In Yvonne Casserly v Mary O'Connell, Practising as
O'Connell & Co Solicitors [2013] IEHC 391, the High
Court, in the context of an application to strike out the
plaintiff's proceedings on the grounds of undue delay,
considered the difficult question as to the balance that must be
struck between two constitutionally inspired interests; namely, the
right of access to the courts as against the right to have
proceedings determined within a reasonable time.
Facts
In mid-2000, the plaintiff was involved in a serious road traffic
accident in Spain and, upon her return to Ireland, she instructed
the defendant solicitor (the
"defendant") to initiate a personal
injury claim on her behalf. 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 and the
plaintiff took an action against the defendant for professional
negligence.
The defendant asserted that, as she had engaged Spanish lawyers to
bring the original action, any claim should be brought against
them.
Delay
The professional negligence proceedings were commenced on 19
September 2005 but were not served on the defendant until 3 August
2006. A Statement of Claim was served in December 2006.
Thereafter, the defendant immediately served a Notice for
Particulars.
Replies to that Notice for Particulars were prepared in July 2009,
but through an oversight, were not served on the defendant's
solicitors. Thus, while the Defence was delivered in April
2008, a Reply was not furnished until November 2011.
An Order for Discovery was made by the Master of the High Court on
30 June 2009 and eight letters were sent by the defendant's
solicitors to the plaintiff's solicitors between March 2010 and
February 2012 reminding the plaintiff of her obligation to make
discovery. Despite repeated assurances, discovery was only made in
February 2012. The failure to make discovery in a timely
fashion, the court indicated, severely handicapped the
defendant's endeavours to have the case set down for
trial.
The court also noted that a number of the delays arose from
difficulties encountered in securing copies of the plaintiff's
medical records.
Relevant principles
The legal principles governing undue delay were
established in the Supreme Court decision in Primor plc v
Stokes Kennedy Crowley ([1996] 2 IR 459).
The Primor principles require the court to ask:
(a) Was the delay inordinate?
(b) If the delay was inordinate, was it excusable?
(c) Even if the delay was inordinate and inexcusable, where does
the balance of justice lie?
The facts which Hogan J considered called for special attention,
insofar as the application of the Primor principles was concerned,
were as follows:
(i) If one accepted that the relevant Spanish limitation
period could not have expired prior to May 2001 (one year following
the accident), it follows that the six year limitation period
governing professional negligence in Ireland could not have expired
prior to May 2007. Thus, the present proceedings, even if
delayed, were commenced well within time.
(ii) The defendant knew that a claim might be brought against her
since at least July 2005, which was a significant period. The
judge also noted that there was no suggestion made that the
defendant could not defend the claim on its merits or that the
delay had hampered her ability to defend.
In addition to the application of the Primor principles, Hogan J
noted the implications of the Supreme Court decision in
McBrearty v North Western Health Board ([2010] IESC
27). In that case, it was confirmed that there existed a
jurisdiction distinct from that under the Primor principles to
strike out proceedings for undue delay which could be exercised,
even in the absence of fault on the part of the plaintiff, while
such delay had compromised the fair resolution of the
proceedings. He did not feel that this test was applicable in
the present case because the defendant had had notice of the claim
for nine years.
Further he commented that the risks to a fair trial caused by the
delay here were minimal as it had not been said that the
defendant's ability to defend proceedings had been
significantly compromised.
(iii)The court noted that much of the delay had been caused by
factors outside the plaintiff's control; the practical
difficulties and bureaucratic delays encountered in securing
hospital records and an up to date medical report from her
surgeon.
One factor militating against the plaintiff was that the defendant
had had allegations of professional negligence hanging over her for
the best part of eight years. Such allegations impacted on
the defendant's good name and she was constitutionally entitled
to have this protected. The plaintiff countered that the
defendant had retired from practice and thus the allegation did not
have the same serious implications for the defendant's personal
and professional reputation as if she were still in practice.
Hogan J, however, stated that it was a reproach to the legal system
that the claim had not been dealt with for eight years.
Application of
Primor
The court held that the first two Primor questions could
be answered affirmatively since the delay "quite plainly
was by any standards both inordinate and
inexcusable". The judge stated that the entire
proceedings were characterised by inactivity and an unaccountable
failure to attend to straightforward matters. This delay, he
felt, was especially "grievous" given the implications
which the proceedings had for the defendant's constitutional
right to a good name. As to the balance of justice, Hogan J
indicated that he had "without hesitation" come to the
conclusion that the balance of justice required that the
proceedings should not be struck out at that stage on the basis
that:
(i) the plaintiff was seriously injured in the accident;
(ii) the delay, while significant, had not appreciably compromised
the defendant's ability to defend the proceedings on the
merits; and
(iii) the delay had not otherwise impeded the court's ability
to arrive at a fair determination of the case based on objective
evidence.
Although the court did not strike out the plaintiff's claim, in
order to ensure that there was no further delay, it opted to
adjourn the defendant's motion to strike out the proceedings
for two months. The plaintiff's further conduct of the
litigation remained under intense scrutiny.
It was a condition of the adjournment that the plaintiff was
required to reply within a short period for a date for the hearing
of the claim and the plaintiff had to pay the costs of the
motion.
The case represents a clear statement as to the seriousness with
which courts approach allegations of professional negligence and
the constitutional import afforded to such claims. Further,
it highlights the difficulties that can be encountered when
contesting such claims.
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