McBrearty (a person of unsound mind not so found and suing by his mother and next friend Anna McBrearty) v North Western Heath Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 10 May 2010
• Neutral Citation: [2010] IESC 27
• Court: Supreme Court
• Date: 10 May 2010

McBrearty v North Western Health Board & Ors

BETWEEN/

CHRISTOPHER McBREARTY (A PERSON OF UNSOUND MIND NOT SO FOUND BY INQUIRY SUING BY HIS MOTHER AND NEXT FRIEND, ANNA McBREARTY)

Plaintiff/Respondent

and

THE NORTH WESTERN HEALTH BOARD, ANDREW McFARLANE AND BY ORDER OF THE HIGH COURT JOHN GLYNN AND JASPAL SINGH

Defendants/Appellants

[2010] IESC 27

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Appeal Nos. 74, 76, 77 & 99/2008

THE SUPREME COURT

PRACTICE AND PROCEDURE

Dismissal of proceedings

Delay - Want of prosecution - Inordinate and inexcusable delay - Balance of justice - Unfairness to certain defendants - Inherent jurisdiction to strike out proceedings - Constitution - Inherent jurisdiction and separation of powers - Difference and overlap between jurisdiction to dismiss for want of prosecution and inherent jurisdiction to strike out proceedings where unfair to allow to continue -Difference between test of balance of justice and test of fundamental unfairness - Medical negligence - Catastrophic injuries at birth in 1981 - Legal advice sought in 2000 - Whether delay in subsequent prosecution of proceedings - Complications arising from Medical Defence Union position - Consequent uncertainty as to whether defendant doctors covered by insurance or personally exposed - Wealth of written records and witnesses available - Records patently sufficient for formation of experts' opinions - High Court finding that delay was inordinate and inexcusable but balance of justice favoured allowing proceedings to continue - Whether High Court correct that balance of justice favoured allowing plaintiff to proceed - Consideration of severity of injuries when assessing balance of justice - Whether unfair to allow claim against defendant doctors to proceed - Consideration that due to Medical Defence Union position 3rd and 4th defendants may be personally exposed - Enormity of worry and upset consequent upon uncertainty of Medical Defence Union position - Consideration that 1st Defendant remains in proceedings - No prejudice in allowing case to continue - Consideration of level of detail in notice of indemnity and contribution - Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 approved; O'Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No 1) [1991] ILRM 135, Toal v Duignan (No 2) [1991] ILRM 140, Dowd v Kerry County Council [1970] IR 27, Allen v McAlpine [1968] 2 QB 229, Hogan v Jones [1994] 1 ILRM 512, Celtic Ceramics Ltd v IDA (Unrep, SC, 4/2/1993], and Calvert v Stollznow [1980] 2 NSWLR 749, [1982] 1 NSWLR 749 considered; Gilroy v Flynn [2005] IESC 98, [2005] 1 ILRM 290, and Stephens v Flynn Ltd [2005] IEHC 148, (Unrep, HC, Clarke J, 28/4/05) doubted in part - Plaintiff's cross-appeal allowed; delay neither inordinate nor inexcusable - Claim against 3rd and 4th defendants struck out; indemnity and contribution claim against them by 1st defendant to proceed; claim against 1st defendant allowed to proceed (74,76,77 & 99/2008 - SC - 10/5/2010) [2010] IESC 27

Christopher McBrearty (apum suing by his mother and next friend, Anna McBrearty) v North Western Health Board, McFarlane, Glynn and Singh

Facts: The plaintiff was born with substantial disabilities arising from injuries occasioned at birth. The negligence proceedings relating to the birth had a long history arising from issues as to the roles of the respective parties and the joining of parties. Three separate motions were brought by two doctors and the Health Board, invoking the jurisdiction of the Court to strike out the claim for delay. The High Court found that there had been inordinate and inexcusable delay in bringing the proceedings but had allowed them to proceed on the balance of justice. They alleged that there was a serious risk of an unfair trial in defending the action at this time. The High Court had found evidence of stalling in the process of the case and issues had arising as to the role of the Medical Defence Union.

