McBrearty v North Western Health Board and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 431
• Court: High Court
• Date: 14 December 2007

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

AND

THE NORTH WESTERN HEALTH BOARD, ANDREW McFARLANE, JOHN GLYNN AND JAFPAL SINGH

DEFENDANTS

[2007] IEHC 431

No. 17325 P/2001

THE HIGH COURT

PRACTICE AND PROCEDURE

Dismissal of proceedings

Want of prosecution - Delay - Whether inordinate and inexcusable - Medical negligence - Balance of justice - Whether defendant prejudiced in conduct of defence due to delay - Whether balance of justice in favour of allowing proceedings to continue - Inherent jurisdiction of court to strike out proceedings - Whether justice of case requiring proceedings to be struck out - Whether claim should be struck out on ground of delay - Primor v Stokes Kennedy Crowley [1996] 2 IR 459 applied; O'Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No 1) [1991] ILRM 135, Toal v Duignan (No 2) [1991] ILRM 140, McCabe v Ireland [1994] 4 IR 151 and Gough v Neary [2003] 3 IR 92 considered - Application to strike out proceedings dismissed (2001/17325P - MacMenamin J - 14/12/2007) [2007] IEHC 431

McBrearty v North Western Health Board

Facts: The first, third and fourth defendants sought a number of reliefs dismissing the plaintiffs claim by reason of non compliance with the Rules of the Superior Courts, including delay. The plaintiff suffered injuries during birth and had severe cerebral palsy as a result and was now twenty-six years of age. There was a twenty-six year delay in issuing proceedings. The defendants indicated serious lapses of time and alleged that the delays suffered were inordinate and inexcusable. The fourth defendant alleged specific prejudice as there was a failure to precisely identify the case against him.

Held by MacMenamin J. That the delay as to the first defendant was inordinate and inexcusable. As to the balance of justice, the position of the first defendant was weaker than as to the third and fourth defendants as they were in a position to depose as to their absence of recollection. This was essentially a documents case. An estoppel had been established, however, as against the first defendant. The totality of issues outlined showed that the applicant had not discharged the onus of proof with regard to the balance of justice. The Court would decline the reliefs sought.

Reporter: E.F.

RSC O.28 r7

RSC O.15 r13

RSC O.15 r15

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARAS 6.24 - 6.37

RSC O.13 r13

RSC O.8 r1

RSC O.122 r7

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

ANGLO IRISH BEEF PROCESSORS LTD & DJS MEATS LTD v MONTGOMERY & ORS 2002 3 IR 510 2002/2/275

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 CHAPTER 13 PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

CARROLL SHIPPING LTD v MATHEWS MULCAHY & SUTHERLAND LTD UNREP MCGUINNESS 18.12.1996 1997/2/473

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148 BRENNAN v WESTERN HEALTH BOARD & ROSCOMMON CO COUNCIL UNREP MACKEN 18.5.1999 1999/3/496 1999 IEHC 162

GILROY v FLYNN 2005 1 ILRM 290

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO 2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

SIMOR HUMAN RIGHTS PRACTICE 2000 6.158

MCMULLEN v IRELAND UNREP ECHR 29/07/04

TOAL v DUIGNAN 1991 ILRM 135

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

REIDY v NATIONAL MATERNITY HOSPITAL UNREP BARR 31.7.1997 1998/10/2907

GLYNN (A MINOR) v GOVERNORS & GUARDIANS OF HOSPITAL FOR THE RELIEF OF POOR LYING-IN WOMEN DUBLIN (ROTUNDA HOSPITAL) UNREP O'SULLIVAN 6.4.2000 1999/12/3207 FAUGHNAN v MAGUIRE & ORS 23.6.2006 2006/23/4805 2006 IEHC 282

MESKELL v CIE 1973 IR 121

O DOMHNAILL v MERRICK 1984 IR 151

MANNING v BENSON & HEDGES LTD & GARLAND v JOHN PLAYER & SONS LTD & MCNEVIN v P J CARROLL & CO LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876

