RN v Pearse Community College Nursery Ltd and Others; HF v Pearse Community College Nursery Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 28 April 2023
• Neutral Citation: [2023] IEHC 221
• Docket Number: [Record No. 2017/8867P]
• Court: High Court

Between

RN

Plaintiff

and

Pearse Community College Nursery Limited, Tusla Child and Family Agency and Health Service Executive

Defendants

Between

HF

Plaintiff

and

Pearse Community College Nursery Limited, Tusla Child and Family Agency and Health Service Executive

Defendants

[2023] IEHC 221

[Record No. 2017/8867P]

[Record No. 2017/8866P]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered on the 28 ^th day of April 2023.

Introduction.

1 . This is an application by the second and third defendants, who are jointly represented, to have the two actions brought by the plaintiffs against them struck out on grounds of inordinate and inexcusable delay and for want of prosecution.

2 . While it will be necessary to go into the background to each of these actions in more detail later in the judgment, the net issue in the application can be stated in the following way: the two plaintiffs were in a committed relationship in 2015. Their two children were attending the creche operated by the first defendant. In or about April 2015, there was an outbreak of hepatitis A in the creche. In May 2015, each of the plaintiffs contracted hepatitis A, requiring treatment in hospital.

3 . Each of the plaintiffs claim that the outbreak of hepatitis A and, in particular, their contracting that disease, was caused by the negligence and breach of duty of the first defendant in and about its operation of the creche, which was attended by their children. In particular, it is alleged that the first defendant, through its servants or agents, acted negligently by failing to adhere to proper health, safety and hygiene requirements.

4 . The case against the second and third defendants is based on the assertion that they were the entities which had statutory responsibility for inspection and supervision of childcare facilities, including the creche, which was attended by the children of the two plaintiffs. It is alleged that the second and third defendants acted negligently in failing to inspect, supervise and monitor the first defendant's creche adequately or at all; and/or in the alternative, they acted negligently in dealing with the outbreak of hepatitis A, by failing to notify parents, whose children attended the creche, once the outbreak of the said disease had been notified to them.

5 . In this application, the second and third defendants applied for an order dismissing the two actions brought by the plaintiffs against them, on grounds of inordinate and inexcusable delay. This was based on two primary periods of delay, being: first, a delay of eleven months pre-commencement of the action, in the placing of an FOI request by the plaintiff's solicitors, after they had been informed of the identity of the body responsible for provision of such documentation; and secondly, a delay of 4.5 years in furnishing replies to the notices for particulars raised on behalf of the second and third defendants. It is submitted that having regard to the passage of time since the occurrence of the events giving rise to the cause of action in April 2015, the delay must be seen as being inordinate and inexcusable and that the balance of justice is in favour of striking out the proceedings against the second and third defendants.

6 . It was accepted that, subject to some slight variation in the personal circumstances of the two plaintiffs, who have since separated, the two actions are otherwise identical. Accordingly, it is appropriate to deal with the application brought by the defendants in each action, in a single judgment. The court will refer to the relevant differences between the circumstances of the individual plaintiffs, as and where necessary.

Background.

7 . As already noted, in April 2015, the two plaintiffs were in a committed relationship. Their two children were attending the creche or nursery operated by the first defendant. At that time, HF was pregnant with the couple's third child, who was born in July 2015. In or about September 2016, HF became pregnant again, with twins, who were delivered in May 2017.

8 . The plaintiffs plead that at some time prior to 24 ^th April, 2015, a case of hepatitis A infection in a child attending the nursery, appeared to have been notified to the third defendant. It is pleaded that on or about 29 ^th April, 2015, the third defendant made a declaration that there had been an outbreak of hepatitis A associated with the nursery. It is pleaded that on 30 ^th April, 2015, the second defendant had received a telephone call from a parent of another child attending the nursery, regarding the presence of hepatitis A in the nursery and raising a query as to whether that posed a risk to small children and to pregnant women. The plaintiffs have pleaded that from records which they have managed to obtain, the second defendant was, at that stage, unaware of the outbreak of the disease. It is pleaded that on 28 ^th and 29 ^th May 2015, the nursery was closed for a “deep clean”, with concerns having been raised by the second defendant, prior to that date, with regard to “basic health hygiene practices”.

