High Court refuses strike-out on delay grounds, finding Plaintiff's delay inexcusable and balance of justice favors proceeding.

THE HIGH COURT

[2026] IEHC 142

Record No: 2019/3206P

BETWEEN:

PAULA CASEY

Plaintiff

AND

MARK SKEHAN, ST. JOHN’S HOSPITAL, HEALTH SERVICE EXECUTIVE, ETHICON PR HOLDINGS UNLIMITED COMPANY, JOHNSON & JOHNSON (IRELAND) LIMITED, AND BY ORDER JOHN DRUMM, DEIRDRE MARY FANNING AND FINBAR AIDAN O’REILLY

Defendants

Judgment of Ms. Justice Nuala Jackson delivered electronically on the 25th February 2026.

1. This matter comes before me, consequent upon a Motion brought by the Sixth Named Defendant, seeking to strike out the Plaintiff’s proceedings as against that Defendant on grounds of delay, the moving party asserting that such delay has been inordinate and inexcusable and has been such that warrants dismissal for want of prosecution as against the Sixth Named Defendant. Preand post-issuing delays are asserted.

FACTUAL BACKGROUND

2. The Plaintiff (‘PC’) claims damages for personal injury arising from the alleged professional negligence and breach of duty of the Defendants and each of them. PC had a medical procedure carried out by the First Named Defendant, at the Second Named Defendant’s hospital, which hospital was operated by the Third Named Defendant, on or about the 30th January 2015. This procedure concerned the insertion of a Gynaecare TVT mesh device, which device was supplied and/or manufactured by the Fourth and Fifth Named Defendants. She claims that she suffered pain in the aftermath of this procedure. She asserts that she underwent successive investigations into the cause of her ongoing pain between 2015 and 2019. She claims that on the 27th April 2017 the Eight Named Defendant performed a cystoscopy which established that the mesh device which had been inserted at the outset had eroded through the urethra and that ureterolysis and partial excision of mesh as well as cystoscopy and urethroplasty were performed on the 22nd August 2017 and that a further excision of remaining 8cm of mesh was undertaken in February 2019 in London.

3. The Sixth Named Defendant (now deceased) (‘JD’) was a Consultant Urologist who, inter alia, carried on a private practice at Barrington’s Hospital in Limerick. JD, tragically, died on the 24th March 2024 as a result of a progressive illness. PC claims that in or about December 2015 she was referred to JD in circumstances in which she was experiencing ongoing pain with urinary tract infections, incontinence and pain and that between December 2015 and April 20161 she was under the care of JD who examined her2 and proposed further urological testing and investigation in conjunction with the Seventh Named Defendant. These investigations included renal and pelvic ultrasound examination and a diagnostic cystoscopy. A CT Scan report of the 6th March 2016 is addressed to JD. It is clear that on the 29th April 2016, JD wrote to the Seventh Named Defendant referring PC to her and that PC ceased being under the care of JD as of that date. PC alleges that JD failed to offer and/or consider treatment by way of Botox injection and further failed to recommend a total mesh excision to alleviate PC’s symptoms “given the chronic symptoms exhibited by the Plaintiff”.

The Sixth Named Defendant asserts that PC was under his care from March to late April 2016 only, the referral to him by PC’s General Practitioner having occurred in December 2015.

In submissions on behalf of the Sixth Named Defendant, reference is made to a letter from JD to PC’s General Practitioner (3rd March 2016) confirming that “certain investigations were being carried out” and that the

Plaintiff had been seen at his “list in Barrington’s Hospital” which, the submissions contend, makes it unclear

whether the Plaintiff was examined by JD personally or by one of his team. ALLEGED PRE-COMMENCEMENT DELAY

4. The moving party herein references:

(a) The very significant lapse of time between the cessation of JD’s care of PC (April 2016) and the commencement of proceedings against him (28th March 2022), a period of almost six years.

(b) JD contends that while the Plaintiff asserts that the 2019 proceedings were in the nature of a protective writ, the full circumstances of the claim now being made against JD were known by 2017 (relating to mesh removal) and the delay must be considered in this context.

(c) Additionally, this was almost three years after the institution of proceedings against the First to Fifth Named Defendants (commenced on the 18th April 2019) and 16 months after receipt of the medical expert’s report referenced at (d) below.

(d) That PC received a medical expert’s report grounding the claim against JD on the 30th November 2020. JD references the delay in obtaining such report, treatment by JD having concluded in April 2016, and furthermore references that the Notice of Motion in respect of joinder of parties and amendment of pleadings did not issue until on or about the 7th December 2021, in excess of twelve months after receipt of the said report.

