Ireland: Striking Out Proceedings For Inordinate And Inexcusable Delay

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.


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.


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.

For further information please speak with your usual Maples and Calder.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions