Patrick Rooney v Health Service Executive

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date21 March 2022
Neutral Citation[2022] IEHC 132
CourtHigh Court
Docket Number2016 No. 2173 P
Between
Patrick Rooney
Plaintiff
and
Health Service Executive
Defendant

[2022] IEHC 132

2016 No. 2173 P

THE HIGH COURT

Personal injuries – Medical negligence – Inordinate and inexcusable delay – Defendant seeking to dismiss proceedings – Whether the plaintiff had been guilty of inordinate and inexcusable delay in the prosecution of the proceedings

Facts: The defendant, the Health Service Executive, applied to the High Court to dismiss proceedings taking the form of a personal injuries action arising out of alleged medical negligence. The application to dismiss was advanced on a number of related grounds including the failure to provide full and detailed particulars of the claim as required by the Civil Liability and Courts Act 2004, the continued failure to obtain a report from an independent expert supporting the claim for medical negligence, and the inordinate and inexcusable delay in prosecuting the proceedings. Objection was also made that notwithstanding that the solicitors of the plaintiff, Mr Rooney, had been notified that the wrong defendant had been named in the proceedings, no steps had been taken to correct that defect. It was said that there was no cause of action against the named defendant in circumstances where it did not have any responsibility for the hospital at which the medical treatment had been given.

Held by Simons J that the plaintiff had been guilty of inordinate and inexcusable delay in the prosecution of the proceedings and that the balance of justice lay against allowing the proceedings to go to full trial. Accordingly, Simons J made an order dismissing the proceedings. Simons J held that the proceedings also fell to be dismissed by reference to the alternative grounds.

Simons J held that the default position under Part 11 of the Legal Services Regulation Act 2015 is that a party who has been entirely successful in proceedings is entitled to recover its measured costs from the other side. Simons J held that if this default position were to obtain, then the Health Service Executive would be entitled to its costs.

Application granted.

Appearances

Daniel Coyle for the Plaintiff instructed by A.K. McGrath Solicitors (Dundalk)

Brian Conroy for the Defendant instructed by Mason Hayes & Curran LLP (Dublin)

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 March 2022

INTRODUCTION
1

This judgment is delivered in respect of an application to dismiss the within proceedings. The proceedings take the form of a personal injuries action arising out of alleged medical negligence. The application to dismiss is advanced on a number of related grounds including (i) the failure to provide full and detailed particulars of the claim as required by the Civil Liability and Courts Act 2004; (ii) the continued failure to obtain a report from an independent expert supporting the claim for medical negligence; and (iii) the inordinate and inexcusable delay in prosecuting the proceedings. Objection is also made that notwithstanding that the Plaintiff's solicitors have been notified that the wrong defendant has been named in the proceedings, no steps have been taken to correct this defect. It is said that there is no cause of action against the named defendant in circumstances where it does not have any responsibility for the hospital at which the medical treatment had been given.

PROCEDURAL HISTORY
2

These proceedings take the form of a personal injuries action. The action relates to the provision of medical treatment to the Plaintiff at the Mater Misericordiae University Hospital, Dublin (“ the Mater Hospital”). It is pleaded that the Plaintiff underwent an angiogram and angioplasty under the care of a named consultant radiologist on 28 May 2014. It is further pleaded that the Plaintiff subsequently suffered pain in his left leg, and that on 19 June 2014 the remnant of an angioplasty balloon and catheter were found within his superficial femoral artery. Thereafter, the Plaintiff was required to undergo a below knee amputation, and, ultimately, an above knee amputation, on 20 June 2014, and 15 July 2014, respectively.

3

No proper particulars have been pleaded in respect of the alleged acts of negligence. The most that is said is that the Health Service Executive, its servants or agents, were negligent in that they (allegedly) caused or permitted the remnants of an angioplasty balloon and catheter to be left within the lumen of the Plaintiff's left superficial femoral artery.

4

The absence of particulars is explained as follows at paragraphs 17 and 18 of the personal injuries summons:

“17. As of the date of the issue of Personal Injuries Summons, the Plaintiff is unable to include therein full and detailed particulars of the acts of the Defendant its servants or agents, constituting the wrong, particulars of negligence, breach of duty, including breach of statutory duty, particulars of injury and particulars of special damage in circumstances where the Plaintiff issued a Personal Injury Summons in order to protect his position under the Statute of Limitations Act 1957 (as amended) and prior to having received full and complete medical records from the Defendant and expert reports from medical practitioners in the relevant field. The Plaintiff therefore reserves the right to adduce all the details required by Order 1(A) of the Rules of the Superior Courts including details of the circumstances of the wrong, particulars of negligence and breach of duty including statutory duty, particulars of personal injuries, loss and damage, upon receipt of any and all medical records and expert reports in this regard. The Plaintiff relies on the statement for the purpose of Order 1(A) Rule 6 of the Rules of the Superior Courts.

