O'Neill v Birthisle (Approved)

In the present case I can find no causal connection. I am entirely satisfied that this is delay which the facts do not present any excuse for.

I reach these findings very conscious of the submissions made by Counsel who contends that the Plaintiff is completely blameless in relation to delay. I do not doubt the sincerity with which that submission is made, but it seems to me that, with respect, it is a submission which is made in an evidential ‘vacuum’. In other words, it may or may not be the case that the Plaintiff is entirely blameless, but there is simply inadequate evidence before this Court of what might be called the ‘granular detail’ from the Plaintiff, as to (i) what she did or did not do; (ii) what she did or did not instruct; (iii) what she did or did not know and; (iv) what she was or was not advised of.

It simply is not open to this Court to hold on the evidence before it that as a matter of fact the Plaintiff is completely blameless, and, therefore, the court is thrown back on the well-established and uncontroversial proposition that these were the Plaintiff’s proceedings and she bore the obligation to ensure that they were progressed with due expedition. That has not happened, and it seems to me that no causal connection between anything said to constitute an explanation, and the delay, has been made.

As to again the valiant efforts made by counsel for the Defendant to point to explanations, reference was made to the amendment of the proceedings on 12 April 2018 and to the notices of change of solicitors. It was also pointed out that the current solicitors came on record in March of this year. These, with respect, are not explanations for the delay which, at a minimum is 6 years of post–commencement delay (but to my mind, significantly more), piled on top of pre–commencement delay and a ‘late start’ to proceedings.

In submissions, it was said that there was a great deal of difficulty in obtaining a medical report, or that was the thrust of the submission, and there was an exchange at that point between myself and counsel. I made clear that I did not feel it was fair to counsel to be asked to be the conduit for evidence of fact, particularly in circumstances where, within a matter of a day or two ago, the position has been averred to by the solicitor currently on record for the Plaintiff. It therefore seems to me that there is no evidential underpinning for the submission that there were any significant difficulties in obtaining a medical report at any stage. Those difficulties, significant or otherwise, are simply not averred to. What is before the court is merely a relatively sparse chronology, but the startling facts are that (i) just as no medical report was obtained prior to the proceedings issuing; (ii) it was not obtained in the eleven months prior to the proceedings being served; (iii) nor was it obtained at any point thereafter; (iv) it is unknown entirely when it was first sought, other than; (v) the most recent request which came, it appears, some nine months after the current solicitors came on record and; (vi) to this day, the seeking - with, in my view, less than the requisite sense of urgency - has still not produced a report; (vii) nor is there any evidence that any alternative clinician has ever been asked for a report given the difficulties if any (because they are not expressed by the clinician herself) encountered.

For the sake of clarity, lest it not be already clear, I am entirely satisfied that this is both inordinate and inexcusable delay.

Counsel for the Defendant draws this Court’s attention to a range of authorities, all of which I have considered. He relies in particular on the Court of Appeal’s decision (Donnelly J.) in Sullivan v. HSE [2021] IECA 287 , in particular para. 110, in which the learned judge stated the following:-

It seems to me that those last observations by the learned judge in O’Sullivan were, with respect, to the approach per the O’Domhnaill principles and, as I said at the outset of this ruling, under the O’Domhnaill test, nothing less than fair trial prejudice needs to be established if dismissal is to be justified. In other words, the moving party (the Defendant in this case) must establish per O’Domhnaill that there is a real risk of an unfair trial or unjust result, and nothing less will be sufficient to justify dismissal. But that is not the ‘lens’ through which this Court must examine this matter according to the primary approach in Primor; and per the Primor principles where a Defendant has established both inordinate and inexcusable delay, as this Defendant has , the authorities make clear - as touched on earlier - that moderate prejudice is sufficient to ‘tip the scales’ in favour of dismissal. So, it does not seem to me that O’Sullivan offers any ‘life raft’ to the Plaintiff in the present case.

I have undertaken the balance of justice assessment very carefully and I have done so very conscious of the constitutionally-protected right of access to the courts to bring and, indeed, to defend litigation. I am conscious, therefore, that if these proceedings are dismissed, it will create a terminal prejudice for the Plaintiff. However, it is fair to say that this cannot be the determinative factor in an application such as this type. Why? Because terminal prejudice is always facing a Plaintiff who finds themselves a respondent in an application of this type. If terminal prejudice, regardless of the weight that this Court undoubtedly is giving it, were always an answer which ‘tipped the scales’ in favour of allowing the proceedings to continue, no proceedings would ever be dismissed on delay grounds.

In conducting the balance of justice assessment, it is also fair to say that it has to be done in the factual matrix, and this speaks to the principle articulated in Superior Court authorities that the court must give a bespoke response in every application of the present type. In other words, guidance in terms of what length of delay occurred in other cases, and what might be called the ‘moving parts’ in other balance of justice assessments are of very limited use.

This Court has to consider the particular facts and circumstances in the present case, and those particular facts involve a situation where the personal injuries summons did not make any reference to O. 1A, r. 6 of the RSC. It was not on its face (nor was it according to any correspondence sent at the time by the then–solicitor for the Plaintiff) a ‘protective writ’ or one issued in that context. There is simply not a hint in the personal injuries summons that there is no medical expert’s report. It could not conceivably have taken to be a protective writ.

As we now know, many years after it was issued, and in the absence of any progress and in the absence of any explanation for the lack of progress, we are in a situation where the entire basis for the proceedings being issued would appear to be what a solicitor understands that a treating doctor advised the Plaintiff, namely, that something in a foot may have caused her complaints. As examined earlier, that does not at all speak to the question of a breach of duty.

This is a motion which issued in December 2021 and it does seem to me to be relevant in the balance of justice assessment that, in real terms, the Plaintiff has had more than a year and a half to ‘put her house in order’ yet, even now, there is no medical expert’s report. That seems to me to weigh heavily against these proceedings being permitted to proceed.

Earlier, I touched on the prejudice which, in the manner averred by Ms. Kelly arises, namely, a complete inability on the side of the Defendant even to investigate the claim. That arises because, like ‘dominos’, the claim is not articulated in a manner capable of being understood, and the ‘domino’ preceding that is what we now know to be (but only know as a result of the present motion) the complete absence, at any stage, of a medical expert saying that there is a credible basis for negligence proceedings. That is real prejudice, i.e. the inability to investigate an unarticulated claim. That weighs extremely heavily in favour of dismissal.

Adding further weight to dismissal, is the fact that this is a case which could not conceivably come on for years. In fact, it is not even possible to say whether and, if so, when there would be a trial. I say this because of the previous analogy. All roads lead back to an expert saying that there is a basis for negligence being asserted, yet no such report is even now available. For that reason, it is conceivable that, once available, the putative claim will evaporate. Even if it did not evaporate, and even if in that theoretical scenario it was ultimately particularised, we now know that such particulars, even if they were available as “ early” as the end of 2023, would be with respect to wrongs said to have occurred in the year 2000, i.e. 23 years earlier, almost a quarter of a century ago. It would only be of course at that stage that meaningful investigations could be carried out and I do not believe it is a ‘stretch’ to infer that such person or persons as may be said by the Plaintiff to have carried out the treatment of which she complains, which it now appears was carried out in the year 2000, may well either have passed on or be unavailable or, and I will presently come to this, have little or no recollection of for example what was said a quarter of a century earlier. This brings me back to the topic of witness evidence which we know from para (f) of the personal injuries summons, is being relied on by the Plaintiff.

I am entitled to hold, safely, that the delay on the Plaintiff’s part even (if one were to confine that delay to a period of six or seven years of post–commencement delay only) has in all likelihood given rise to a degrading of memories, prejudicing to a material extent the ability of such witnesses as yet unidentified to give meaningful assistance at some future point as yet unknown to a trial judge. This is very real prejudice. This Court feels entirely safe to say that it at least constitutes the moderate prejudice which is of relevance in the Primor approach.

In my view, it is also prejudice which meets the O’Domhnaill test. It seems to me that this Court can hold on the evidence before it that there is a real risk of an unfair trial or unjust result and that, even if there was no culpable delay, and even if there was no inexcusable delay, I feel entirely satisfied that per the O’Domhnaill principles, this is a claim which must be dismissed.

There is a phrase used in the jurisprudence that it would ‘put justice to the hazard’. I am entirely satisfied that it would put justice to the hazard were this Defendant to be required to meet this claim, and I use “claim” in the very loosest of senses because it is not at all clear what claim the Plaintiff has articulated or whether there is indeed the credible basis for any claim.

The reality that no other clinician, apart from Ms. Bach, is, it appears, on the point of providing any report (and that stems from choices made by the Plaintiff) is something which also weighs in favour of dismissal. It is true that in Flynn v. Bon Secours [2014] IEHC 87 the court allowed a further period of time within which a medical expert’s report might be obtained by the Plaintiff in that case. The facts in this application are utterly different, and as I observed earlier, the Plaintiff has been squarely on notice (since correspondence sent over 6 years ago, in 2017) of the need to ‘mend her hand’ regarding an expert report. Delay with respect to obtaining an expert’s medical report which, for at least for six years was known to be essential, is something which must come into the balance of justice assessment. It weighs in favour of dismissal and utterly rules out, to my mind, that justice requires a further period of time. This is because, in truth, every reasonable opportunity has already been afforded to the Plaintiff by a Defendant which has conducted itself with patience and professionalism, but notwithstanding that, still has no idea of the case it is expected to meet, nor does, in truth, the Plaintiff.

Insofar as there was a submission made that the Defendant has delayed, the facts utterly undermine this. There was absolutely no acquiescence on the part of the Defendant and I use that term because it is of course referred to in the jurisprudence flowing from the Primor test. At no point could it be said that the ‘ball’ was sitting inert in the Defendant’s ‘court’, it was the Defendant who pressed at all material times, and it is not necessary to recap those steps taken by the Defendant .

At no point prior to the present motion being issued did the Plaintiff choose to inform the Defendant that, first, the wrongs complained of dated back over two decades and, second, that there was no expert’s report underpinning the personal injuries summons. That also to my mind weighs very heavily in favour of dismissal.

The authorities examining the proper approach under the Primor principles emphasise that, to avoid dismissal in circumstances where inordinate and inexcusable delay has been established, it behoves the Plaintiff to put forward a material consideration or considerations of a weighty type which would ‘tip the balance’ in favour of the proceedings being allowed to continue. That is not for a moment to suggest that the Defendant does not have the obligation to meet the burden of proof under all three limbs of Primor . They do and they have. My point is that, try as I might, I have been unable to find any consideration or factor, still less anything weighty to place in the scales in favour of the proceedings being permitted to continue.

For the reasons given, I am entirely satisfied that the Defendant has met the burden of proof with respect to all three elements of the Primor test and the balance of justice, without doubt in my view, favours dismissal.

Without prejudice to that, I am also satisfied that the test per the O’Domhnaill principles has been met and it would be inimical to justice if this Court did not bring an end to these proceedings at this stage.

Finally, I want to express my thanks to both counsel. They articulated their respective clients’ positions with great skill, clarity, and professionalism. However, submissions must yield to facts, and it is the facts which emerge from the evidence before this Court which have resulted in this decision.