Supreme Court dismisses appeal for want of prosecution due to inordinate and inexcusable delay in civil proceedings.

[2001] IESC 105

THE SUPREME COURT

190/2000

Denham J.

Murray J.

McGuinness J.

BETWEEN/

JAMES BRENNAN

PLAINTIFF / APPELLANT

and

NOEL FITZPATRICK, GALVIA HOSPITAL LIMITED and COMMUNITY HOSPITALS (IRELAND) LIMITED

DEFENDANTS

Judgment of the Hon. Mrs. Justice Denham delivered on the 23rd day of November, 2001.

1. This is an appeal by James Brennan the plaintiff/appellant, hereinafter referred to as the plaintiff, against an order of the High Court

(Johnson J.) dismissing his claim for want of prosecution. The plaintiff has also brought a motion for liberty (i) to adduce fresh

evidence and evidence in substitution for that already given, and (ii) to amend the notice of appeal.

2. The first matter for consideration is the appeal of the plaintiff from the order of the High Court that the plaintiff's claim do stand

dismissed for want of prosecution for failure to serve a new Notice of Trial after it had been struck out on the 4th day of December,

1998.

High Court Action

3. The plaintiff served a plenary summons on 16th June, 1989 making a claim against the defendants in relation to events which

occurred in June, 1986. On the 28th November, 1990 the Statement of Claim was delivered by the solicitors acting for the plaintiff. It

was pleaded in the Statement of Claim:

“2. On or about the month of June 1986 the Plaintiff entered the First Named Defendants Hospital as an In-patient, for

investigations regarding the Plaintiffs complaints of nocturia, frequency and an altered bowel habit. The aforesaid

investigations were to consist of a colonoscopy, cystoscopy and bladder distention (sic) under anaesthetic. On recovery

from the anaesthetic the Plaintiff had severe pain in his bladder area together with acute urinary retention after the

cystoscopy.

3. In breach of their duty to the Plaintiff the Defendants their servants or agents negligently failed and/or refused and/or

neglected to treat the Plaintiff for his complaints as a result whereof the Plaintiff suffered and endured much pain and

suffering and sustained loss and damage.”

4. The particulars of negligence and breach of duty pleaded were:

“(a) Failed to observe or to heed or to take any reasonable steps to investigate the complaints of the Plaintiff as to his

condition.

(b) Failed to pass a urinary catheter either in time or at all to alleviate his discomfort and pain and especially after twenty

hours had passed with no urination.

(c) Failed to palpate or check his bladder either in time or at all.

(d) Failed to diagnose that he was suffering from acute urinary retention.

(e) Attempted to have the Plaintiff void spontaneously without catheterisation.

4. By reason of the matters aforesaid the Plaintiff suffered severe pain, personal injuries and suffered loss and damage.”

5. The particulars of injuries claimed were:

“PARTICULARS

The plaintiff was in acute pain for the period, post investigation, while in hospital. He left Galvia Hospital and two and a

half hours later was admitted to Sligo General Hospital where he received emergency treatment and on admission the

following day was treated for his bladder complaint by way of catheterisation over a period of four days. Whilst in Galvia

Hospital he had been in severe pain, was nauseated and weak. He had to spend four days in hospital in Sligo. His

convalescence was delayed and he suffered more pain and trauma than he would otherwise have done. The onset of

further sequelae cannot be ruled out.”

6. No particulars as to further sequelae have been pleaded.

7. A motion for particulars raised by the defendants was responded to in 1992 after a motion by the defendants. The defence on

behalf of all the defendants was filed on the 8th March, 1996. During 1992 to 1996 there was considerable correspondence between

the solicitor for the plaintiff and the solicitor for the defendants. In May, 1996 the Notice of Trial was served. The plaintiff did not

take steps to have it set down for trial. In December 1998 the Notice of Trial was struck out. No new Notice of Trial has been served.

Legal Representation

8. Initially the plaintiff was represented, until February 1998, by Messrs. Foley & Mullery, Solicitors. There was then a gap in legal

representation. From the 14th July, 1999 the plaintiff was represented by Damien M.P. Tansey. However, on this appeal the plaintiff

was a lay litigant.