(e) That a letter of claim alleging medical negligence was served on JD on the 12th May 2021 which letter, it is asserted, provided little detail in relation to the allegations of negligence being made.

(f) That there was considerable delay on the part of PC in responding to requests for copies of medical records with numerous letters of request being written between the middle of 2021 and early 2022. These records were provided in or about 2nd December 20223. A data subject access request was made by PC of JD in respect of “private notes” by letter of the 11th August 2022. The response, dated the 8th September 2022, indicates that the solicitors are liaising with their client and this letter does reference unspecified ill health of JD.

The Affidavit in reply to the motion references these as comprising “significant volumes of medical discovery (818 pages in total)”. PROCEDURAL BACKGROUND AND ALLEGED POST-COMMENCEMENT DELAY

5. PC commenced these proceedings by issuing a Personal Injuries Summons on the 18th April 2019. The proceedings were issued against five defendants only at that time.

JD was subsequently joined on foot of a Court Order of the 28th March 2022 (Barr J.).

PC asserts that an expert report was received in or about May 2020 which raised the possibility of a claim against professionals involved in subsequent treatment of PC but that clarification of this report was required and was sought but such clarification was only received in or about November 2020 in the context of a supplemental report.

Thereafter, an appropriate motion issued which was determined and orders made in March 2022. This resulted in the service of an Amended Personal Injuries Summons on the 30th March 2022.

6. Post-commencement delay is also alleged by the applicant in this motion being:

(i) A Notice for Particulars raised by JD on the 29th June 2022 was not replied to until the 19th October 2023 (received 23rd October 2023), a period of almost

16 months. Reference is made to repeated requests for a response to such Notice having been sent. The moving party also references the fact that there was no Affidavit of Verification of the Replies until the 6th February 2024.

(ii) A request for copies of the Motion and Affidavit grounding the joinder application was made on the 29th June 2022 but this was not responded to.

(iii) Discovery was sought from PC’s solicitors on the 7th September 2022, which request was not responded to until the 2nd December 2022.

EVIDENCE RELIED UPON

7. The motion currently under consideration is grounded on the Affidavit of Nessa O’Roarty sworn on the 26th June 2024. The periods of delay referred to above are deposed to and correspondence is exhibited. It is averred that no reason has been provided for the delay obtaining supportive expert evidence and the delay between obtaining such expert evidence and the joinder/amendment application being made.

The deponent avers to a belief that JD was already suffering under illness at the time of service of the Amended Summons (but also avers to JD’s solicitors being unaware of this in September 2022). There is no evidence that PC was aware of the compromised health status of JD. It is averred that the solicitors have “sought to contact” the estate of JD and/or close family but no details of such efforts have been provided. It appears that medical notes which had been provided by PC to the solicitors for JD were being used to commence the compiling of a Defence but that input from JD was required and was not achieved prior to his untimely death. It is averred:

“The input of the Sixth Named Defendant is really important for the preparation of any Defence given the specific allegations namely that he did not consider using Botox to alleviate the Plaintiff’s medical condition nor did advise about removing the mesh device. Without the input of the Sixth Named Defendant, it’s extremely difficult to defend the action for the Sixth Named Defendant or his representatives.”

8. The Affidavit does not make any substantive reference to the efforts which have been made to enquire as to what professional notes or records JD (or now his estate) had or has in relation to his interactions with the PC or as to what enquiries have been made about the knowledge which third parties (including medical colleagues or assistants)

may have in relation to such interactions. It is averred:

“Whilst your Deponent’s firm have sought to contact the Deceased’s estate and/or close family members, about these proceedings, it is understandable that they are still mourning their loss.”

9. A replying Affidavit was sworn by Melanie Power on the 30th October 2024. It is averred:

(i) That the existence of a separate and distinct breach of duty on the part of JD, making him a concurrent wrongdoer was not confirmed by way of expert report until November 2020. It is indicated that an expert report was sought following the issuing of a protective writ, being sometime after April 2019.

