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The Court of Appeal recently dismissed a Medical Negligence claim on the basis that the plaintiff had failed to obtain an expert report, a number of years after the claim had issued.
In O’Neill v Birthisle [2024] IECA 17, the claim for Medical Negligence was dismissed as the plaintiff had not obtained an expert report, eight years after the original claim had issued.
Background
Proceedings relating to a procedure that the plaintiff had as a child were issued by the plaintiff on 7 December 2015. She claimed that the defendant’s failure to identify a staple in her leg resulted in her suffering ongoing pain and swelling. She pleaded that these symptoms were only alleviated two years later, following a further procedure to remove the staple.
Inordinate and Inexcusable Delay
Citing inordinate and inexcusable delay, on 17 December 2021, the defendant issued a motion seeking an order dismissing the plaintiff’s claim for want of prosecution, pursuant to Order 122 rule 11 of the Rules of the Superior Courts.
Following a change of solicitor in 2022, the plaintiff’s new solicitor stated that the plaintiff’s understanding was that her previous solicitors were obtaining an expert report and therefore her claim should not be struck out. Replying by way of affidavit, the defendants believed that it was an abuse of process to commence a professional negligence action, without first ascertaining reasonable grounds to do so.
High Court
The High Court found that the failure to obtain an expert report after a period of eight years was unfair to the defendants. Heslin J was satisfied that the delay by the plaintiff was both inordinate and inexcusable. As such, he was of the view that a fair trial was no longer possible, and the case was struck out.
Court of Appeal
The plaintiff appealed to the Court of Appeal. Mr. Justice Noonan identified that the High Court was wrong to dismiss the claim where the defendant had failed to provide evidence that it was prejudiced by the delay. However, the court was baffled that the plaintiff was unable to show she had a case as it was over eight years since the commencement of the action.
Mr. Justice Noonan found that the delay was both inordinate and inexcusable and constituted ‘the clearest prejudice to the defendant’ as it had seriously hampered the defendant’s ability to investigate this claim. On the balance of justice, he concluded that the case should be dismissed.
Conclusion
The courts do not approve of delays in progressing cases, either by the plaintiff or defendant. In cases of significant delay, the court will often consider striking out the action due to the potential to prejudice either party.
Further Information
To find out more about making a Medical Negligence claim, please contact Avril Scally, Partner and Head of our award-winning Medical Negligence & Personal Injury Team.