Striking Out Proceedings for Inordinate and Inexcusable Delay
In Yvonne Casserly v Mary O'Connell, Practising as O'Connell & Co Solicitors1, the Irish 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.
The legal principles governing undue delay were established in the Supreme Court decision in Primor plc v Stokes Kennedy Crowley2.
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:
(a) 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.
(b) 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 Board3. 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.
(c) 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:
(a) the plaintiff was seriously injured in the accident;
(b) the delay, while significant, had not appreciably compromised the defendant's ability to defend the proceedings on the merits; and
(c) 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.
1  IEHC 391
2  2 IR 459
3  IESC 27