The expert report received in May 2020 required further clarification in relation to matters concerning the Sixth Named Defendant and such clarification was sought and thereafter received in November 2020;

(ii) It is averred that PC had no reason to suspect negligence in the context of subsequent treatments until the expert report was received in November 2020, this issue not having arisen until the receipt of the first report of the expert in May 2020;

(iii) Reference is made to the speed at which the Amended Personal Injuries Summons was served after the order of the 14th March 2022;

(iv) It is averred that the delay between the receipt of the expert report and the joinder motion (a period of just under one year) included six months of Covid restrictions when the Master’s Court did not sit, the list not recommencing until May 2021;

(v) Considerable emphasis is placed upon the ongoing ill health of PC and the complex and multiple medical treatments being undertaken by her during this time and a very considerable number of medical consultants being attended by her. Nineteen medical professionals being attended are listed in the Affidavit;

(vi) Reference is made to the lack of any application to set aside the joinder/amendment order made in March 2022. (However, it would appear to be conceded that a request for copies of the motion and grounding Affidavit made by the solicitors for JD was overlooked and these documents were not furnished to them);

(vii) The delay in replies to particulars is also attributed to the ongoing health difficulties of PC, difficulties of which, it is averred, the solicitors for JD were aware. Correspondence in this regard is exhibited;

(viii) In any event, significant medical discovery had been provided in December 2022 which would have enabled investigations by the solicitors for JD to have been progressed such that “no identifiable prejudice arose” and “no consequent prejudice has been identified”;

(ix) It is averred that the balance of justice falls in favour of the Plaintiff where the letter of claim on the 12th May 2021 was three years prior to the death of JD, affording ample time for instructions to have been taken. Delay in taking such instructions is alleged, it being deferred until late 2023/early 2024 in circumstances in which his illness was being referenced in correspondence from September 2022;

(x) Details of extensive discovery made by PC and the chronology of same are deposed to;

(xi) It is averred that the balance of justice must be viewed in light of the ongoing illness of the Plaintiff and the treatments which she was receiving;

(xii) Reference is also made to the “very narrow and discrete” claim being made against JD:

“… in the unusually narrow confines of the Plaintiff’s allegation against the Sixth Defendant, specifically that he has to answer two sole criticisms, the Sixth Defendant can rely on expert evidence to contest the basis of the Plaintiff’s assertion of breach of duty and/or causation, and that same is or would be sufficient to defend the within claim.”

(xiii) Statutory obligations in relation to the pursuit of concurrent wrongdoers are also referenced.

SUBMISSIONS OF THE SIXTH NAMED DEFENDANT

10. JD contends that there has been inordinate and inexcusable delay on the part of PC which has caused prejudice to him in the context of this litigation. It is submitted that preand post-commencement delays are in play in this context and reference is made to Celtic Ceramics Limited v. IDA, Hunt and Others 1992 WJSC-HC 3185 and 1998 WJSC-SC 656. It is contended that the complex nature of the overall proceedings, involving medical negligence and product liability does not excuse the delay in respect of the claim against JD which claim is not complex. Furthermore, it is contended that the nature of the allegations being made against this Defendant are such as cannot be dealt with on the basis of independent expert medical evidence only, rather the specific input of JD would be required and this is not now possible.

Documentation relating to the interactions between PC and JD would appear to be very limited in terms of the discovery which has been made. The applicant references limited hospital records held by other Defendants. It is submitted that JD was not in a position to provide insurers and/or the legal representatives with instructions in response to the Replies to Particulars received from the Plaintiff in October 2023.

“Extreme prejudice” in the absence of direct input by JD is asserted. It is submitted by the applicant that “it is not clear” if there are any treating notes whatsoever and that, in the absence of such treating notes, “it is extremely difficult to what an independent expert can provide”4. In the second submissions of the applicant5 it is stated:

“4.7 It is not clear whether there is anything other than a minimal documents available in relation to the Sixth Named Defendant’s interaction with the Plaintiff. There is nobody available from the Sixth Named Defendant’s side to provide an overview of the interaction between the Sixth Named Defendant and the Plaintiff. The documentation which is available is limited to the documentation provided by the Plaintiff’s solicitors on discovery, but this unfortunately is wholly insufficient.

4.8 There may or may not be plausible explanations for the alleged failures on the part of the Sixth Named Defendant, if there were failures, but without the direct input of the Sixth Named Defendant, it is mere speculation as to what the explanations are.”

11. It was unclear to me, despite clarification having been sought at hearing, what efforts had been made by the applicant to clarify the position in relation to such treating notes and whether or not they existed.

12. The applicant (JD) contends that accumulated delays, pre and post commencement and the exceptional circumstance in which a claim of professional negligence is made and the professional is deceased as of March 2024 results in a real risk of an unfair trial and unjust result.

13. It was contended that the illness and ongoing medical treatment of PC is not relevant and reliance was placed on Cunningham v. Neary [2004] IESC 432.

