Mangan (A Minor) v Dockeray
| Jurisdiction | Ireland |
| Judge | Mr Justice Binchy |
| Judgment Date | 12 April 2018 |
| Neutral Citation | [2018] IEHC 195 |
| Docket Number | [2008 No. 4863 P.] |
| Court | High Court |
| Date | 12 April 2018 |
[2018] IEHC 195
THE HIGH COURT
Binchy J.
[2008 No. 4863 P.]
AND
Tort – Practice & Procedures – Dismissal of claim – Lack of cause of action – O. 19, r. 28 of the Rules of the Superior Courts – Medical negligence – Premature delivery – Neonatal care
Facts: The second and third named defendants each filed two motions against the plaintiff/minor for seeking substantially similar reliefs namely, the dismissal of the plaintiff's claim for medical negligence against them. The said defendants alleged that the continuance of claim against them was an abuse of process of law as there was no reasonable cause of action against them. The peculiar facts of the case were that the plaintiff originally filed the case against the first defendant only for medical negligence and it was the application of the first defendant due to which the second and third named defendants were joined as third parties to the proceedings.
Mr. Justice Binchy granted an order for the dismissal of the claim against the second and third named defendants. The Court found that the plaintiff's own expert evidence was to the effect that the plaintiff's injuries were caused by the negligence of the first defendant and the plaintiff had not alleged any deficiency and lack of care on part of the second and third named defendants. The Court opined that the plaintiff was not entitled to sue the second and third named defendants in professional negligence proceedings on the basis of contentions made only by the first named defendant. The Court found that the plaintiff had not adopted the allegations made by the first named defendant against the second and third named defendants as his own and thus, there was no reasonable cause of action against the said defendants.
There are two motions brought before the court in substantially similar terms. The first in time is that of the second defendant and is dated 2nd March, 2017. It is grounded upon the affidavit of Mr Ciarán O'Rorke, solicitor of Hayes Solicitors dated 1st March, 2017.
The second in time is the motion of the third named defendant which is dated 12th September, 2017, and is grounded upon the affidavit of Mr John Gleeson, solicitor, of Mason Hayes and Curran Solicitors dated 11th day of September, 2017.
The first motion seeks the following reliefs:-
‘(a) An order pursuant to the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of this Honourable Court striking out the plaintiff's claim against the second named defendant on the grounds that it is an abuse of process;
(b) An order pursuant to the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of this Honourable Court striking out the plaintiff's claim against the second defendant on the grounds of inordinate and inexcusable delay;
(c) An order pursuant to O. 25 and/or O. 34 and/or O. 35 of the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of this Honourable Court, directing the trial of a preliminary issue of law and/or fact, namely the questions:
(i) whether the plaintiff's claim against the second named defendant is an abuse of process, and
(ii) whether the plaintiff's claim should be struck out as an abuse of process;
(iii) whether the plaintiff's claim against the second defendant is barred pursuant to the provisions of the Statute of Limitations Act 1957 (as amended);
(d) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts or in the alternative pursuant to the inherent jurisdiction of this Honourable Court striking out the plaintiff's claim against the first defendant on the grounds that it is unsustainable or in the alternative bound to fail in circumstances where proceedings issued outside the time limit laid down by the Statute of Limitations Act 1957 (as amended). ’ The reference in this paragraph to the first defendant is clearly an error and should refer to the second defendant.
As I have said above, the second motion is in substantially similar terms to the first motion. However, there are some differences:-
(i) In relying on O. 19, r. 28, the second defendant does so on the grounds that the proceedings against him are unsustainable or in the alternative bound to fail because the proceedings issued outside the time prescribed by the Statute of Limitations Act 1957. In relying on the same rule however, the third named defendant moves its motion not on the grounds that the claim against it is statute barred, but on the grounds that the claim discloses no reasonable cause of action and/or is frivolous or vexatious.
