High Court dismisses plaintiff's claim due to excessive delay in prosecuting the personal injury action against hospital defendants.

[2026] IEHC 2

THE HIGH COURT Record No. 2007/1974P

BETWEEN

NIGEL HOLMES Plaintiff -and-

IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR HEALTH AND CHILDREN, THE HEALTH SERVICES EXECUTIVE and THE ADELAIDE AND MEATH HOSPITAL, DUBLIN, INCORPORATING THE NATIONAL CHILDREN’S HOSPITAL

Defendants

JUDGMENT of Ms Justice Sara Phelan delivered on the 12th day of January 2026

TABLE OF CONTENTS

Introduction .............................................................................................................................. 2

Factual/Procedural Background ............................................................................................ 2

Discussion................................................................................................................................ 19

Conclusion .............................................................................................................................. 41

Costs ........................................................................................................................................ 42

Introduction

1. This judgment concerns an application by the fourthand fifth-named defendants (“the defendants”) to strike out the plaintiff’s claim on a number of grounds, all relating to delay on the part of the plaintiff in progressing or prosecuting his case.

The defendants ground their claim on both Order 122, rule 11 of the Rules of the Superior Courts (“RSC”) and the inherent jurisdiction of the Court.

2. For the reasons set out hereunder, the reliefs sought are granted.

Factual/Procedural Background

3. The plaintiff was injured in a motorcycle accident on 20 March 2005 and his claim as against the defendants is for damages for personal injuries arising by reason of treatment provided to him whilst he was an inpatient at the fifth-named defendant hospital following the accident. There are no allegations made as regards the plaintiff’s initial treatment in hospital (where he had been treated for a compound fracture of his left femur, a fractured pelvis and a dislocation of his left hip) but rather that during follow-up treatment, the plaintiff was placed in an MRSA infected area which the defendants knew or ought to have known was detrimental to his health and wellbeing, as a result whereof he contracted an MRSA infection and suffered personal injuries, loss and damage by reason of same. The plaintiff’s case in a nutshell, and as pleaded, was that some months prior to his admission, the fifth-named defendant allowed a situation to develop whereby it suspended the ring-fencing of orthopaedic beds and if proper infection control procedures had been in place (including basic hygiene procedures) he would not have contracted an MRSA infection. 12th

4. The plaintiff issued a personal injuries summons on 14 March 2007, and thus it has been in excess of 17 years since the commencement of the claim, and in excess of

20 years since the index event. The defendants’ solicitor, in her grounding affidavit sworn on 23 May 2024, identified five distinct periods of delay, and these are addressed in greater detail hereunder.

5. The progression of the plaintiff’s claim (as can be gleaned from the papers before the Court) is best set out in tabular form as follows:

Date Step April 05 – index event Jun 05

29 Mar 06 plaintiff makes Freedom of Information (“FOI”) request

14 Mar 07 plaintiff issues personal injuries summons

11 May 07 plaintiff first corresponds with Mr David Moore, Consultant Orthopaedic Surgeon, the plaintiff’s treating doctor

16 Aug 07 fifth-named defendant enters appearance

25 Jan 08 first-, second-, thirdand fourth-named defendants enter appearance

27 Feb 08 plaintiff corresponds with Mr Moore

29 Feb 08 Mr Moore sets consultation date of 22 Apr 08

03 Mar 08 plaintiff corresponds with Mr Moore, enclosing cheque

03 Mar 08 defendants seek voluntary discovery

03 Mar 08 defendants seek particulars of special damage [not provided in papers before the Court but referred to in papers before the Court]

25 Apr 08 plaintiff corresponds with Mr Moore, enclosing additional cheque

07 Jan 09 defendants seek further & better particulars

03 Feb 10 defendants seek voluntary discovery

29 Mar 11 order (by consent) directing plaintiff to make discovery

16 Feb 12 & plaintiff corresponds with Mr Moore

06 Mar 12

10 May 12 order extending time for plaintiff to comply with order of 29 Mar 11

11 May 12 plaintiff replies to notice for particulars

11 May 12 plaintiff delivers further & better particulars of personal injuries

31 May 12 plaintiff swears affidavit of discovery

14 Jun 12 defendants’ motion seeking to strike out plaintiff’s claim for failure to comply with discovery order settled

16 Jul 12 defendants seek voluntary discovery

17 Jul 12 plaintiff replies to notice for further and better particulars

18 Jul 12 plaintiff serves notice of discontinuance against firstto third-named defendants

19 Jul 12 plaintiff seeks voluntary discovery from fifth-named defendant

19 Jul 12 plaintiff makes FOI request

19 Jul 12 – plaintiff corresponds regarding difficulties obtaining documents

17 Oct 12

25 Sep 12 plaintiff inspects medical records & arranges for copies to be made available to Mr Moore

28 Sep 12 – plaintiff corresponds with Mr Moore on 5 occasions

04 Feb 13

26 Jul 13 defendants reply to plaintiff’s request for voluntary discovery

25 Nov 13 & plaintiff corresponds with Mr Moore

02 Dec 13

12 Dec 13 plaintiff swears affidavit of voluntary discovery

20 Jan 14 plaintiff corresponds with Mr Moore

06 May 14 defendants arrange appointment for plaintiff with orthopaedic surgeon

07 May 14 plaintiff corresponds with Mr Moore

29 Aug 14 – defendants send reminder letters (x4) re particulars of special damage

19 Aug 15

03 Sep 14 plaintiff corresponds with Mr Moore

28 Apr 15 & defendants send letters (x2) asking plaintiff to forward GP records

19 Aug 15

19 Aug 15 – inter partes WOP correspondence

01 Jun 21

17 Feb 16 – defendants send reminder letters (x3) re particulars of special damage

07 Oct 16

11 Mar 19 defendants send reminder re outstanding discovery

15 Mar 19 plaintiff corresponds with Mr Moore

20 Mar 19 Mr Moore reviews plaintiff

21 Mar 19 plaintiff corresponds with Mr Moore

27 Mar 19 plaintiff follows up FOI request

29 Mar 19 upon review of FOI documentation, plaintiff seeks additional information from the defendants

29 Mar 19 plaintiff serves notice of intention to proceed

22 May 19 plaintiff corresponds with Mr Moore

26 Jun 19 defendants seek FOI update

21 Jul 20 plaintiff corresponds with Mr Moore

21 Jul 20 plaintiff requests FOI update

07 Oct 21 WOP correspondence from defendants

17 Apr 24 plaintiff corresponds with Mr Moore

24 May 24 defendants issue motion/application now before the Court

19 Jul 24 plaintiff corresponds with Mr Moore

31 Oct 24 plaintiff serves notice of intention to proceed

6. As can be seen from the chronology above, the defendants issued a notice of motion on 24 May 2024, seeking to strike out the plaintiff’s claim on the grounds of delay:

a. pursuant to RSC O.122, r.11, in that that there had been no proceeding for two years from the date of the last proceeding;

b. pursuant to the inherent jurisdiction of the Court, in that: i. there had been inordinate and inexcusable delay in the prosecution of the proceedings;

ii. it was in breach of the defendants’ constitutional rights, including a right to a fair trial – and similar rights pursuant to Article 6 of the European Convention on Human Rights – to allow the claim to proceed; and iii. the absence of an expert report the commencement and maintenance of the proceedings constituted an abuse of process;

and the notice of motion was grounded on the affidavit of Kate O’Donohoe solicitor, sworn on 23 May 2024 (“the grounding affidavit”).

The grounding affidavit (23 May 2024)

7. The grounding affidavit set out a detailed chronology, including some of the steps referred to at §5 above, and noted that the proceedings were discontinued as against the firstto third-named defendants by way of notice of discontinuance served on behalf of the plaintiff on 18 July 2012. The grounding affidavit also noted that the plaintiff appeared never to have sworn a verifying affidavit in respect of the proceedings.

8. Ms O’Donohoe then set out five periods of delay relating to:

a. replies to particulars – from 07 January 2009 (when a notice for particulars was issued by the defendants) to 11 May 2012 (when replies were received from the plaintiff) – a delay of 3 years, 4 months;

b. disclosure/discovery of GP records, St James’s Hospital records, Public Health Nurse records – from 03 February 2010 (when the defendants sent a formal letter seeking voluntary discovery) to 31 May 2012 (when the plaintiff swore an affidavit of discovery) – a delay of 2 years, 3 months, 28 days. For ease of reference, I will refer to this as the ‘first tranche of discovery’. Of note is that the plaintiff’s solicitor did not respond to the defendants’ request for discovery until a motion for discovery issued and then, despite a consent order being made on 29 March 2011, the plaintiff did not make discovery and a further motion had to issue, culminating in an order

made on 10 May 2012, extending time for discovery to be made for a further four weeks;

c. discovery (related to previous accident, P60s and hospital records)

following replies to particulars – from 16 July 2012 (when the defendants sent a further letter seeking voluntary discovery) to 16 December 2013 (when the plaintiff swore an affidavit of discovery) – a delay of 1 year, 5 months. For ease of reference, I will refer to this as the ‘second tranche of discovery’. Encompassed within this period was a request from the plaintiff dated 19 July 2012 to the fifth-named defendant for voluntary discovery, and the fifth-named defendant made such discovery on 26 July 2013;

d. particulars of special damage and GP records – from 29 August 2014 to

07 October 2021 – a delay of 7 years, 2 months. It should be noted that the correspondence exchanged during this period was both open correspondence and without prejudice (“WOP”) correspondence and whilst there were sporadic responses from the plaintiff’s solicitor, it does not appear to be the case that the defendants actually received the information/documentation sought;

e. the last communication to the plaintiff’s solicitor – a WOP letter was sent by the defendants’ solicitor to the plaintiff’s solicitor on 07 October 2021 and was not responded to by the plaintiff’s solicitor as of the date of the swearing of the grounding affidavit – a delay of 2 years, 7 months.

9. Of note, and as regards delay, the defendants also made the following points:

a. the totality of the delay between the index event and the date of the swearing of the grounding affidavit date was 18 years, 11 months;

b. the totality of the delay between the issue of the personal injuries summons and the date of the swearing of the grounding affidavit date was 17 years, 2 months;

c. the affidavit of discovery sworn by the plaintiff on 16 December 2013 was the last “proceeding/step” in the case and as of the swearing of the grounding affidavit, this was a delay of 10 years, 5 months;

d. there was a delay of 11 years, 1 month between the first FOI release made to the plaintiff in February 2008 and a second FOI request made by the plaintiff on 27 March 2019;

e. there was a delay of 5 years, 2 months from the service of a notice of intention to proceed on 29 March 2019 to the date of the swearing of the grounding affidavit.

10. The grounding affidavit then went on to claim that the delays were inordinate and inexcusable, and that the plaintiff had not prosecuted his claim with expediency, thereby favouring a dismissal of the plaintiff’s claim on the balance of justice. The defendants also made the point that it was difficult to speculate as to when the case might actually be heard and that the delay would even be greater as of the hearing date, and that in any event their entitlement to a fair trial within a reasonable time period was rendered impossible by the plaintiff’s delay.

11. Separately, the defendants claimed that they were prejudiced, without specifying the nature of the prejudice and reserved their rights to make submissions in this regard, and that such prejudice was something that should be considered by me, particularly in a professional negligence action such as the present case.

12. And lastly, the defendants claimed that any delay on their part (which was not accepted) could either be explained and/or ought not be regarded as being culpable or acquiescing in respect of the plaintiff’s delay.