O'CONNOR v JOHN PLAYER & SONS LTD & ORS 2004 2 ILRM 321 2004/37/8672

SHANAHAN, MCCORMACK & STEPHENSON v PJ CARROLL & CO LTD & ORS UNREP GILLIGAN 24.4.2007 2007 IEHC 229

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3

BYRNE v MIN DEFENCE 2005 1 IR 577

MCH (J) v M (J) & ORS 2004 3 IR 385

BEHAN v BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

CHAMBERS v KENEFICK UNREP FINLAY-GEOGHEGAN 11.11.2005 2005 IEHC 402

O'GRADY v SOUTHERN HEALTH BOARD 2007 2 ILRM 51

BAULK v IRISH NATIONAL INSURANCE COMPANY LTD 1969 IR 66

CIVIL LIABILITY ACT 1961 S35

Introduction

1 1. The first, third, and fourth named defendants seek a number of reliefs dismissing the plaintiff's claim by reason of alleged non-compliance with time limitations laid down by the Rules of the Superior Courts, and delay in initiating and prosecuting the proceedings herein, where the plaintiff claims damages in respect of alleged negligence and breach of duty on the part of these defendants arising from his birth at 1.40 a.m. in Letterkenny General Hospital early on New Year's Day, 1 ^st January, 1981. He now suffers from severe cerebral palsy of the spastic quadriplegic type, has severe learning difficulties and a mental handicap. He is substantially disabled and requires an electronically-powered wheelchair. He is unable to live independently. He alleges that these medical conditions arise from the negligence and breach of duty of (hose defendants who are the moving parties.

2 2. The first named defendant is sued as the then owner and operator of Letterkenny General Hospital. Notice of discontinuance has been served against the second named defendant, Mr. Andrew McFarlane, a Consultant Obstetrician Gynaecologist in the hospital. He is no longer therefore, a party to these proceedings and no allegation of any form of negligence or breach of duty now remains against him. The third named defendant was a Senior House Officer, and the fourth named defendant was then a Locum consultant Obstetrician in the hospital who attended at the birth.

3 3. Each motion focuses on a number of issues, some of which overlap and others which do not. In order to minimise repetition, and to best illustrate the issues this judgment will deal sequentially with the course of the proceedings, common features between all the applications, and with the specific applications brought by the fourth, third and first named defendants.

The course of the proceedings

4 4. The plaintiff is now a person of unsound mind, though not yet so found. His mother claims that at the time of the birth, now twenty-six years ago, no one informed her that there was any question of negligence. She was simply told that what had occurred was "one of those things". She states that she and her husband are ordinary lay people with little formal education, and are not informed about medical or legal matters. It was only in 1999, soon after Christopher's eighteenth birthday, that she and her husband were advised by Dr. Diarmuid Hegarty, their G.P., that he felt "duty bound" to tell them in Christopher's presence, that they should investigate what happened to their son at or about the time of his birth.

5 5. Anna McBrearty states that she initially sought advice from a firm of solicitors in Donegal. She wrote to them on 11 ^th July, 2000 seeking their advice. In turn, they wrote to the first named defendant (the Health Board) to obtain the medical records relating to the birth and received them on 19 ^th December, 2001. Mrs. McBrearty and her husband were then advised that it was worthwhile obtaining opinion from an independent medico-legal advisor on the issue of liability. However, she was advised this work should be carried out by a firm of solicitors who had more experience in dealing with medical negligence matters.

6 6. The first contact with the plaintiff's present solicitors, Messrs. Tansey & Associates, took place on 21 ^st November, 2001. On 27 ^th November, 2001 proceedings were issued by plenary summons against the Health Board and Dr. Andrew McFarlane only.

7 On 6 ^th December, 2001 a letter was sent from the Health Board's insurers to the Medical Defence Union (M.D.U.), thought to be indemnifiers of Dr. Singh and Dr. Glynn, advising them of the potential claim. On 24 ^th October, 2002 a letter was sent from the M.D.U. to Irish Public Bodies (the indemnifiers of the first named defendant) confirming that they had identified Dr. Singh as a member of the MDU and that he had been located in Canada. Almost one year after the plenary summons was issued, on 8 ^th November, 2002 service was effected on solicitors for Dr. McFarlane, Messrs. McCann Fitzgerald. That firm was acting for Dr. McFarlane, indemnified by M.D.U.. On 19 ^th November, 2002 the solicitors for the Health Board, Messrs. Coffey & McMahon, were served with the proceedings. They entered an appearance on 22 ^nd November, 2002. On 31 ^st January, 2003, an appearance was entered on behalf of the second named defendant, Dr, McFarlane, by Messrs. McCann Fitzgerald. One and a half years after the issuing of the plenary summons, on 6 ^th May, 2003, a statement of claim was delivered to Dr. McFarlane. On 26 ^th July, 2003 a medical report of Professor Taylor for the plaintiff, (not exhibited but referred to in a report from Mr. Roger Clements, Consultant Obstetrician Gynaecologist) was obtained. One year and ten months after the issuing of the plenary summons, on 10 ^th September 2003, a statement of claim was delivered to the Health Board which, five months later, on 7 ^th March, 2004, raised a notice for particulars. On 23 ^rd March, 2004, a defence was filed by Dr. Andrew McFarlane, and a notice for particulars was served by him on the plaintiff's solicitors. On 21 ^st June, 2004 the High Court (Kearns J.) granted an order to the first named defendant permitting four...