High Court dismisses personal injury claim due to inordinate and inexcusable delay by plaintiff after prior ruling.

APPROVED [2026] IEHC 15

THE HIGH COURT

2012 4689 P

BETWEEN

STEPHANIE NEISER

PLAINTIFF

AND

LEINSTER SENIOR COLLEGE LTD

DEFENDANT

IDEMUDIA AKPEKPE

THIRD PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 January 2026

INTRODUCTION

1. This judgment is delivered in respect of an application to dismiss the within proceedings on the grounds of delay. The striking feature of the case is that this is the second such application. The High Court previously held that the delay in prosecuting these proceedings had been both inordinate and inexcusable, but concluded that the balance of justice, at the time, lay against the dismissal of the proceedings.

NO REDACTION REQUIRED

2. The first judgment was delivered in June 2023. Notwithstanding the passage of more than two and a half years since that date, the plaintiff has still failed to do anything to bring the proceedings on for hearing.

THE PLEADED CASE

3. These proceedings take the form of a personal injuries action. The action arises from an incident alleged to have occurred on 12 May 2010 at Leinster Senior College, Newbridge, Co. Kildare (“the school”). The injured party, i.e. the plaintiff, contends that while descending a staircase within the school, she was intentionally pushed by another student, fell to the bottom of the stairwell, and sustained significant injury. This student has since been joined to the proceedings as a third party.

4. The plaintiff asserts that the defendant, as occupier and operator of an educational establishment, owed her a duty to take reasonable care for her safety, which encompassed maintaining a safe system of supervision and discipline, and ensuring that the stairwell was fit for use by students moving between classrooms. The particulars of breach include an alleged failure to control horseplay on the stairs (with reference to prior incidents said to have been known to the school), and an assertion that the stairs themselves were dangerous or defective in consequence of non‑compliance with Building Regulations’ requirements in respect of going/rise dimensions, inadequate warning signage, and insufficient housekeeping.

5. As to injury, the plaintiff pleads that she suffered a serious right‑ankle injury (initially including a fifth‑metatarsal fracture). It is further pleaded that the plaintiff has undergone reconstructive surgery, and suffers continuing pain and functional limitations, and psychological sequelae (including low mood and fear of heights). The plaintiff makes a claim for general damages and special damages (e.g. physiotherapy and travel expenses).

6. The defendant has filed a full defence. It is pleaded that the school maintained proper housekeeping and management and operated a code of discipline. The defendant contends that the incident was caused solely, or materially contributed to, by the third party’s conduct which is characterised as an unforeseeable act for which the school is not responsible. The defence also pleads contributory negligence, alleging that the plaintiff failed to use handrails, failed to keep a proper lookout, and otherwise failed to take reasonable care while descending the stairs.

7. On causation and the extent of injuries, it is pleaded in the defence that the plaintiff’s ongoing symptoms are attributable, in whole or in part, to pre‑existing bilateral pes planus. The defence also pleads novus actus interveniens, alleging that intervening events have affected the course and severity of any injuries.

PROCEDURAL HISTORY

8. The procedural history has been set out in detail in the judgment delivered in respect of the first application to dismiss: Neiser v. Leinster Senior College, unreported, High Court, Phelan J., 29 June 2023. To avoid unnecessary duplication, the chronology will not be replicated here. It is sufficient for the purpose of the (second) application to dismiss to identify the following events.

9. The proceedings commenced with the issuance of a personal injuries summons on 11 May 2012. The defence was delivered on 30 October 2012. The defendant had previously raised a notice for particulars on 5 June 2012, but this was not replied to until 25 February 2013.

10. The first significant period of plaintiff-delay occurred between August 2014 and February 2017. The High Court had made an order on 7 July 2014 directing the plaintiff to make discovery of certain medical records within twenty-eight days. The discovery process was not completed until February 2017.

11. The second significant period of plaintiff-delay occurred between May 2020 and January 2023. It should be explained that the case had been fixed for hearing twice, but on each occasion the hearing date had to be vacated. This period of delay runs from the date upon which the second hearing date (12 May 2020) had been vacated due to COVID‑19 related restrictions to the date of the service of a notice of intention to proceed (24 January 2023). The plaintiff’s side took no steps to relist the matter for hearing and numerous letters from the defendant’s solicitor went unanswered.