The plaintiff’s replying affidavit (23 July 2024) and supplemental affidavit (15 November 2024)

13. A lengthy replying affidavit (“the replying affidavit”) was sworn by the plaintiff’s solicitor on 23 July 2024, and the following averments were of note in the context of the present application:

a. it was accepted that the WOP letter from the defendants dated 07 October 2021 (and previous WOP correspondence between December 2020 and June 2021) was not responded to, and an explanation was given to the effect that the first time this WOP correspondence had come to the attention of the plaintiff’s solicitor was on 30 May 2024 when, following receipt of the defendants’ strike-out motion, he checked his office’s email system whereupon it transpired that arising from administrative errors the correspondence was not assigned correctly on the solicitor case management system; b. there were ongoing difficulties encountered by him in promoting the case and, in particular, there were delays in procuring a medico-legal report from the plaintiff’s treating clinician, Mr David Moore, Consultant Orthopaedic Surgeon, leading to delays in procuring an expert liability/causation report and a delay in particularising the plaintiff’s special damages and loss of earnings; c. significantly, and as regards the delay in procuring a medico-legal report from Mr Moore, the plaintiff’s solicitor averred that he sought a medical report from Mr Moore on 11 May 2007 and thereafter, it appeared that Mr Moore examined the plaintiff on 22 April 2008 but a report was not prepared at that time because (part of) the plaintiff’s chart, although requested from the fifth-named defendant, had not been provided.

It also appeared that the request for a medico-legal report from Mr Moore was not ‘followed up’ by the plaintiff’s solicitor until 16 February 2012, a delay of some 3 years, 10 months following examination. It also appeared that there were then difficulties in having (part of) the plaintiff’s chart transmitted from Tallaght Hospital to Mr Moore’s private rooms in the Blackrock Clinic, such that the plaintiff’s solicitor sought the plaintiff’s entire medical records from Tallaght Hospital himself and due to administrative difficulties, this process took some 18 months.

The medical records were delivered to Mr Moore’s private rooms in December 2013, where they remain to this day, some 12 years later, and unfortunately the plaintiff’s solicitor did not retain a copy of such records; d. the plaintiff’s solicitor then averred that he had corresponded with Mr Moore on some 30 occasions seeking a medico-legal report and that, despite payment being made, such report was not forthcoming, albeit that the report was expected before the end of August 2024. And whilst the plaintiff’s solicitor averred that “this unfortunate state of affairs have severely impacted on and severely hindered [his] ability to advance and progress this cause of action” he does not seem to have considered at any stage the practicality or necessity of seeking an alternative medico-legal report from another clinician, given the delays at Mr Moore’s end.

The plaintiff’s solicitor did, however, acknowledge the forbearance shown by the defendants’ solicitor to the difficulties that he (the plaintiff’s solicitor) encountered; and e. further, as regards Mr Moore, the plaintiff’s solicitor averred that he had actually written to Mr Moore on 17 April 2024 and before he became aware of the WOP correspondence referred to at §13.a above. The plaintiff’s solicitor further averred that he wrote to Mr Moore on 19 July 2024, putting him on notice of the application now before the Court, and it was following this letter that contact was made by Mr Moore with the plaintiff’s solicitor, whereupon it became clear that Mr Moore was under the mistaken apprehension that what was required from him was a liability/causation report, rather than a medico-legal report as to the injuries sustained by the plaintiff, his treatment to date and his prognosis for the future.

Once this misunderstanding had been addressed, Mr Moore indicated that a report would be forthcoming by 30 August 2024. And in a supplemental affidavit, sworn on 15 November 2024, the plaintiff’s solicitor exhibited a copy of Mr Moore’s report dated 15 August 2024. It is of note that this is a brief report, with the substantive report section being no more than two pages and indeed counsel for the plaintiff noted at hearing that the report was “pretty sparse on detail”.

14. The plaintiff’s solicitor then dealt with the “Delays to the Plaintiff’s treatment”

and whilst accepting that “these delays and difficulties with the Plaintiff’s treatment and recovery are not a cogent reason for the delays in prosecuting this cause of action”, the plaintiff’s solicitor averred that he believed that he had not “sat back on the advancement of this case and [he had] endeavoured to obtain information about the Plaintiff’s injuries and treatment (aside from waiting for the release of Mr. Moore’s medico-legal report) with a view to assisting, in particular, the procurement of an expert causation/liability report.”

15. It appears that the next sections of the replying affidavit under the headings:

• “Initial review of the Plaintiff’s injuries and treatment”

• “Medical reporting in relation to the Plaintiff’s injuries and treatment”

• “Additional information in relation to the Plaintiff’s injuries and treatment”

and

• “The conveying of this information to the Defendants”

set out what it is that the plaintiff’s solicitor believed to constitute ‘not sitting back on the advancement of the case’. The plaintiff’s solicitor averred that he obtained a medico-legal report from a Dr Brian Spillane, Sports and Orthopaedic Physician on 08 August 2007 and that this report, in conjunction with three reports (one report dated 20 December 2006 and two reports dated 27 June 2007) from a Dr Thomas Cummins (who was “relied upon to provide an initial screening opinion as a precursor to obtaining fully independent causation/liability reports from a qualified clinician in the UK”), were used to ground the pleas in the personal injuries summons, “together with the experience gleaned from other similar cases brought against other acute hospitals arising from infection control failures.”

16. However, it also appeared that apart from the aforesaid reports from Dr Spillane and Dr Cummins, the plaintiff’s solicitor did not seek to procure a report or reports from any expert/s other than Mr Moore (who was and is, it must be remembered, the plaintiff’s treating clinician) and it appears that the plaintiff’s solicitor was awaiting a medical reporting/condition (condition/prognosis) report from Mr Moore before engaging a UK expert to prepare a liability/causation report for disclosure to the defendants. At that time, therefore, the only other source of the plaintiff’s solicitor’s knowledge and information about the plaintiff’s treatment was from the plaintiff himself. The replying affidavit set out certain details about this treatment and whilst it is not necessary to particularise such treatment at this juncture, it should be noted that Mr Moore discussed certain medical matters with the plaintiff on 20 March 2019 and following on from this review, the plaintiff believed that a report would be forthcoming from Mr Moore, as did the plaintiff’s solicitor who “genuinely expected to finally receive Mr. Moore’s medico-legal report.”

17. It further appears that the plaintiff’s solicitor had some WOP communication with the defendants’ solicitor on 16 July 2020 and on 13 August 2020, and this communication on 13 August 2020 was his last correspondence with the defendants’ solicitor prior to receipt of the motion upon which the present application is grounded.