(ii) The third named defendant also seeks an order pursuant to the European Convention on Human Rights Act 2003, dismissing the plaintiff's claim as contrary to the third defendant's right to a trial within a reasonable time pursuant to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). Although not referred to expressly by the second defendant in the first motion, counsel on his behalf did rely upon the ECHR in their submissions.
In opposing each of the first and second motions, Ms Agatha Taylor, solicitor the plaintiff in the firm of Ballagh Solicitors, swore affidavits dated 4th April, 2017 and 25th October, 2017. She also swore a short supplemental affidavit during the course of the hearing of these motions, dated 29th November, 2017.
The plaintiff was born on 11th January, 1995 at Mount Carmel Hospital, which was then under the management of the third defendant. In his affidavit, Mr Gleeson avers that the third defendant sold its interest in the hospital in April 2006 and that the hospital subsequently closed entirely in early February, 2014.
The first defendant is the consultant obstetrician and gynaecologist who, it is alleged, at all material times provided ante-natal care to the plaintiff's mother Lorraine Mangan. The second defendant is the consultant paediatrician who provided neo-natal care to the plaintiff's mother, and the third named defendant was, at the time that the plaintiff was born, the proprietor of Mount Carmel Hospital with responsibility for the operation and management of the hospital during the period leading up to the plaintiff's birth and during his neo-natal care thereafter.
The plaintiff suffers from severe cerebral palsy, cortical blindness and quadriplegia. According to the affidavit of Ms Taylor of 4th April, 2017, the plaintiff is entirely dependent in respect of all aspects of his everyday living. Accordingly, the plaintiff's solicitor takes instructions from his next friend, his mother.
The personal injury summons was issued on 17th June, 2008 alleging professional negligence against the first defendant. This summons was not served, and no attempt was made to serve the summons on the first defendant. Accordingly, it was necessary for the plaintiff to bring forward an application to renew the personal injury summons, which application was made on 15th July, 2013. That application was granted by Peart J. on 15th July, 2013. Following upon that, the first defendant brought an application to set aside the order of Peart J., which application was heard but refused by Costello J. in a judgment handed down on 23rd October, 2014. The first defendant then appealed that decision, unsuccessfully, to the Court of Appeal, which handed down its decision on 13th May, 2015.
On 2nd November, 2016, the first defendant issued a motion to join the second and third defendants as third parties to the proceedings. This motion was grounded upon the affidavit of the solicitor for the first defendant, Ms Fiona Brassil. In this affidavit, M. Brassil averred, inter alia:-
‘The defendant has received expert advice to the effect that the ventilation provided to the plaintiff and his management was not appropriate and [that] the plaintiff was inappropriately hypocarbic as a result leading to brain injury. The defendant has also been advised by his experts that it was inappropriate to provide or attempt to provide the kind of paediatric or neonatal care actually afforded to the plaintiff in the setting of Mount Carmel Hospital without specialised and resident paediatric expertise. Further, there was an inadequate setting to ensure appropriate availability of blood gas testing and monitoring at Mount Carmel Hospital. The defendant will allege as against the third parties that it was not acceptable for the plaintiff to have remained in Mount Carmel, as opposed to being transferred elsewhere for appropriate neonatal care and that the care actually afforded to the plaintiff by Mount Carmel staff (whether under the direction of Dr. Denham or in applying hospital policy or protocols) was negligent. The negligence on the part of the proposed third parties, it will be alleged, has caused the plaintiff to suffer the injuries he now suffers from.’
The application to join the second and third defendants as third parties came on for hearing before Barr J. on 21st November, 2016. On that occasion, the plaintiff took the decision to apply to have the intended third parties joined as co-defendants to the proceedings. The Court acceded to that application.
In her affidavit of 4th April, 2017, Ms Taylor explains the reason why the plaintiff decided to make application to have the intended third parties joined as co-defendants. It is clear that this was a well-considered decision. But it is equally clear that the decision not to join the second and third defendants to the proceedings in the...
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