12. The defendant filed the first application to dismiss on 2 August 2022. The motion ultimately came on for hearing, on 26 June 2023, before Phelan J. A detailed written judgment was delivered three days later on 29 June 2023 refusing the application to dismiss. The judgment was decided by reference to the then leading authority, Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

13. The rationale for refusing the application is expressed as follows (at paragraphs 30 and 31 of the judgment):

“Following a careful assessment of all the relevant facts and

circumstances in this case, I am not satisfied that permitting

the claim to proceed would result in real and tangible

injustice to the Defendant. The most significant factor

weighing against dismissal on my assessment of the

competing facts and circumstances in this case is the fact that

the case has already been twice listed for hearing and is ready

to proceed. As it has been twice listed for hearing, the

Defendant has already or should have already marshalled

evidence in defence of the Plaintiff’s claim. Despite this the

Defendant does not point to any element of specific prejudice

arising from delay in the Affidavits grounding this

application or in submissions before me. I am not persuaded

that the hardship of denying the Plaintiff access to a trial of

her claim is, in all the circumstances, proportionate and just. I am satisfied that the balance of justice is not clearly against allowing the claim to proceed.

CONCLUSION

For the reasons stated, I refuse to make an order dismissing

the Plaintiff’s proceedings on grounds of inordinate and

inexcusable delay being satisfied that this delay has not so

prejudiced the Defendant as to tip the balance of justice

against allowing the case to proceed. There is, however, an

imperative for steps to be taken without any further delay to

secure a hearing date for these proceedings. I will hear the

parties in respect of any consequential matter but my

preliminary view is that the non-response of the Plaintiff’s

solicitor to correspondence from the Defendant’s solicitor

over a twenty month period is a factor which cannot be

condoned or excused and should be reflected in the terms of

any cost order I might make in respect of this application.”

14. As appears, the court expressly stated that there was an “imperative” for steps to be taken, without any further delay, to secure a hearing date for these proceedings. As of the date of the judgment, the only procedural step remaining to be completed in order to obtain a hearing date was to make an application to the judge in charge of the Personal Injuries List. Nothing else was outstanding. The pleadings were long since closed and the discovery process completed.

15. In the event, the plaintiff’s side failed to apply for a date, despite numerous requests that they do so. See letters of 7 May 2024; 22 May 2024; and 18 June 2024.

16. The solicitors acting for the plaintiff filed a motion seeking to come off record on 21 August 2023. The grounding affidavit avers to the failure on the part of the plaintiff to engage and provide adequate instructions. In the event, the solicitors did not pursue their motion.

17. The solicitor within the firm who now has responsibility for the plaintiff’s case has been frank as to the previous shortcomings of the firm. The prior position is summarised as follows in a replying affidavit dated 5 March 2025. “[…] I regret to say that prior to my involvement, there were four Solicitors given responsibility for the Plaintiff’s case. I regret to say that no action was taken to advance the case over this time. As far as I have been able to determine, the case was regrettably overlooked over this period. I appreciate that this is most unsatisfactory in the particular circumstances of this case. I can only apologise for this.

Respectfully I say that the Plaintiff bears no personal

responsibility for this period of inaction.”

18. The solicitor has acknowledged that the plaintiff had been given a “clear warning” by the court that there should be no further delay in obtaining a hearing date and that the plaintiff and her solicitors have not complied with that warning.

DISCUSSION

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.

20. Here, the present proceedings have already survived an earlier application to dismiss on the grounds of delay. It is apparent from the judgment of 29 June 2023 that the refusal of the application was contingent on steps being taken without any further delay to secure a hearing date for the proceedings. Indeed, the judgment characterises this as an “imperative”. In the event, the plaintiff’s side took no steps to secure a hearing date. All that would be required in this regard is to make an application to the judge in charge of the Personal Injuries List to fix a date. Nothing further is required in the present proceedings in circumstances where the pleadings are closed and the discovery process complete. Indeed, the action had been ready for hearing as long ago as 2020 and two hearing dates had been assigned at that time.

21. There was some suggestion in submission before me that significance should be attached to the fact that no formal order had been made in June 2023 directing that an application be made for a hearing date. With respect, there is no basis for such a suggestion. It is correct to say that a judge who has determined not to dismiss proceedings might go on to make formal case management directions addressing matters such as, for example, any outstanding pleadings or discovery. This is done to ready the action for hearing. In the present case, however, there was no necessity for a court order precisely because the action had been ready for hearing for a number of years. In circumstances where the only matter to be attended to was for the plaintiff to make an application to the list judge, there was no order which might sensibly have been made by the motion judge. At all events, and as frankly conceded on affidavit, the plaintiff’s side fully understood that they had been given a “clear warning” by the motion judge.

22. Counsel on behalf of the plaintiff acknowledged, as his instructing solicitor had previously done on affidavit, that there has been inordinate delay. Counsel submitted nevertheless that there were exceptional circumstances which justified further indulgence. First, it was said that the plaintiff is unemployed and suffers financial hardship. Second, it was said that the plaintiff suffers from depression and ill-health caused by the alleged incident. This, it was said, has led to difficulties in obtaining instructions from the plaintiff. I address these points in turn below.