18. The plaintiff’s solicitor then averred that he could not “disagree that there [had] been significant delays in advancing same but ..… given the totality of the averments contained in [his] replying Affidavit, such delays are regrettable but excusable” and the plaintiff’s solicitor then dealt with each period of delay as set out by the defendants (see §8-§9 above). The plaintiff’s solicitor offered the following excuses/explanations – insofar as not already referred to in this judgment

– for the ‘complained of’ delays.

delay in provision of FOI documentation (2 years, 11.5 months)

- an FOI request was made of Tallaght Hospital on 29 March 2006, but documentation was not provided to the plaintiff until 13 March 2009 (albeit that the letter accompanying the documentation was dated 08 October 2008), and the review and analysis of this complex documentation by the plaintiff’s solicitor took many months;

replies to particulars – 07 January 2009 - 11 May 2012 (3 years, 4 months)

- the plaintiff was in and out of hospital during most of this time and “it was almost impossible to obtain meaningful instructions from the Plaintiff because of his ill health”;

- the particulars raised were complex and particulars 6, 7 and 8 highlighted the complexity of the litigation;

- the detailed information provided by the plaintiff in his replies to particulars was of assistance to the defendants “in their own information pathway”, no prejudice accrued to the defendants and “the alleged perceived delay in providing replies to particulars [was] entirely excusable”;

first tranche of discovery – 03 February 2010 - 31 May 2012 (2 years, 4 months)

- it was “regrettable that compliance with the said request for voluntary [sic] could not be completed without two Orders of this Honourable Court” and the “first tranche of medical records released to the Plaintiff were incomplete and ..… [he] had to go to extraordinary lengths to obtain the Plaintiff’s complete chart covering seven years from March, 2005 to July, 2012”;

- this period of delay was excusable, and he had to engage in “extensive correspondence” to procure records from Millbrook Lawns Health Centre, Tallaght, Dublin 22;

second tranche of discovery – 16 July 2012 - 16 December 2013 (1 year, 5 months)

- this period of delay was excusable and necessitated correspondence inter alia with the plaintiff’s former solicitor and the obtaining of the plaintiff’s up to date medical records/charts from Tallaght Hospital which were sought on 08 August 2012 but not provided until November 2013;

- whilst he was provided with inspection facilities at Tallaght Hospital on 25 September 2012, and he subsequently wrote to the defendants’ solicitor on

01 October 2012 with an update arising from such inspection, it was clear that “Tallaght Hospital would not provide Mr. Moore with the Plaintiff’s chart to enable him to review same in the Blackrock Clinic” and would only permit an on-site review at Tallaght Hospital;

- he was informed by September 2012 that “it could take 45 weeks (so almost a year) at that time to photocopy the Plaintiff’s chart from the date of his admission in 2005 up to Summer/Autumn 2012” and whilst the records were ready to be photocopied by December 2012, the records were not released to him until 13 November 2013;

particulars of special damage and GP records – 29 August 2014 - 07 October 2021 (7 years, 2 months)

- he spoke to and corresponded with a Vocational Rehabilitation Consultant in April 2019, with a view to procuring a vocational rehabilitation report regarding the plaintiff’s future employment opportunities but that he was advised that the medico-legal report from Mr Moore was a pre-requisite to such vocational rehabilitation report;

- upon a file review in March 2019, he realised that “there were shortcomings in the Section 7 non-personal information released by Tallaght Hospital in that the monthly figures for the incidence and prevalence of MRSA in Tallaght Hospital had not been tabled in the minutes of the meetings of the hospital’s Infection Control Committee” and he wrote to Tallaght Hospital on 27 March 2019 seeking further additional non-personal information, being the MRSA figures that were tabled at various meetings of Tallaght Hospital’s Infection Control Committee (“ICC”). A (holding) response was received on

16 May 2019, and he again wrote to Tallaght Hospital on 21 July 2020 and as of the date of swearing the replying affidavit, Tallaght Hospital had not yet replied to the March 2019 request;

- “given the co-mingling of without prejudice correspondence and communications and various without prejudice discussions during this alleged fourth period of delay, this alleged period of delay [was] also excusable”;

the last “proceeding/step” in the case – affidavit of discovery sworn by the plaintiff on 16 December 2013 (10 years, 5 months)

- he had prepared draft additional further particulars of negligence and breach of duty in July 2020 but had not finalised same pending the receipt of documentation from Tallaght Hospital (requested in March 2019) and that had same been delivered, the last proceeding delay could be arguably 4 years or thereabouts;

19. The plaintiff’s solicitor then went on to analyse the delay and absence of prejudice and averred that had he been aware of the correspondence from the defendants’ solicitor between 16 December 2020 and 07 October 2021 matters would have proceeded differently, in that he would have engaged with the defendants’ solicitor regarding his dealings with Mr Moore, obtaining an expert liability/causation report and a vocational report. And further, the plaintiff’s solicitor averred that had the plaintiff undergone certain treatment (which ultimately did not transpire), then meaningful particulars and expert reporting of the plaintiff’s loss of earnings and updated medical reporting would have been required in any event.

20. As regards prejudice, it was averred that “the Plaintiff does not allege professional negligence against any named professional of Tallaght Hospital or the HSE. At the core of his complaints/allegations is that there was a complete systems failure in the management and control of MRSA in the hospital both 6 months prior to and

6 months after his initial hospital admission during which his left leg became infected with MRSA.” And by reason of same, the non-personal information already provided by Tallaght Hospital spoke for itself as a factual record, not compromised by the passage of time or requiring human memory or recollection.

21. Lastly, the plaintiff’s solicitor expressed his regret at the delay and set out the steps he intended to take should I refuse the reliefs sought by the defendants. And he averred that it would have been unthinkable for the plaintiff to have to instruct an alternative clinician to provide the report sought from Mr Moore, as he was the plaintiff’s treating clinician.