Motion to Dismiss for Want of Prosecution

9. The defendants brought a motion to dismiss for want of prosecution and grounded it on the affidavit of Catriona O’Mara, solicitor in

the firm of solicitors Arthur Cox who are the solicitors on record for the three defendants. Catriona O’Mara deposed:

“3. As appears from the Plaintiff’s Statement of Claim, this is a medical negligence action. In it, the Plaintiff claims that in

the month of June, 1986 he was referred to Galvia Hospital under the care of the First Named Defendant for the purposes

of undergoing colonoscopy, cystoscopy and bladder distension under anaesthetic.

4. Furthermore, he alleges that after undergoing the aforesaid procedures he had severe pain in his bladder. The Plaintiff

alleges that the Defendants were negligent in failing to heed or investigate his complaints and that they failed to pass a

urinary catheter in time or at all to alleviate his discomfort. In particular he states that he suffered acute pain and that

two and a half hours after he left Galvia Hospital on the 20th June, 1986 he was admitted to Sligo General Hospital where

he received emergency treatment by way of catheterisation over a period of four days.

5. The Defendants have filed a full Defence and whilst there is no doubt that the Plaintiff was complaining the Defendants

contend that there is no foundation for his allegation that his complaints were either ignored or not properly investigated.

In fact, as the Plaintiff is or ought to be aware, he was seen by the First Named Defendant and others on a number of

occasions and when the First Named Defendant recatheterised him, he found only a relatively small amount of urine in his

bladder.

6. The proceedings issued out of the office of this Honourable Court in 1989 but Notice of Trial was not served until the

month of May, 1996. Thereafter the Plaintiff appears to have discharged his original solicitors and took over carriage of

the proceedings himself in the month of February, 1998. In the month of July, 1999 or thereabouts he appointed Damien

Tansey & Company, Solicitors to act on his behalf. Indeed, Messrs. Damien Tansey & Company Solicitors served a Notice

of Change of Solicitor and Notice of Intention to Proceed in the month of July, 1999. In this regard I beg to refer to a true

copy of the said Notice of Change of Solicitor and Notice of Intention to Proceed which I have pinned together and upon

which marked with the letter “A” I have endorsed my name thereon prior to swearing hereof.

7. However, no further step has been taken by the Plaintiff or his new firm of solicitors. Furthermore the Plaintiff’s Notice

of Trial was struck out on the 4th December, 1998 and no new Notice of Trial has been served.

8. The Defendants are most anxious to bring some finality to bear upon this case. The complaint the subject matter of

this suit relates to events which took place over thirteen and a half years ago and mere existence of this action against

professional people causes them considerable distress.

9. I would respectfully submit to this Honourable Court that the Plaintiff has been guilty of inordinate and inexcusable

delay in the prosecution of this claim and that in the absence of any good reason for the delay the Plaintiff’s claim ought

to be dismissed for want of prosecution.”

10. The reply on behalf of the plaintiff was by way of affidavit sworn by Damien M.P. Tansey, Solicitor. He deposed:

“3. I say that Ms. O’Mara is correct when she indicates that Notice of Trial was served in or about May 1996, and that

the matter did not progress between May of 1996 and July of 1999. However it would equally appear that during that

period no steps were taken by the defendant to deal with the matter and they in fact participated in this delay. From a

review of the file I am unaware of any motion brought by the defendant during that period.

4. The position is that this firm was approached by the plaintiff in or about July of 1999 to advise him in relation to this

case and to act on his behalf. We immediately engaged on a review of the file, which was relatively substantial at this

stage.

5. On a review of the file it was decided to seek a further medical opinion from Mr. David Ralph a distinguished Consultant

Urologist based in the United Kingdom. A request was made for this report in or about the month of February 1999. As yet

we have not received the report from Mr. Ralph, but we expect to have it shortly.

6. I therefore say that Ms O’Mara is incorrect in paragraph 7 of her affidavit to state that no step has been taken by my

firm as the plaintiff’s new firm of solicitors. Rather we are trying at all speed to assemble an appropriate medical opinion so

that we can properly advise the plaintiff, prior to the service of a new Notice of Trial. In addition I would say that while

there has been overall delay in relation to this case, the Notice of Motion was issued only some six months after this firm

had become involved, and we should be allowed an opportunity to get in this information so as to properly advise the

plaintiff in relation to the case.

7. In all of the circumstances I therefore pray this honourable Court for an order refusing to grant the relief sought in the

defendants’ motion.”

11. The report of the High Court (Johnson J.) judgment states:

“This case coming on before me on 20th March, 2000 having heard the Counsel on both parties and having read the

Affidavits I came to the conclusion that there had been unreasonable and inordinate delay on behalf of the Plaintiff in

bringing this case forward and therefore exercise (sic) my discretion and struck out the case for want of prosecution.