23. As to the first, the fact, if fact it be, that a litigant is impecunious will not normally represent a justification for delay: see, generally, Gallagher v. Letterkenny General Hospital [2019] IECA 156 (at paragraphs 40 to 42). Certainly, financial hardship cannot represent a justification for the failure to apply for a hearing date in the present proceedings. Counsel has confirmed that his instructing solicitors are acting on a “no foal, no fee” basis (save as to outlay). It follows, therefore, that there is no financial impediment to bringing the action to trial.

24. As to the second, there is simply no admissible evidence before the court to suggest that the plaintiff is precluded, for health reasons, from providing instructions. No medical evidence has been put before the court in this regard. In answer to a question from the bench, counsel confirmed that the plaintiff has been in a position to give instructions to resist the application to dismiss the proceedings. This indicates that the plaintiff is able to engage. There is no apparent reason as to why she could not give an instruction to apply for a hearing date.

25. If and insofar as the plaintiff might seek to rely on any alleged shortcoming in the prosecution of the proceedings by the various firms of solicitors who had represented her in these proceedings, the court can and should take into account the fact that she may have an alternative means of enforcing her rights, i.e. by way of an action in negligence against those professional advisors (Rogers v. Michelin Tyre plc [2005] IEHC 294 (at pages 10 and 11), and Sullivan v. Health Service Executive [2021] IECA 287 (at paragraph 56)).

26. In conclusion, the plaintiff has failed to establish that there are any exceptional circumstances which might justify the delay from June 2023 in having a hearing date fixed. As explained in Kirwan v. Connors (per O’Donnell C.J.) a court, in deciding not to dismiss a claim, is entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal. Here, the High Court, in its judgment of 29 June 2023, made it plain that steps were to be taken “without any further delay” to secure a hearing date for the proceedings. This imperative has not been complied with and there is no justification for this non-compliance. It follows, therefore, that the proceedings must be dismissed by reason of delay.

27. For completeness, it should be recorded that the same result would follow even if the case is analysed without reference to the imperative stated in the judgment of 29 June 2023. This is because there has been cumulative delay on the part of the plaintiff of in excess of five years as follows:

August 2014 Delay in making discovery

to February 2017 (2 years, 6 months)

May 2020 Delay in applying for hearing date

to January 2023 (2 years, 8 months) June 2023 Delay in applying for hearing date (post judgment) to January 2025* (1 year, 7 months)

*Date upon which second motion to dismiss filed

28. The Supreme Court held in Kirwan v. Connors that where there has been a cumulative period of complete inactivity for more than five years, 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. The Supreme Court (per O’Donnell C.J. and Murray J.) explained that this would include exceptional situations in which the particular 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 that the public interest demands should be litigated to conclusion; or where there has been serious misconduct by the defendant in the course of the proceedings. It was further explained that the cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff’s delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale.

29. For the reasons discussed earlier, the present proceedings do not entail exceptional circumstances. As to prejudice, the court is entitled, in accordance with the principles in Kirwan v. Connors, to have regard to the fact that a period of more than fifteen years has expired since the date of the incident giving rise to this personal injuries action. The resolution of the proceedings would require the trial judge to attempt to assess the mechanics of an incident which can only have taken a matter of moments. The defendant is exposed to the risk of failing recollections. Moreover, the defendant asserts, and this has not been gainsaid by the plaintiff, that the third party cannot be traced. The quality and fairness of any trial which might now take place, some fifteen years later, has been greatly diminished as a result of the plaintiff’s delay.

CONCLUSION AND PROPOSED FORM OF ORDER

30. The High Court, in its judgment of 29 June 2023, made it plain that steps were to be taken “without any further delay” to secure a hearing date for the proceedings. This imperative has not been complied with and there is no justification for this non-compliance. It follows, therefore, that the proceedings must be dismissed by reason of delay.

31. The same result would follow even if the case is analysed without reference to the imperative stated in the judgment of 29 June 2023. This is because there has been cumulative delay on the part of the plaintiff of in excess of five years. There is no pressing exigency of justice that requires that the case be permitted to go to trial.

32. As to legal costs, my provisional view is that the defendant, having been entirely successful in having the proceedings dismissed, should be entitled to recover its costs in accordance with the default position under section 169 of the Legal Services Regulation Act 2015. The proceedings will be listed before me on Tuesday, 3 February 2026, for oral submissions on costs and on the final form of order.

Appearances

Martin Block for the plaintiff instructed by Coughlan White & Partners Solicitors Ray Delahunt for the defendant instructed by Harrison O’Dowd Solicitors LLP