22. In his supplemental affidavit, the plaintiff’s solicitor also averred to obtaining a screening report on liability and that a preliminary assessment (which was supportive of the plaintiff’s pleaded case in negligence) was received on 16 October 2024, following on from which he intended seeking an expert liability report from a Consultant Microbiologist whom he had previously instructed in other similar cases. Further, a report from a Vocational Rehabilitation Consultant had been sought regarding the plaintiff’s prospects and loss of earnings, given that the plaintiff was unlikely to return to work.

23. Lastly, in his supplemental affidavit, the plaintiff’s solicitor averred to the fact that the defendants had not yet delivered a defence and had not indicated their position on liability and that he had served a further notice of intention to proceed on 31 October 2024 “with the intention of furnishing to Arthur Cox LLP Solicitors updated particulars arising from Mr. Moore’s report and to faciliate [sic] such

further steps as may be necessary to ensure the readiness of the case for trial, in the event in the event [sic] this Honourable Court sees fit to allow it.”

The defendants’ supplemental affidavit (09 December 2024)

24. The final affidavit, in reply to the plaintiff’s affidavits, was sworn on behalf of the defendants by Kate O’Donohoe on 09 December 2024, in which she noted that:

- there appeared to be a concession by the plaintiff’s solicitor that the delay was inordinate [it should be noted that counsel for the plaintiff conceded inordinate delay at hearing];

- the plaintiff did not address the fact that it appeared that he never swore a verifying affidavit in respect of the proceedings as required by RSC O.5A, r.7 and in breach of s.14(a) of the Civil Liability and Courts Act 2004 [it should be noted that counsel for the plaintiff accepted in oral submissions that there should have been a verifying affidavit and he did not have an explanation for its absence, but that the consequences of not swearing a verifying affidavit could be dealt with by the Court hearing the substantive case, not this Court hearing the application to dismiss];

- not all the correspondence with Tallaght Hospital regarding the initial FOI request was exhibited but that, in any event, “in the presence of precommencement delay, there is a special obligation of expedition on a plaintiff to move matters forward once proceedings are commenced”;

- as regards the delay in replying to particulars,

• no documentation or medical records were exhibited to evidence the plaintiff’s ill-health (which it was claimed meant that instructions could not be obtained from him) and that without further detail, this explanation was neither reasonable nor credible and was not “a real and justifying excuse in respect of the delay”;

• albeit that the complexity of the litigation was claimed to be a factor in the delay, the plaintiff did not correlate how the replies to particulars (and, in particular, replies 6, 7 and 8) had any connection to the period of delay;

- as regards the delay regarding the first tranche of discovery,

• as of 27 June 2007 (when Dr Spillane advised the plaintiff’s solicitor that the plaintiff’s chart did not contain any “consultant/consultant or consultant/GP letters” as he would have expected) the plaintiff’s solicitor was aware of the issue of incomplete records;

• there was no evidence of the “extraordinary lengths” that the plaintiff’s solicitor claimed he had to go to in order to get the plaintiff’s complete chart;

• there was no evidence of the “extensive correspondence” sent in an attempt to procure the plaintiff’s medical records;

• bald assertions, without more, did not suffice as evidence and did not provide any explanation/s for the delay;

- as regards the delay in obtaining the plaintiff’s medical records,

• no relevant correspondence was referred to in the replying affidavit or exhibited thereto;

• there was no evidence provided as to the “protracted administrative difficulties” encountered by the plaintiff’s solicitor;

- as regards Mr Moore,

• there was a delay in excess of 9 months between the plaintiff’s solicitor instructing Mr Moore on 11 May 2007 and following up with Mr Moore on 27 February 2008;

• there was a delay in excess of 3 years, 9 months between Mr Moore examining the plaintiff on 22 April 2008 and when the plaintiff’s solicitor sought a report on 16 February 2012;

• Mr Moore requested the plaintiff’s chart from Tallaght Hospital in excess of 5 years, 5 months following instruction (with no explanation being provided for same);

• albeit that the plaintiff’s solicitor stated that he had “corresponded with Mr Moore on some 30 occasions”, there were significant gaps and passages of time within the entire period, such as between 03 September 2014 and 28 February 2019, a period in excess of 4 years, 5 months, for which no explanation was given;

• given the delay incurred by awaiting the report from Mr Moore, it would have been appropriate to withdraw instructions and secure another medico-legal report;

• a breakdown in communication may have arisen (vis-à-vis the fact that a condition/prognosis report was required as opposed to a liability/causation report) but to have allowed such breakdown to continue and persist for in excess of 17 years was unreasonable and unacceptable and the plaintiff’s solicitor should have instructed another expert in the interests of the administration of justice;

• the plaintiff’s solicitor still did not have an expert report to ground the proceedings and/or other reports and thus, further delay would ensue should the plaintiff’s case be allowed to continue;

- as regards particulars of special damage and GP records,

• there were still no reports to ground the plaintiff’s special damages claim, following which the plaintiff’s claim would have to be particularised and the defendants may then need to raise particulars and “from this information and from common experience ..… a significant amount of work in preparation will be required before this matter is ready to proceed to trial and that this may take a further significant amount of time.”

- as regards the last communication to the plaintiff’s solicitor,

• no further explanation was given as to how the correspondence of 07 October 2021 did not come to the plaintiff’s solicitor’s attention until 30 May 2024 and/or whether it was being dealt with by other members of staff;

- as regards the last “proceeding/step” in the case,

• it was wholly inappropriate to attempt to argue a possibility of what might have been a later “proceeding” (i.e., draft additional further particulars of negligence and breach of duty).