9 . Each of the plaintiffs have pleaded that as a result of the outbreak of hepatitis A in the creche operated by the first defendant and due to the failure to notify them adequately, or at all, as to the precautions that should be taken, they contracted hepatitis A. Each of them required treatment in hospital. It was pleaded by the plaintiff, HF, that she was advised that her labour would have to be induced at 37 weeks gestation, due to the fact that she had a diagnosis of obstetric cholestasis/hepatitis A. She was admitted to hospital on 1 ^st July, 2015 for induction of labour, leading the birth of her son on 3 ^rd July, 2015.

10 . Each of the plaintiffs have pleaded that as a result of contracting the disease, they were greatly affected in all aspects of their lives, including in the work aspects thereof. In addition, they each suffered from distressing personal circumstances, which will be outlined later in the judgment. The two plaintiffs separated temporarily in or about Autumn 2017, and finally separated in January 2018.

11 . The plaintiff HF was born in 1991, making her 24 years of age at the time of the matters complained of. The plaintiff RN was born in May 1993, making him 23 years of age at the relevant time.

12 . The plaintiff HF received her authorisation from PIAB on 22 ^nd March, 2017, her personal injury summons issued on 3 ^rd October, 2017. The plaintiff RN received his authorisation on 4 ^th April, 2017. His personal injury summons issued on 3 ^rd October, 2017.

13 . Appearances having been entered on behalf of the second and third defendants to the two summonses, a notice for particulars was raised in each case on 11 ^th December, 2017 on behalf of the second and third defendants. In each case, a notice of intention to proceed was furnished by the plaintiffs' solicitors on 26 ^th May, 2022. Replies to the notices for particulars were delivered in each case on 9 ^th June, 2022.

14 . By notices of motion issued in each case on 18 ^th August, 2022, the second and third defendants brought the within application to have the proceedings against them struck out. That application was heard by this Court on 31 ^st March, 2023.

Chronology of Key Dates.

15 . A brief chronology of the key dates in the progress of the litigation to date is set out hereunder:-

24 th–29 th April 2015	Outbreak of hepatitis A in the creche and notification thereof to the defendants.
5 th October 2015	Plaintiffs instruct solicitors.
12 th October 2015	Plaintiffs' solicitors make an FOI request to third defendant.
21 st October 2015	Third defendant advises plaintiffs' solicitor what is required to make a consolidated request for access to documents.
16 th September 2016	Plaintiffs' solicitor writes to National Lead Freedom of Information Record Management seeking documentation.
31 st January 2017	FOI documentation furnished.
7 th March 2017	Plaintiffs' solicitors send letter of claim to defendants.
8 th March 2017	Applications lodged to PIAB.
22 nd March 2017	PIAB authorisation issued to HF.
4 th April 2017	PIAB Authorisation issued to RN.
3 rd October 2017	Personal injury summonses issued in each action.
11 th December 2017	Second and third defendants served notice for particulars.
1 st February 2018	Second and third defendants' solicitors send letter seeking replies.
26 th February 2018	Notice for particulars issued by first defendant.
7 th March 2018	Further letter from solicitors from second and third defendants seeking replies; to which plaintiffs' solicitor responds saying that replies will be furnished within a number of weeks.
19 th September 2018	First defendant files its defence.
19 th September 2018	Request for voluntary discovery made by first defendant of both plaintiffs.
16 th January 2019	Request for voluntary discovery repeated.
30 th January 2019	Motion issued by first defendant seeking discovery from HF.
11th March 2019	Consent order for discovery made in favour of first defendant against HF.
22 nd May 2019	Affidavit of discovery sworn by HF.
14 th June 2019	Motion for discovery issued by first defendant against RN.
10 th October 2019	Affidavit of discovery furnished by RN.
26 th May 2022	Plaintiffs' solicitors file a notice of intention to proceed in each action.
9 th June 2022	Replies furnished by plaintiffs to second and third defendants.
18 th August 2022	Notices of motion seeking to strike out action against second and third defendants on grounds of delay are issued.
31 st March 2023	Hearing of motion to strike out against second and third defendants on grounds of delay.

The Evidence.

16 . In each case, the application on behalf of the second and third defendants was grounded on an affidavit...