Held by the Supreme Court per Geoghegan J. (Murray CJ, Denham, Hardiman, Geoghegan, Fennelly JJ. concurring), that there was not inordinate ad inexcusable delay and so the action would be allowed to proceed unless it would be fundamentally unfair to any particular defendant because of his special circumstances to have to defend the action. The two doctors, a long time after the events in question, were faced with huge expense and having to pay their own lawyers and so it was fundamentally unfair that they would have to face trial. It was not necessary to consider the balance of justice. The Health Board was in an entirely different position and would be indemnified by its own insurance company. The mishap occurred in a small hospital, relating to notes which were more than adequate. The Court would allow the appeals of the doctors and order that the plaintiffs' action against them be struck out, though they had to still co-operate for the purposes of the indemnity claim. The cross-appeal would be allowed from the finding of the High Court that there was inordinate and inexcusable delay. The motion of the Health Board would be refused and the appeal of the Health Board would be dismissed.

Reporter: E.F.

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

RSC O.28 r7

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

PRIMOR PLC (PMPA) v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140 1990/8/2334

DOWD v KERRY CO COUNCIL & GALVIN 1970 IR 27

ALLEN v SIR ALFRED MCALPINE & SONS LTD 1968 2 QB 229 1968 2 WLR 366 1968 1 AER 543

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512 1994/4/946

CELTIC CERAMICS LTD & ORS v INDUSTRIAL DEVELOPMENT AUTHORITY & HUNT UNREP SUPREME 4.2.1993 1998/3/656

STOLLZNOW v CALVERT 1980 2 NSWLR 749

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

1 JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of May 2010

2 Geoghegan [nem diss]

3 Due to alleged negligent mishap at birth on New Year's Day 1981, the above-named plaintiff/respondent (hereinafter referred to as "the plaintiff") suffers from severe cerebral palsy of the spastic quadriplegic type with attendant learning difficulties and mental handicap. As stated in the judgment appealed from "he is substantially disabled and requires an electronically powered wheelchair. He is unable to liveindependently." As can be seen from the title to the proceedings, the plaintiff is suing as a person of unsound mind and not so found by inquiry by his mother and next friend, Anna McBrearty. According to sworn evidence by the mother, the family was given no reason for the disaster resulting from the birth but was told "it is just one of those things". The McBreartys are of modest means and of limited education. When the plaintiff had reached the age of eighteen, the family general practitioner, Dr. Hegarty, called in the parents and told them that he felt "duty bound" to inform them in the presence of the plaintiff that they should investigate what happened to the plaintiff around the time of his birth.

4 I will pause in the narrative at this point, to explain the general nature of the proceedings and the appeal. As a consequence of the recommended investigation which then took place this negligence action was instituted initially in the name of the plaintiff alone against the North Western Health Board (whose liabilities are now vested in the Health Services Executive) and the second-named defendant, Andrew McFarlane, a consultant gynaecologist and obstetrician attached to the Donegal hospital who was erroneously believed at the time to have been in overall charge of the birth on the night in question. Subsequently, it was discovered that he was not in the hospital on that occasion and proceedings against him were discontinued.

5 The case then had a long history due to a number of factors. Among them was:-

6 1. Confusion about the role of the second-named defendant as already explained. That confusion extended to his purported solicitors McCann FitzGerald who had been nominated by the Medical Defence Union.

7 2. The application by the health board at a relatively late stage, i.e., 11 ^th March, 2005 to join the third and fourth-named defendants as third parties. That application was successful and the High Court went on to join the two third parties as co-defendants. The third-named defendant, Dr. John Glynn, senior House Officer on duty at the time of the birth and Dr. Jaspal Singh, the locum consultant supervising him and who now lives in Canada. Dr. Singh is not an Irish citizen.

8 3. Procedural delays ensued due to having to amend the plenary summons and statements of claim. In the case of Dr. Singh, problems and understandable delays arose in relation to service. It was originally believed that the Medical Defence Union would take over Dr. Singh's defence and nominate McCann FitzGerald as solicitors. When that turned out not to be the case Dr. Singh was given every opportunity to nominate an Irish solicitor to accept service. When he failed to do so, an order of the High Court had to be obtained to permit service of a notice of a concurrent summons out of the jurisdiction.

9 There were, of course, other routine delays due to having to procure appropriate medical reports etc.

10 Eventually, three separate motions were brought, first by Dr. Glynn on the 14 ^th February, 2007, then by Dr. Singh on the 16 ^th February, 2007 and finally but significantly later by the health board on...