25. Further, and as regards prejudice, the defendants’ solicitor averred that:

- this was, without doubt, a medical negligence action and at no stage was it indicated in the personal injuries summons that it was issued by way of protective writ;

- whilst the plaintiff contended that there was no allegation of “professional negligence against any named professional of Tallaght Hospital or the HSE”, the fourthand fifth-named defendants were described in the personal injuries summons as “operating in respect of the running of health and personal social services and provide healthcare services to the general public, respectively” and it was a case of professional negligence being alleged as against organisations responsible for health care;

- the plaintiff’s solicitor’s contention that the defendants had not identified any specific prejudice was without merit since absent an expert report and particularisation of the plaintiff’s claim based upon same, the defendants did not fully know what case was being made out against them and therefore they could not identify specific prejudice;

- the perpetuation of a case for 17 years, 9 months without an expert report and/or any evidential basis was an abuse/gross abuse of process, which in and of itself was a prejudice to the defendants;

- if the matter were to proceed to trial, it would not simply be a documentsonly case and oral evidence would be required as to the care afforded to the plaintiff, and whilst allegations had not been made against named individuals, that did not mean that individuals would not be involved in the litigation;

- delay could seriously hamper the defendants’ ability to investigate the claim.

26. And the defendants’ solicitor then went on to aver that:

“ ….. in the totality of the evidence, there is clearly an inordinate and inexcusable delay in the prosecution of these proceedings by the plaintiff, and ..… the plaintiff’s replying and supplemental affidavit do not supply any cogent or appropriate reasons in the justification for this delay in circumstances where the crux of the plaintiff’s position seems to be that the case could not be progressed in the absence of a report from Mr Moore ..… the evidence presented by the plaintiff in this respect, does not display any sense of urgency at any stage in relation to the progressing of this matter ….. any recent progress which may have been made, but which is still currently not clear nor certain, has only been made since the issuing of the application by the defendants ..… if this matter were allowed to proceed, it would still require a significant amount of time to progress and come to trial.

..… the plaintiff is guilty of a want of prosecution of his case and is guilty of inordinate and inexcusable delay in this respect such that the balance of justice requires the dismissal of these proceedings.”

27. In addition to matters set out on affidavit and as referred to above, a booklet of WOP correspondence (comprising some 22 separate items, dating from 19 August 2015 to 07 October 2021) was prepared by the defendants’ solicitor for the purpose of the present application and I had sight of same, with the agreement of the plaintiff, in the context of the hearing. And further, the plaintiff’s expert report on liability/causation, dated 13 December 2024 from Dr Michael Rothburn, Consultant Medical Microbiologist, was handed in to court at the commencement of the hearing, by agreement, rather than such report being exhibited in a further affidavit.

28. Lastly, it should be noted that, in addition to the very helpful oral submissions on behalf of the defendants and the plaintiff, I had the benefit of comprehensive written legal submissions, and I also had the benefit of a stenographer’s transcript.

It should also be noted that whilst I heard the present application prior to the Supreme Court decision in Kirwan v. Connors & ors [2025] IESC 21 being handed down (see the ‘Discussion’ section below), I invited the parties to make supplemental written legal submissions in light of Kirwan, which they very helpfully provided in late July 2025. In coming to my decision, I have focussed on the parties’ oral submissions and the supplemental submissions, but I have also taken account of the prior written submissions where appropriate.

Discussion

29. Any discussion regarding an application such as the present application must necessarily commence with the decision of the Supreme Court on 30 May 2025 in Kirwan, and in deciding Kirwan, the Supreme Court availed of an opportunity to review the then existing jurisprudence regarding delay, dating from the test first outlined in Primor v. Stokes Kennedy Crowley [1996] 2 IR 459. Given that Kirwan has substantially reformulated the Primor approach to delay, the most appropriate manner in which to discuss the present application is to view the plaintiff’s delay through the Kirwan lens.

30. 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

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);

31. In addition to the foregoing principles, O’Donnell CJ, at §26 of his judgment, adopting the test set out by Murray J, at §53-54 of his judgment, set out that that:

“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 out in the judgment of Murray J. at paragraphs 53 and 54 and with which I understand Hogan J. agrees. That means that:- …..

iv) ….. 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 proceedings unless satisfied there is a pressing exigency of justice that requires that the case be permitted to go to trial. This will 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 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 [that “cases in which extraordinary factors ….. 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”].

32. Furthermore, where the delay is less than this high-water mark of a five-year cumulative period of complete inactivity, O’Donnell CJ set out following parameters at §26:

- firstly, where there has been inactivity for less than two years, the claim should only be dismissed if the claim is an abuse of process, or if there is prejudice to the defendant to the level required to ground an application under the O’Domhnaill v. Merrick jurisdiction (i.e., where there is a real and serious risk of an unfair trial and/or an unjust result, and such test should only be applied in “exceptional” cases per Stack J in Byrne v. McGreevy & ors [2021] IEHC 772, at §30);

- secondly, after two years of total inactivity, a claim may be dismissed for want of prosecution, but such claim should only be dismissed if the defendant can identify some additional element of prejudice (other than delay) or another factor which would point towards dismissal; and

- thirdly, after four years of total inactivity then the claim should be dismissed if it is dependent on oral evidence, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and should go to trial. And whilst specific prejudice to the defendant would strengthen the case for dismissal, it is not necessary after four years of total inactivity to point to any such factor since the passage of time is, in and of itself, enough to justify dismissal.

33. And then, as regards borderline cases, O’Donnell CJ noted, at §27 of his judgment, that:

“….. the test is not mechanical, and it remains a matter for judgment, and it will remain conceivable that individual judges may take different views in borderline cases. This is an unavoidable and necessary feature of a legal system. The purpose of the jurisprudence should not be to attempt to dictate the outcome of the marginal cases but instead provide sufficient guidance to allow most cases to be resolved without protracted hearings and lengthy appeals. This refinement of the Primor test should permit more applications to be decided speedily and provide a structure for more finely balanced claims to be focussed on the key issues. It is important both to recognise the significance of lapse of time in relation to the jurisdiction, and highlight that factor in the test to be applied. In any other field of activity, two years is a very long time to do nothing. The administration of justice should not be different.”

34. Before applying these principles to the present application, it is clear that the Supreme Court in Kirwan has focussed on ‘inactivity’ as pre-condition to striking out for delay, rather than ‘no proceeding’ as is the wording in O.122, r.11 which states:

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule.”