SUBMISSIONS OF THE PLAINTIFF

14. The Plaintiff submits that this application falls into the category of case in which the period of inactivity is less than two years and that, in such circumstances, a claim should only be dismissed if it amounts to an abuse of process or if there is prejudice to the Defendant to the level required previously to ground an application under the O’Domhnaill v. Merrick [1984] I.R. 151 principles. The Kirwan v. Connors case6

First submissions dated 5th May 2025.

Revised subsequent to the Kirwan decision [2025] IESC 21 and subsequent decisions of this Court 7are distinguished on the basis that the duration of inactivity in those cases greatly exceeds that which arises in the present instance.

The Plaintiff submits that the need for oral testimony is reduced in this case, the issue being whether JD ought to have recommended certain courses of treatment rather than whether he did or did not so recommend. The Plaintiff proceeds to examine the balance of convenience and concludes that this rests with her

“where she instigated the claim, within time, with the benefit of expert evidence and the expert allegations are binary – he did or did not recommend three stated treatments which could have eased her condition.”

The Plaintiff contends that the claim was made within the statutory limitation period (a matter which I am not required to determine in this application); that there has been procedural delay on the part of the Sixth Named Defendant; that no application was brought to set aside the joinder orders made in March 2022; that the Plaintiff’s delays are explained, understandable and reasonable in the context of her ongoing health deficits and there are allegations of delay on the part of the Sixth Named Defendant.

LEGAL PRINCIPLES APPLICABLE

15. The legal principles applicable to dismissal of proceedings on grounds of delay were considered by the Supreme Court in Kirwan v Connors [2025] IESC 21.

16. The test which should be applied when considering an application such as the present application, was set down on behalf of the majority of the Supreme Court at paragraph 26 of the judgment delivered by the Chief Justice in the following terms:

“In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more.

Greater weight should be given to the factor of the passage of time. This will also have the merit of simplifying the test to be applied. I agree with Hogan J.

that two years of inactivity is a critical milestone. I would apply the tests set

Dennis Guilfoyle Developments Limited v. Wardrop [2025] IEHC 414 (inactivity of in excess of four years and a contract concluded in 2006 in respect of which oral evidence would be required); Nowak v. Institute of Chartered Accountants in Ireland [2025] IEHC 408 (a period of inactivity of in excess of eight years) out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that: -

(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be entitled to make strict 13 case management directions on the basis that non-compliance with such directions would itself justify dismissal; (iii)

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably 16 accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial.

Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious 14 misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment”

17. Of particular pertinence in the current circumstances are the dicta of the Chief Justice at paragraph 17 of his judgment:

“17. There are a relatively small number of factors of obvious relevance to any jurisdiction to dismiss for want of prosecution and which tend to be rehearsed at some length in any Primor/Order 122 Rule 11 application. These are, the length of time since the events the subject matter of the proceedings;

the period or periods of inactivity in the litigation; the excuse, if any, offered;

any question of defendant's acquiescence in or encouragement of delay;

whether the case is dependent on oral evidence; whether extensive documentary evidence is available; and the extent of any prejudice alleged to be suffered by the defendant by reason of delay over and above the general assumption that the passage of time means that evidence becomes degraded, less certain, clear, persuasive and reliable.”

18. These principles have been applied by this court in a number of cases since and I make reference to some of these by way of additional assistance in this matter. In Neister v. Leinster Senior College Limited [2026] IEHC 15, Simons J. stated:

19. The principles governing applications to dismiss proceedings on the grounds of delay have recently been restated by the Supreme Court in Kirwan v. Connors [2025] IESC 21. The following points are of especial relevance to the circumstances of the present proceedings. First, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Second, there is no mutual obligation in litigation requiring defendants to take positive steps to advance a case brought against them. Defendant inactivity is not normally a bar to dismissal.

Third, rules on dismissal of claims for want of prosecution are not themselves an impermissible interference with the right of access to courts to litigate claims and there is no presumption against dismissal. Fourth, if a court does not dismiss the claim, it would be entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal.”