There is nothing further I can add to the matter.”

12. Against that judgment the plaintiff now appeals. The plaintiff grounds his appeal on the following matters:

“The plaintiff received a letter from his solicitor in February 2000 telling him that an application by the Defendants to

strike out the claim would be heard on 6th March, 2000 and he was not informed then or in a subsequent consultation

with his solicitor on the 2nd March, 2000 of the Order that was sought against him namely to dismiss the Plaintiff’s claim

for want of prosecution and in particular he was not informed that an Order sought was to dismiss the plaintiff’s claim for

want of prosecution for failure to serve a new Notice of Trial after same was struck out on 4th December, 1998, he did

not know of the striking out of the Notice of Trial in December, 1998 and he did not have knowledge of the content of the

affidavits of Catriona O’Mara filed on the 14th February, 2000 and of Damien M P Tansey filed on the 6th March, 2000 and

that therefore the Plaintiff had not the opportunity to defend against the Order that was sought and was given.”

13. The plaintiff also relied on the following:

“1(a) That the following was not before the learned judge:

The efforts of the Plaintiff in correspondence with solicitors for the Defendants to progress the case in raising

matters regarding the records and discovery, and the response he received and that it was the Plaintiff’s position

that discovery had not been met and that the Defendants had said they were going to set the case down for trial

and had taken steps to do that but did not proceed.

2(a) That a bacteriology report dated 18th June, 1986 disclosed on discovery and produced by the Defendants is not an

authentic document as it does not relate to the Plaintiff though it bears his hospital no. and that the Defendants did not

make full and complete discovery of any pathology reports.

(b) That the Second Defendants did not disclose the date of destruction of the original records and that the microfilm

disclosed on discovery cannot be relied on.

(c) That there was not full and complete, or any, discovery of “nursing notes” in that the information therein is only

available without warranty.

(d) That the recent transcript of the bacteriology report provided to the Plaintiff is wrong.

(3) That if evidence herein was before the Court it would likely have had an effect on the outcome.

(4) That the inclusion of the bacteriology(sic)report in the “medical records” and the version appearing as “sputum” and

the letter maintaining that the bacteriology report did relate to the Plaintiff, and the transcript of the bacteriology report

provided by the Defendants was severally and jointly to conceal that there was non disclosure of other report(s); and

that the non disclosure of the other report(s) hindered and obstructed the Plaintiff’s case.

(5) That the Plaintiff has an arguable case on the merits.”

14. The plaintiff has appealed against the order of the High Court of 20th March on the grounds:

“1. The Plaintiff did not have an opportunity to defend with knowledge of the Order sought against him; and that the

Plaintiff does not have knowledge of the content of the affidavits of Damien M P Tansey filed on the 6th day of March,

2000 and of the affidavit of Catriona O’Mara filed on the 6th day of March, 2000.

2. The defendants did not make full and complete discovery and a document released was not authentic.

3. That on merit the Plaintiff has a case.”

Law

15. The law in relation to an application to dismiss proceedings for want of prosecution is well settled. It was restated

comprehensively in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. The head note of that judgment sets out the principles

of law relevant to an application to dismiss an action for want of prosecution:

“(1) that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests

of justice so required;

(2) that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that

the delay had been inordinate and inexcusable;

(3) that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether,

in its discretion, on the facts the balance of justice was in favour of or against the case proceeding;

(4) that when considering this obligation the court was entitled to take into consideration and have regard to -

a) the implied constitutional principles of basic fairness of procedures,

b) whether the delay and consequent prejudice in the special facts of the case were such that it made it unfair to

the defendant to allow the action to proceed and made it just to strike out the action,

c) any delay on the part of the defendant, because litigation was a two party operation and the conduct of both

parties should be looked at,

d) whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in he

plaintiff’s delay,

e) the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the

action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a

relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the

weight to be attached to such conduct depending on all the circumstances of the particular case,

f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to

cause or had caused serious prejudice to the defendant,

g) the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that

merely caused by the delay, including damage to a defendant’s reputation and business.”

Decision

16. The plaintiff is a lay litigant in this appeal. He has been represented, however, by two firms of solicitors earlier in these

proceedings. The issue for decision is whether the High Court erred in the exercise of its discretion in dismissing the claim for want of

prosecution.