35. This focus was considered by Dignam J in Doyle v. The Commissioner of An Garda Síochána [2025] IEHC 591, in which he stated at §34-§35:

“It is long-established that a “proceeding” within the meaning of Order 122 Rule 11 refers to the taking of a formal step in the proceedings (a “step” does not include service of a Notice of Intention to Proceed or a Notice of Change of Solicitor). The test set out by O’Donnell CJ in paragraph 26(i) – (iv) does not refer to a failure to take a step in the proceedings but rather to “inactivity”, and “total inactivity” and “complete inactivity”. However, it seems to me that for the purpose of calculating the period of delay, “inactivity” means inactivity within the proceedings or the absence of a formal step in the proceedings. Given that Order 122 Rule 11 is placed at the centre of the approach, it seems to me that in the absence of a clear statement by the Supreme Court that it was departing from the earlier jurisprudence that ‘proceeding’ means a formal step in the proceedings, the “inactivity” referred to must be inactivity in the proceedings in the sense of there being no formal step in the proceedings.

Activity outside of formal steps in the proceedings can and, in many cases, must, be taken into account but this is not for the purpose of calculating the actual delay. Rather it is for the purpose of assessing whether the delay or inactivity in the proceedings is explained and for the purpose of determining whether, in all the circumstances, the case should be dismissed.”

36. Thus, and in applying the Kirwan principles to the present application, the (significant) inactivity on the plaintiff’s part must firstly be considered, before looking to explanations and whether, in the words of O’Donnell CJ, “there is a pressing exigency of justice that requires that the case be permitted to go to trial”

whilst also noting that, again in the words of O’Donnell CJ at §29 “it is nevertheless important that courts retain a degree of flexibility and should remain astute to ensure that justice in its broadest sense is done.”

37. However, prior to discussing the delay on the plaintiff’s part, it is appropriate that I address some other matters that were brought to my attention during the hearing or that came to my attention when reviewing the papers and in preparation of this judgment.

38. Much of the defendants’ case at hearing centred around the defendants’ contentions that:

a. the plaintiff’s claim was one in professional negligence [to which counsel for the plaintiff replied to the effect that it was a ‘systems case’ and not a professional negligence case directed to any particular individual professional and that by reason of same the plaintiff’s plea of res ipsa loquitur was of significance since the plaintiff would never be in a position to prove that a particular individual failed to properly wash their hands thereby causing him to become colonised and infected with MRSA; rather the plaintiff had to establish on the balance of probabilities that failures associated with those systems of infection-control caused his injuries];

b. the plaintiff had yet to obtain an expert report to substantiate that which was pleaded in the personal injuries summons [to which counsel for the plaintiff replied to the effect that a) the report from Dr Rothburn reflected what was pleaded and what was contained in the replies to particulars; b) the decision of the Supreme Court in Cooke v. Cronin & anor [1999] IESC 54 (relied upon by the defendants) established that there had to be an evidential basis upon which claim was based – or per Lynch J in Cooke in the penultimate paragraph, “there should be some credible evidence to support the plaintiff’s case” – prior to the issue of proceedings, rather than requiring that an expert report be obtained; and c) in any event an application to dismiss the proceedings on the basis that an expert report may not result in a successful outcome for the plaintiff was not an application that was known at law and that an application of that type was more appropriately made by way of an application for a direction at the end of the plaintiff’s case at substantive hearing];

c. the report from Dr Rothburn only dealt with causation, not liability;

d. in the absence of an expert report from the plaintiff, the defendants did not know what case they had to meet [to which counsel for the plaintiff replied to the effect that a) the particulars of negligence in the personal injuries summons were quite specific; b) the replies to particulars set out the plaintiff’s case in even greater detail; and c) in the ordinary course of events, the defendants should deliver a defence long before they were ever provided with a copy of the plaintiff’s expert report/s pursuant to the disclosure rules as set out in SI 391/98 – Rules of the Superior Courts (No 6)(Disclosure of Reports and Statements) 1998];

e. the defendants did not know what witnesses they would need to call, where they were, if they were retired/deceased etc., [to which counsel for the plaintiff again replied to the effect that it was a ‘systems case’ and not a professional negligence case directed to any particular individual professional and, by way of written submissions, that it appeared that the fifth-named defendant had made no effort to identify what witnesses might be available to address the allegations made and, in any event, the focus of the plaintiff’s claim was based on the fifth-named defendant’s own records rather than the actions of individuals]; and f. in the circumstances, there was probably another two years before the case could realistically be heard.

39. In the context of the present application it is not necessary for me to resolve the issue of whether the plaintiff’s claim is one in professional negligence or a ‘systems case’ – or indeed whether or not the plaintiff’s expert report from Dr Rothburn is sufficient to substantiate the plaintiff’s claim – but I do note that:

a. as early as 03 March 2008 the defendants’ solicitor wrote to the plaintiff’s solicitor stating that they were “currently investigating this matter and seeking expert reports in respect of the allegations of negligence” (just under one year following the issue of the personal injuries summons and some sixand-a-half months following the entry of an appearance for the fifth-named defendant);

b. following receipt of the replies to particulars dated 11 May 2012 (some of which are very detailed, being replies 6, 7 & 8 as referred to at §18 above), the defendants’ solicitor did not seek further and better particulars or any additional information; and

c. the defendants’ complaints on affidavit that that i) the proceedings were “unsubstantiated” and/or “protective” and ii) that the plaintiff’s case was “unarticulated”, were never raised by way of correspondence and neither did the defendants ever seek any relief as regards deficiency in pleading from the plaintiff’s perspective;

and it does not appear to me that the defendants can now complain that they still do not know the case that they have to meet. The purpose of pleadings is to set out in a summary form “the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved” pursuant to RSC O.19, r.3 and, for example, in Permanent TSB v. Langan [2022] IEHC 722, Baker J noted:

“[22] A pleading must contain a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved.

Daniell’s Chancery Practice (8th edition, Vol. 1, 1914) sets out this old rule at page 323, and goes on to say that it is not sufficient for a plaintiff to aver that he is entitled to sue or that a defendant is liable, but that he must state in his pleadings the facts which give him that title, or which impose on the defendant that liability. Thus, it is the purpose and the nature of pleadings to identify the cause of action, the nature and basis of the claim, and the reason why it is asserted that a defendant is liable to the plaintiff in respect of the cause of action sought to be maintained.