19. In Holmes v Ireland and Ors [2026] IEHC 2 (Sara Phelan J.) at paragraph 30 states:

“Noting that the decision in Kirwan comprises four judgments (O’Donnell CJ and Hogan and Murray JJ; Collins J dissenting), it is not necessary for the purpose of this judgment to delve into the detail of Kirwan and instead it seems to me that the following Kirwan principles apply to the present application:

a. a court, on hearing an application such as the present one, has the power – which is derived from both the inherent jurisdiction of the Court and RSC O.122, r.11 – to dismiss a case for want of prosecution (O’Donnell CJ at §13, Hogan J at Part VII and particularly at §147, Collins J at §34, and Murray J at §40, dissenting as regards the source of the Court’s power to dismiss for delay lying in the inherent jurisdiction of the Court and maintaining that the power to dismiss flows solely from O.122, r.11);

b. there is a presumption in favour of dismissal as time passes, and depending upon the duration of inactivity, rather than a defendant having to show prejudice (O’Donnell CJ at §26, Hogan J at §10 and Murray J at §54) – see also the discussion at §31 below;

c. after certain periods of inactivity, dismissal may be justified without proof of specific prejudice to the defendant (O’Donnell CJ at §26, Hogan J at §208);

d. defendants are not “co-adventurers in litigation”, they are not obliged to prod plaintiffs into action and plaintiffs bear the responsibility for prosecuting their own claim (O’Donnell CJ at §14, Hogan J at §17 and Murray J at §48);

e. defendant inactivity is not a bar to dismissal, unless it rises to the level of acquiescence or encouragement, i.e., where a defendant has “actively lulled the plaintiff into a false sense of security” (O’Donnell CJ at §15, Hogan J at §190 and Murray J at §49);

f. the Courts must ensure efficiency and certainty, in circumstances where lapse of time is in and of itself harmful to the proper administration of justice (O’Donnell CJ at §23, Hogan J at §200 and Murray J at §30); and Page 20 of 42

g. the constitutional right of access to the Courts does not guarantee indefinite indulgence and timely litigation is to be encouraged (Hogan J at §107 and at §171); …”

CONCLUSION

20. The Plaintiff in this case asserts that she has suffered personal injury due to the negligence and breach of duty of a number of Defendants and she seeks to recover damages in this regard. The Sixth Named Defendant in this motion seeks to have her claim against him dismissed on the basis of her delay which will, in the context of the subsequent demise of the Sixth Named Defendant, cause him serious risk of prejudice.

21. I must in the first instance confirm that I do not accept the submission of the Plaintiff that the only issue in contention is why treatments were not recommended to the Plaintiff by the Sixth Named Defendant. It was submitted:

“The records show the Sixth Defendant did not recommend them and so to that end, the Plaintiff maintains her case is well made.”

22. This appears to me an unduly simplistic approach to the potential role/evidence of the Sixth Named Defendant. It seems to me that there are three issues arising: (a) what treatments were/were not recommended? (b) what treatments ought to have been recommended? and (c) are there reasons why were such recommendations not made in this instance? Clearly, there may well be contention between the parties in respect of each of these issues.

23. This case does not involve delays of the duration considered in many of the precedents in which the delay issue is addressed. Indeed, the two post-Kirwan High Court decisions8 referenced by the Plaintiff are examples of very considerably longer delays than arise in this instance. There can be no suggestion that Order 122 of the Rules of the Superior Courts is engaged, there having been a “step” in the proceedings within the two year period prior to the issuing of this motion. Such a step was taken by the Plaintiff in May 2024 when a motion for judgment in default of defence was issued. This motion came later in time in July 2024. The Sixth Named Defendant asserts that the Affidavit of Verification relating to the Replies to Particulars was awaited but this Affidavit was filed in February 2024, some six months prior to the issuing of this Motion. To cite Hogan J. in Kirwan, these proceedings have not “remained fallow” for such two year period.

24. I conclude that this case must be considered under paragraph 26(i) of the judgement of the Chief Justice in Kirwan:

“(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O Domhnaill v Merrick jurisdiction.”

25. I do not consider that the tests required to conclude an abuse of process have been satisfied in this instance. In this regard, I refer to the dictum of Finlay Geoghegan J.

in Gilchrist v. Sunday Newspapers Limited [2017] IECA 190:

“the jurisdiction of the Irish courts to strike out proceedings as an abuse of process where the plaintiff has no ulterior purpose in pursuing the claim (and it is not frivolous of vexatious or repeat litigation or bound to fail) is where a defendant establishes that there is no benefit to the plaintiff in successfully pursing the claim.”

I would also reference the guidelines in this regard in the judgment of Barrett J. in Dunnes Stores v. An Bord Pleanála [2015] IEHC 7169.