17. There is no doubt but that there has been inordinate delay in this case. The question to be determined is whether it is

inexcusable. The main excuse given before the High Court was that a medical report was being awaited from a consultant in the

United Kingdom. However, obviously there had been a medical opinion obtained when these proceedings were launched. Moreover the

plaintiff’s then solicitor served Notice of Trial in May, 1996 and the medical report in question was not sought until February, 1999 and

had still not been obtained at the time of the swearing of the affidavit on March 2nd, 2000 by the plaintiff’s solicitor, Mr. Tansey.

Thus the matter of seeking an additional medical report was not sufficient excuse in the circumstances for the delay in obtaining a

second Notice of Trial.

18. The plaintiff also complained about the documents furnished on discovery. The defendants submit that they have made full

discovery. A problem on discovery could have been dealt with by either of the solicitors for the plaintiff. Such a submission in the

circumstances of this case is not adequate to resist the motion.

19. The plaintiff submitted that he did not know of the actual orders that were being sought or of the affidavits filed on behalf of

himself and on behalf of the defendants. This submission relates to a time when the plaintiff had legal representation. He was

represented by his solicitor in the matter. Thus this is also not an appropriate excuse for the delay.

20. The plaintiff has advanced no reasonable reason as to why the High Court exercised its discretion incorrectly. On the facts of this

case as set out in the pleadings herein it is clear that there was inordinate delay which was inexcusable. The inordinate delay has

given rise to a substantial risk that it is not possible to have a fair trial and the delay is likely to have caused serious prejudice to the

defendants. On balance the justice of the situation was in favour of dismissing the proceedings. Consequently I am satisfied that the

High Court did not err in the exercise of its discretion.

21. On the 14th November, 2001 by motion the plaintiff sought that further facts and information be put before the courts. In the

circumstances it is unnecessary to proceed to consider this motion. However, I have read carefully all the papers filed by the plaintiff

and am satisfied that there is no requirement in justice that this motion proceed.

22. Today, the 23rd November, 2001, the plaintiff has sought to bring by motion a submission additional to his written submissions at

the hearing on 14th November and also to exhibit a document. He sought to bring to the attention of the court a matter arising from

the hearing of the appeal. The plaintiff has deposed that at the hearing he was given every opportunity to fully present his case, but

pleaded that he lacked experience and he sought to make the new application. The plaintiff referred to his earlier reference that the

solicitors for the defendants had said that they were going to bring the case to trial. He referred to a letter of 21st October, 1997

from Arthur Cox to the plaintiff’s then solicitors, Foley and Mullery. That letter states:

“Our clients are anxious that this matter would be disposed of without further delay and we will, as previously mentioned,

be applying for a date for hearing early in the New Year.

There are four Orders for costs outstanding as against the Plainitiff, (sic) your client James Brennan. We enclose herewith

copy of these Orders dated the 29th of November 1990 (2), the 12th October 1992 and the 22nd of March 1993.

With respect, your client’s claim appears to be without merit and our instructions are to fully defend the claim. At the end

of the hearing, if successful as we anticipate, we will be seeking an Order for the full costs of the proceedings as against

Mr. Brennan.”

23. However, this letter was prior to first Notice of Trial being struck out on the 4th day of December, 1998. Thus it is not a factor

which excuses the delay. The plaintiff has also referred to a Book of Inter Party Correspondence referred to by the defendants’

solicitor and stated that he did not know what it contained. However, while these were given to him they were not before the court.

Finally, the plaintiff referred to two motions to dismiss for want of prosecution which occurred when the defendants were represented

separately by two firms of solicitors which arose in 1990 and which were struck out with costs awarded against him. He stated that

he did not previously make a submission on estoppel on the dismiss for want of prosecution orders arising in 1990. I am satisfied that

in relation to this matter the concept of estoppel does not apply. As to the argument in relation to the previous motions to dismiss for

want of prosecution: it is merely necessary to point out that over a decade has elapsed since these orders were made, in

circumstances where no reasonable excuse has been afforded for the delay. Thus while the court in the exercise of its discretion,

decided in exceptional circumstances to hear the motion today, none of the matters submitted by the plaintiff excuse the inordinate

delay.

Conclusion

24. I would not interfere with the exercise of discretion by the High Court. It was within the parameters of the law. Also, on balance

the justice of the situation is met by the order made by the High Court. There was inordinate and inexcusable delay so as to

undermine a fair trial. For the reasons given herein I would dismiss the appeal.