Costello delivered the 23rd day of October 2014

1 This is an application brought by the defendant pursuant to O. 8, r. 2 of the Rules of the Superior Courts to set aside an order of the High Court of the 15th July, 2013, permitting the renewal of the personal injuries summons herein of the 17th June, 2008. Order 8 provides as follows:-

"1. No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. … and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.

2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order. "

2 The plaintiff was born on the 11th January, 1995, at Mount Carmel Hospital, Dublin 14. In the personal injuries summons it is alleged that he suffered severe personal injuries as a consequence of severe respiratory distress in the post natal period. It is alleged that the injuries were caused by the negligence or breach of duty of the defendant who acted as consultant obstetrician and gynaecologist to the plaintiff’s mother during the period of her pregnancy.

3 It is pleaded that the plaintiff is severely and permanently incapacitated both mentally and physically. His injuries involve severe cerebral palsy, cortical blindness, he is quadriplegic and he requires constant care and attention and is dependent upon every aspect of ordinary life. He sues as a person of unsound mind not so found through his mother and next friend, Lorraine Mangan.

4 A personal injury summons was issued on the 17th June, 2008, alleging professional negligence against the defendant. No attempt was made to serve this summons on the defendant. The plaintiffs solicitor, Ms. Agatha Taylor, swore an affidavit on the 8th July, 2013, for the purposes of grounding an application to renew the personal injuries summons and she stated as follows:-

"The circumstances necessitating the renewal of the summons are summarised as follows. The personal injuries summons was issued on the 17th June, 2008.

I say and believe that it was drafted by junior counsel on the basis of an expert obstetric opinion confirming the existence of negligence on the part of the defendant in the circumstances of the plaintiff's birth. Additional issues identified by junior counsel were raised by this deponent with the obstetric expert instructed on the plaintiff's behalf

Subsequent to the institution of the proceedings but prior to their service, senior counsel was instructed to advise on liability on the plaintiff's behalf Senior counsel advised that the opinion of a consultant paediatric neurologist should be obtained. This deponent had great difficulty in engaging the services of the consultant paediatric neurologist who is willing to report on the plaintiff's behalf and in this respect I wrote to eleven such experts throughout Ireland, the United Kingdom and Canada requesting assistance in the case. Unfortunately none of these specialists were in a position to provide a report on the case. "

5 The defendant brought a motion pursuant to O. 8, r. 2 seeking to set aside the order renewing the summons. Ms. Taylor swore an affidavit in reply to the motion on the 28th February, 2014. She set out in very great detail the very considerable efforts which she took to obtain the necessary and appropriate medical reports prior to proceeding with the plaintiff's case. It is clear that the lapse in time between the 17th June 2008, when the summons issued, and the 15th July, 2013, when it was renewed, was attributable to the efforts taken by Ms. Taylor in complying with the careful and necessary directions of counsel (initially junior counsel and thereafter senior counsel) as to the issues that needed to be fully addressed before the summons could be properly be served upon the defendant (though it was accepted that there was a delay attributable to her maternity leave during this period). She stated that junior counsel was prepared to sign the summons on the basis that certain matters were attended to and in particular that the summons was settled by senior counsel. The steps taken by Ms. Taylor on the advice of counsel and in conjunction with medical advices are set out in paras. 8 to 35 of her affidavit and are appended to this judgement in tabular form. Ultimately a signed report of Dr. Blathnaid McCoy, Consultant Paediatric Neurologist, dealing with timing and causation of the injuries suffered by the plaintiff was received by the plaintiff’s solicitors on the 1st June, 2013. Senior counsel was furnished with a copy of the report on the 4th June, 2013 and he replied on the 12th June, 2013, confirming that the plaintiffs claim should proceed. Thereafter junior counsel was instructed to draft the necessary papers to make the application to renew the summons.

6 Both Ms. Taylor in her affidavit of the 28th February, 2014 and senior counsel in the application in court indicated that they were not in a position to set out the details of the medical issues that counsel required to be addressed or the responses to those issues provided by the experts who ultimately reported on behalf of the plaintiff. It is clear however, that when the summons issued in 2008, the plaintiff only had the benefit of the report dealing with the obstetric care relevant to the case. He did not have a report from a consultant paediatric neurologist. The defendant accepts in written submissions presented on his behalf that expert opinion in relation to timing and causation is part and parcel of hypoxic injury cases. It is stated that paediatric neurology is a sine qua non of such cases. It follows therefore that it is accepted that it would neither be possible nor proper for the plaintiff’s case to proceed without the appropriate expert paediatric neurological evidence being available to justify...