26. Having regard to O’Domhnaill v Merrick [1984] IR 151, the factual circumstances were vastly different in terms of delay than those that arise in this case. However,

Dennis Guilfoyle Developments Limited v. Wardrop [2025] IEHC 414 and Nowak v. Institute of Chartered Accountants in Ireland [2025] IEHC 408.

Referenced in Delany and McGrath on Civil Procedure, 5th Edition at paragraph 16-63. considering the intermingling of delay and prejudice, Henchy J. referenced a balancing of the positions of the Plaintiff and the Defendant:

“In all cases the problem of the court would seem to be to strike a balance between the plaintiff's need to carry on his or her delayed claim against the defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend.”

27. In the context of O’Domhnaill v Merrick, having considered the issue of delay, I must then proceed to balance the prejudice to the Plaintiff in the context of the dismissal of her claim against the prejudice to the Sixth Named Defendant in having to defend a claim where the most significant witness from his perspective is deceased.

The applicant asserts that this balance favours the Sixth Named Defendant having regard to the delay of the Plaintiff in progressing the proceedings.

28. The authorities support the conclusion that pre-commencement and postcommencement delays may be taken into consideration. I accept the submissions of the moving party in this regard. The proceedings were issued in April 2019 and an application to join further defendants was successfully made to this Court in March 2022. Disputes may well arise in relation to dates of knowledge and as to whether claims are statute barred but this is not a matter before me in the present application and I make no determinations in this regard. The additional defendants were joined and no application to set aside the Order of the Master was brought and Sixth Named Defendant engaged with the proceedings, entering an Appearance and serving Notice for Particulars and there was protracted correspondence in relation to the filing of a Defence and the Sixth Named Defendant seeking forbearance in this regard, culminating in a motion for judgement in default of defence issuing in May 2024.

There is no doubt that there was considerable delay between the cessation of treatment of the Plaintiff by JD and the commencement of proceedings against him.

There are two other concerning periods of delay, one pre and one post such commencement – the first is the period of time which elapsed between the Plaintiff obtaining the expert report in November 2020 and the issuing of the joinder motion in December 2021. However, this has been somewhat explained by the closure of the courts due to the pandemic and the ongoing medical condition of the Plaintiff and the many and complex treatments which she was undertaking. The second concerning delay relates to the length of time taken to respond to the Sixth Named Defendant’s Notice for Particulars. In this regard, again, the replying Affidavit of the Plaintiff again refers to her ongoing treatments and ill health. The Sixth Named Defendant contends that such illness is irrelevant and relied upon Cunningham v. Neary [2004] IESC 432. However, that decision was concerned with date of knowledge for the purposes of section 3 of the Statute of Limitations (Amendment) Act, 1991, an entirely different matter to that currently under consideration. Undoubtedly, these delays are matters to which I must have regard in applying the O’Domhnaill v.

Merrick principles and in determining the balance of convenience in this instance.

29. As against this, the Sixth Named Defendant was aware of a potential claim from 2021 and yet instructions in relation to such potential claim do not appear to have been taken. The amended pleadings consequent upon joinder were served promptly postjoinder in March 2022 and yet no instructions would appear to have been taken between that date and the death of the Sixth Named Defendant, two years later. The prejudice asserted by the Sixth Named Defendant relates to the death of the Sixth Named Defendant and, undoubtedly, the death of the Sixth Named Defendant clearly renders the proceedings difficult. However, there is a complete lack of evidence on the part of the moving party in this motion as to the steps which have been taken to ascertain what evidence is available and procurable by them. There is no evidence of correspondence with the estate or family of the Deceased to ascertain what notes or records exist. There is no evidence of any efforts to ascertain whether or not there are other witnesses who might assist in this regard, whether medical colleagues or administrative personnel associated with the Sixth Named Defendant. If there was evidence that such enquiries had been made without any result, issues of prejudice would have to be considered in a different light.

30. On the facts as presented to me on Affidavit, I conclude that the combination of delays pre and post commencement of proceedings might well be viewed as inordinate but I cannot conclude on the evidence that the delay of the Plaintiff has been inexcusable and, having regard to the overall circumstances and the evidence adduced, if I am incorrect in this regard, I further do not consider that the balance of justice as between the parties results in a situation such as causes the principles in O’Domhnaill v Merrick to be engaged and satisfied in this instance.

31. I therefore refuse the relief being sought by the Sixth Named Defendant herein.

32. I would indicatively propose reserving the costs of this application to the hearing of the action but if either party wishes to make submissions in relation to the issue of costs, I will hear such submissions on a date convenient to Counsel, within 14 days of the date of delivery of this judgment.