Mangan (a person of unsound mind not so found) Suing by his Mother and Next Friend, Lorraine Mangan v Dockeray
| Jurisdiction | Ireland |
| Judge | Mr. Justice McGovern |
| Judgment Date | 22 February 2019 |
| Neutral Citation | [2019] IECA 45 |
| Date | 22 February 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Nos. 2018/210 2018/211 |
[2019] IECA 45
THE COURT OF APPEAL
McGovern J.
Whelan J.
McGovern J.
Costello J.
Record Nos. 2018/210
2018/211
AND (BY ORDER)
AND
Personal injury – Professional negligence – Bound to fail – Respondents seeking to strike out proceedings – Whether the proceedings were bound to fail
Facts: The respondents, Mr Dockeray, Mr Denham and the Congregation of the Sisters of the Little Company of Mary, following the delivery of an amended personal injury summons, brought a motion pursuant to O. 19, r. 28 of the Rules of the Superior Courts and under the inherent jurisdiction of the court to strike out the proceedings on the grounds that they were bound to fail and disclosed no cause of action against the respondents. The respondents argued that the amended personal injury summons made it clear that the appellant, Mr Mangan, did not have the type of evidence that would be required to maintain professional negligence proceedings against the respondents and that applying the relevant jurisprudence on this topic the proceedings must be struck out on the basis that they were bound to fail and were an abuse of process. This was the conclusion of the High Court judge. The appellant appealed to the Court of Appeal against that decision.
Held by McGovern J that the High Court judge correctly assessed the legal principles applicable in an application of this nature both so far as O. 19, r. 28 of the Rules of the Superior Courts was concerned and also having regard to the jurisprudence on the professional obligations on legal advisors before commencing professional negligence proceedings. McGovern J held that the High Court judge correctly applied the applicable case law to the facts of this case and reached a conclusion which could not be criticised.
McGovern J held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal from a judgment of Binchy J. dismissing the claims against the second and third named defendants (the respondents) pursuant to O. 19, r. 28 of the Rules of the Superior Courts on the grounds that the pleadings disclose no cause of action against those defendants and that the proceedings against them are bound to fail.
The respondents brought separate motions to dismiss the appellant's claim. Both motions sought dismissal pursuant to O. 19, r. 28 of the Rules of the Superior Courts and also under the inherent jurisdiction of the court on the grounds that the proceedings were frivolous, vexatious and an abuse of process. Both respondents sought an order dismissing and/or striking out the appellant's claim on the grounds of inordinate and inexcusable delay by the plaintiff in prosecuting the claim against them and an order dismissing the claim on the basis that it breached their right to a fair trial within a reasonable time pursuant to Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The first respondent also sought the trial of a preliminary issue as to whether the claim was time-barred under the Statute of Limitations. Having heard the motions, the trial judge based his decision on O. 19, r. 28 and found it unnecessary to deal with the other matters raised. Insofar as this appeal is concerned it was conducted on the basis that any issues not decided by the High Court judge remain open for argument if the matter is remitted back to the High Court.
The appellant brings these proceedings through his mother and next friend. He was born on the 11th January 1995 at Mount Carmel Hospital in Dublin. The first defendant is a consultant obstetrician and gynaecologist who practised at Mount Carmel Hospital at all times material to the matters in dispute. The appellant was born with cerebral palsy and cortical blindness as a consequence of significant respiratory distress. He is profoundly disabled and will be totally dependent on care for his lifetime. The appellant was delivered by caesarean section. The appellant's claim against the first defendant is based on alleged failures in the management of the pregnancy of the appellant's mother and also in respect of alleged negligence in and about the management of the appellant's ante-natal care and his subsequent delivery pre term.
The personal injury summons in this case was issued on the 17th June 2008. As the summons was not served on time, it was necessary for the appellant to bring an application to renew it. An order to that effect was granted on the 15th July 2013. The first named defendant brought an application to set aside that order and the application was refused in the High Court on the 23rd October 2014. That decision was appealed to this court which dismissed the appeal on the 13th May 2015.
On the 2nd November 2016 the first defendant issued a motion to join the respondents as third parties to the proceedings. When the motion came on for hearing on the 21st November 2016 the appellant applied to have the respondents joined as co-defendants to the proceedings and the court acceded to that application. Subsequently, applications were brought by the respondents to strike out the proceedings against them and it is the decision of the High Court in granting those applications that is now the subject of this appeal.
The first named respondent is a retired paediatrician who was involved in the neonatal care of the appellant. The second named respondent is an order of religious sisters which had responsibility for the operation and management of Mount Carmel hospital throughout the period leading up to the appellant's birth and during his neonatal care thereafter. The second named respondent sold its interest in Mount Carmel hospital in April 2006 and the hospital subsequently closed entirely in early February 2014 when the company running it at that time went into liquidation. In those circumstances, the second named respondent claimed that it would be severely prejudiced if these proceedings were allowed to continue against it.
From the commencement of these proceedings on the 17th June 2008 up until the first named defendant's motion for liberty to issue and serve a third party notice upon the respondents on the 2nd November 2016, the plaintiff had not intimated any intention to bring proceedings against either of the respondents. The third party application was grounded on an affidavit sworn by Fiona Brassil, a solicitor in the firm of Daniel Spring & Co. acting for the first named defendant which was sworn on the 2nd November 2016. Paragraph 7 of the affidavit stated:-
‘The Plaintiff was born at 00:39 hours on 11th January 1995. The Plaintiff received suction and was transferred to the Special Care Baby Unit at Mount Carmel wherein the Plaintiff received ventilation between the 11th and 15th January 1995. The Defendant has received expert advice to the effect that the ventilation provided to the Plaintiff and his management was not appropriate and 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 neo-natal 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 Party 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. It may well be the case that one of the proposed Third Parties is willing to indemnify the other against some or all of the particular issues arising inter se the Third Parties but from the Defendant's perspective both the actual care afforded to the Plaintiff and the adequacy of the setting in which it was delivered are at issue.’
Although the plaintiff does not have an expert report which ascribes negligence to either of the respondents, his legal advisors were extremely apprehensive that the first named defendant might lead evidence tending to establish that he was not responsible but that the blame should lie with the respondents. If, in those circumstances, a court was to conclude that the first named defendant was not liable this would have serious consequences for the appellant if the respondents were...
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