18. If the Plaintiff has not yet received reports from the medical expert who it is anticipated will give evidence on his behalf in respect of the negligence, breach of duty including breach of statutory duty and causation in relation to the personal injuries as sustained by him and losses and damage arising to him, he reserves the right to add to [the] Indorsement of Claim hereon upon receipt of same.”

5

The personal injuries summons was issued out of the Central Office of the High Court on 10 March 2016. A single defendant is named in the proceedings, the Health Service Executive. The summons was ultimately served on the Health Service Executive on 2 February 2017.

6

Shortly thereafter, the solicitors acting on behalf of the Mater Hospital, on instructions from the State Claims Agency, wrote to the Plaintiff's solicitors on 5 April 2017. The letter raised a number of objections to the form of the proceedings, including specifically the failure to plead full and detailed particulars. The letter also explained that insofar as any allegations were to be made in respect of care provided at the Mater Hospital, the Health Service Executive was not the appropriate defendant in circumstances where the HSE does not own, operate or manage the Mater Hospital.

7

The letter on behalf of the Mater Hospital concluded as follows:

“Please confirm, as a matter of urgency:–

  • 1. Whether you have received requisite supportive expert opinion from an appropriately qualified expert(s) alleging negligence against our client;

  • 2. If not, please confirm why you issued and served the Summons in those circumstances and confirm that you intend to discontinue the proceedings;

  • 3. If you have, please confirm you will deliver full Particulars of Negligence informed by that expert opinion without delay;

  • 4. If you have, please confirm you will deliver Particulars of Personal Injuries without delay;

  • 5. If you have, please confirm you will deliver Particulars of Special Damages without delay;

  • 6. That you will make an application to substitute the Mater Misericordiae University Hospital for the Health Service Executive. Please note that we consent to that application and that the cost of that application is for yourselves.

Until such time as the Mater Misericordiae University Hospital has been appropriately named, we will not be in a position to enter an appearance on their behalf. Further, it appears at this stage that no stateable case has even been made against our client, despite over a year passing since issue of the proceedings.

Needless to say, until such time as you have amended the title of the Defendant, clarified the position, and responded fully and satisfactorily to these queries, we will not be in a position to investigate the claim, to raise a Request for Further Information or to enter our Defence.”

8

Regrettably, no response was received from the Plaintiff's solicitor to the above letter of 5 April 2017. The solicitors acting on behalf of the Mater Hospital wrote to the Plaintiff's solicitor on a number of occasions thereafter. Again, no substantive reply was ever made to these letters.

9

A notice of change of solicitor was filed on behalf of the Plaintiff on 10 May 2018. It has been explained that, following the dissolution of the original firm of solicitors acting for the Plaintiff, one of the solicitors in the former partnership retained carriage of the proceedings.

10

Ultimately, the solicitors who had previously been acting on behalf of the Mater Hospital entered an appearance on behalf of the Health Service Executive. A notice of motion was issued on 10 February 2020 seeking, inter alia, to have the proceedings dismissed for failure to comply with the requirements of section 10 of the Civil Liability and Courts Act 2004. In addition, it was sought to dismiss the proceedings pursuant to the High Court's inherent jurisdiction as an abuse of process and on the grounds of inordinate and inexcusable delay. This first motion had been adjourned initially at the request of the Plaintiff's solicitor. Thereafter, the motion was adjourned generally having regard to the restrictions on certain court sittings introduced as...

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4 cases
  • O'Neill v Birthisle
    • Ireland
    • High Court
    • 28 July 2023
    ...that the interests of justice so require. 34 . In a number of judgments, including a recent decision by Simons J. in Rooney v. HSE, [2022] IEHC 132 reference is made to the 2004 Act; to the enhanced level of detail required in pleadings; and to the importance of compliance with procedural r......
  • Tb v Hse
    • Ireland
    • High Court
    • 30 September 2022
    ...opinion and constitutes an abuse of process (reliance being placed inter alia on the decision of Mr. Justice Simons in Rooney v. HSE [2022] IEHC 132). Second, it is contended that this is a situation where there is no credible basis for the assertions in the pleadings. Whilst acknowledging ......
  • Walsh v Mater Misericordiae University Hospital and Another
    • Ireland
    • Court of Appeal (Ireland)
    • 10 November 2023
    ...were overcome by the availability of medical records, and relies upon the recent decision of Simons J. in the High Court in Rooney v HSE [2022] IEHC 132 in which Simons J. stated, at para. 50: “It would be inaccurate to characterise all such actions as ‘documents cases’. The direct evidence......
  • O'Neill v Birthisle
    • Ireland
    • Court of Appeal (Ireland)
    • 23 January 2024
    ...a relevant factor in the context of this type of application is the availability of an alternative remedy, referring to Rooney v HSE [2022] IEHC 132. Noonan J held that if the plaintiff was correct in suggesting that the blame for all the delay rested with her solicitors, then a remedy was ......

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