Yvonne Casserly v Mary O'Connell t/a O'Connell & Company Solicitors

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 May 2013
• Neutral Citation: [2013] IEHC 391
• Judgment citation (vLex): [2013] 5 JIC 0909
• Court: High Court
• Date: 09 May 2013

[2013] IEHC 391

THE HIGH COURT

[No. 3112P/2005]

Casserly v O'Connell t/a O'Connell & Co Solicitors

BETWEEN/

YVONNE CASSERLY

PLAINTIFF

AND

MARY O'CONNELL, PRACTISING AS O'CONNELL & CO., SOLICITORS

DEFENDANT

CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGEMENTS IN CIVIL & COMMERCIAL MATTERS 27.9.1968 (BRUSSELS CONVENTION) ART 2

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

ADAMSON v NORTH EASTERN HEALTH BOARD & ORS UNREP HOGAN 19.4.2013 2013 IEHC 191

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

High court – Litigation - Professional negligence - Personal injury - Jurisdiction - Undue delay – Statute of Limitations - Inordinate and inexcusable delay – Risk of unfairness - Interests of justice

Facts: On the 10 ^th May 2000, the plaintiff was involved in a serious road traffic accident in Majorca, Spain. On her return to Ireland, she instructed the defendant to pursue a personal injury claim against the individual who she claimed was responsible for her injuries. As the accident occurred in Spain and involved a putative defendant who was resident there, the action had to be pursued in the Spanish courts. However, the proceedings were not commenced within the Spanish period of limitation for such an action. The plaintiff brought proceedings against the defendant for professional negligence on the basis that the defendant failed to initiate the personal injury action in Spain in a timely fashion. In response, the defendant argued that she had engaged solicitors in Madrid to bring the action and that any claim for professional negligence should be brought against them.

On the 19th September 2012, the defendant brought a motion for the proceedings to be struck out on the ground of undue delay. The proceedings were commenced on the 19th September 2005 but were not actually served on the defendant until 3rd August 2006. A statement of claim was then served in December 2006 and the defendant immediately responded by sending a notice for particulars. A response to this notice was prepared on July 2009, but was not served until December 2012 due to an alleged oversight by the plaintiff”s solicitors. Similarly, the plaintiff had failed to serve in a timely fashion a reply to the defendant”s defence, a reply to a notice to admit facts, and all discoverable material. The plaintiff argued that many of the delays in the case could be attributed to her difficulties in securing her medical records from a particular hospital, as well as obtaining a medical report from the consultant orthopaedic surgeon who treated her on her return from Spain. These medical records and the medical report were ultimately received, and the plaintiff pointed out that if the motion was rejected, the case would be ready for trial.

Held by Hogan J that it was clear that the plaintiff had brought proceedings within the six year limitation period for professional negligence actions as the time period would have only commenced in May 2001 when the Spanish limitation period for personal injury actions expired. It was further noted that the defendant had not claimed that the delays in the case had prejudiced her in defending the proceedings which was perhaps because she had been on notice since July 2005 that a claim for professional negligence might be brought against her. The court was also satisfied that some of the delays could be attributed to the plaintiff”s difficulties in securing medical notes and a report in support of her claim. However, the court also noted that it was unacceptable that the defendant had had to endure allegations of professional negligence hanging over her since July 2005.

It was held that the test to be applied to the facts of the present case to measure the delay was that formulated in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459. In that case, it was held that in assessing a delay in a case, the court had to consider whether the delay has been inordinate, whether such delay was inexcusable, and even if the delay has been inordinate and inexcusable, what possible action of the court was in the interests of justice.

The delay in the present case was determined to be inordinate and inexcusable as much of the delay could not be accounted for by the plaintiff. However, in deciding what was in the interests of justice, it was held that the proceedings would not be struck out at that stage due to the particular facts of the case. It was clear that the plaintiff had been seriously injured in the road traffic accident in Spain. It was equally clear that the defendant had not been prejudiced by the substantial delays in the case. However, the court was not prepared to dismiss the defendant”s motion and instead adjourned it for 2 months during which the plaintiff”s conduct would be scrutinised and would be decisive of what action the court would ultimately take in regards to the motion. The adjournment was also granted on the condition that the plaintiff applied for a date for the hearing of the claim within a short period. She was also instructed to offer the defendant the option of separate hearings on liability and damages.

Motion adjourned.

1 1. This application to strike out the present proceedings on grounds of undue delay raises once again the difficult Question concerning the balance which must be struck between two constitutionally inspired interests, namely, the right of access to the courts on the one hand and the right to have proceedings determined within a reasonable time on the other. The issue in the present case arises in the following way.

2 2. On the 10 ^th May, 2000, the plaintiff was involved in what appears to have been a serious traffic accident in Majorca while in Spain. Upon her return to Ireland, her case is that she retained the defendant solicitor to pursue a personal injury claim arising from this accident. There seems little doubt but that such a claim would have to have been pursued in the Spanish courts, not least as the putative defendant was then domiciled in Spain for the purposes of Article 2 of the Brussels Convention (which was the then applicable legal regime). It also seems clear that the Spanish limitation periods are shorter than ours ndash;typically one year for a case of this kind - and that no such proceedings were brought within time in Spain.

3 3. The present claim is for professional negligence, in that the plaintiff, Ms. Casserly, contends that her erstwhile solicitor and defendant, Ms. O'Connell, failed to take steps to have the claim processed in the Spanish courts in a timely fashion. In her defence Ms. O'Connell contends that she engaged Spanish lawyers in Madrid for this purpose and that any claim the plaintiff might have for negligence lay against those lawyers.

4 4. That, however, is not the issue directly before me now. I am rather instead required to consider whether, by reference to the defendant's motion of 19 ^th September 2012, the proceedings should be struck out by reason of undue delay. The proceedings were actually commenced on 19 ^th September, 2005, but were not actually served on the defendant until 3 ^rd August, 2006. A statement of claim was then served in December, 2006.

5 5. The defendant immediately served a notice for...