…..

[26] The Irish leading text on practice and procedure, Biehler and others, Delany and McGrath on Civil Procedure (4th ed., Round Hall, 2018), states (para. 5-02) the general proposition that a pleading should set out the claim or defence of a party concisely with a view to identifying the issues between the parties, and quotes from the dicta of Fitzgerald J. in Mahon v. Celbridge Spinning Company Ltd [1967] I.R. 1 (at p. 3) that a party “should know in advance, in broad outline, the case it had to meet at the trial”

40. Whilst the pleadings from a plaintiff’s perspective in a case such as this would ordinarily be substantiated by an expert report, the expert report in and of itself is not a pleading, but rather a written form of the evidence upon which the plaintiff will seek to rely at hearing. Once a defence has been delivered by a defendant and if additional reports are received by a plaintiff thereafter, the pertinent contents of those reports should be pleaded by way of further and better particulars of negligence, but that does not obviate the requirement for a defendant to deliver a defence at an earlier stage in the proceedings. RSC O.19, r.7(3) provides that “[p]articulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered” and whatever about a defence not being delivered pending particulars being provided (and of course detailed particulars were provided in the present case), it has never been the case that a defendant is entitled to have sight of an expert report prior to delivering its defence.

41. Separately, the defendants sought a copy of the “Plaintiff’s records held at Tallaght Hospital relating to the Plaintiff’s treatment from 2007 to date” by way of request for voluntary discovery dated 16 July 2012 (being the request referred to at §8.c above – the second tranche of discovery) and the reason given for that request was that “[t]hese records are required in order to provide same to our medical expert to provide an informed opinion on causation, condition and prognosis.” There is no reference, even at that later stage, to the fact that the defendants might need sight of the plaintiff’s expert report to assist the defendants’ medical expert in providing an informed opinion on causation and the inference that can reasonably be drawn from that 16 July 2012 request is that the defendants were intending to procure their own “informed opinion on causation ….. ” once discovery had been made by the plaintiff (which said discovery was made on 12 December 2013).

42. The plaintiff’s solicitor replied to that request for voluntary discovery just three days later – by letter dated 19 July 2012 – and as regards the request for the “Plaintiff’s records held at Tallaght Hospital relating to the Plaintiff’s treatment from 2007 to date” the plaintiff’s solicitor noted that he had:

“today made arrangements for [the plaintiff] to make application to Tallaght Hospital for a copy of his complete chart from March, 2005 to date under the Freedom of Information Acts. A copy of his records held at Tallaght Hospital relating to his treatment from 2007 to date will be furnished to you as soon as is reasonably practicable. We should point out that when the Plaintiff made his initial request for his records in October, 2005 (for the period March, 2005 to October, 2005) a considerable period of time elapsed before he received those records. In fact the Plaintiff did not receive them until 2006. Accordingly we must advise that it would be impossible for the Plaintiff to commit to providing you with 5 years of medical records within 4 weeks but we will obtain from the FOI Officer in Tallaght Hospital an estimated time in which the records can reasonably be expected to be made available to us. We will, at a later date, require inspection facilities to inspect the Plaintiff’s original chart.”

43. This reply from the plaintiff’s solicitor was then followed up with further correspondence from him, updating the defendants’ solicitor, dated 07 August 2012, 21 August 2012 and 01 October 2012 and in the letter of 01 October 2012 the plaintiff’s solicitor noted that:

“the Plaintiff’s original chart in your client’s hospital is contained in 5 volumes.

Volumes 4 and 5 cover the requested period from 2007 to date. We inspected the original chart/5 volumes at the Adelaide and Meath Hospital on the 25th of September, 2012. If a copy is to be made of the entire chart this could take some

45 weeks given the limited resources the hospital has to deal with FOI requests, photocopying etc. However, we are working closely with the hospital’s FOI Officer, Ms. Catherine O‘Toole to overcome these difficulties and we await hearing from her with a view to providing you with a timeframe as to when the Category 3 documents can be made available to you.”

44. Unfortunately, there was indeed a significant delay on the part of the plaintiff in obtaining his medical records (and indeed there would still appear to be one FOI request outstanding – see §9.d above) but it appears to me that not all of this delay can be laid at the door of the plaintiff and, in addition to the difficulties encountered by the plaintiff in obtaining the documentation by way of FOI request, it is of note that by letter dated 09 May 2013, the defendants’ solicitor corresponded with the plaintiff’s solicitor to the effect that:

“Separately, in relation to the records from Tallaght Hospital we have been instructed to take up a copy of these directly from the hospital. However our client has very clearly instructed us that it is up to your client to take up a copy of the records if you require same and to address same in the usual way in the Affidavit of Discovery. Our instructions are not to furnish you with copies of records which we take up from Tallaght or indeed the HSE Centre referred to above [HSE Wound Clinic in Tallaght/HSE Wound Clinic in Crumlin Road Health Centre]. The Defendant cannot make discovery on behalf of the Plaintiff.”

And to which the plaintiff’s solicitor replied by way of letter dated 28 May 2013 “I have done everything possible to procure all outstanding records in relation to this case and in particular the Plaintiffs chart and this even included travelling to Dublin to inspect the five volumes of medical records that make up his chart. If you are getting his chart I can not understand why your principals have instructed you not to provide us with a copy.”

45. This lack of cooperation on the part of the defendants cannot be ignored and whilst not argued before me, it is important to note in passing that discovery may not always be necessary where the documents sought can be gathered by ordinary inspection (i.e., where the documents sought on discovery were already within the requester’s power, procurement or possession). In Ryanair Dac v. SC Vola.Ro Srl & anor [2021] IEHC 788, Sanfey J noted at §32 and as regards necessity:

“….. where alternative means of proof are available to an applicant, documents may not be ‘necessary’ (Ryanair v. Aer Rianta, 277). For example, where evidence can be gathered by ordinary inspection (PJ Carroll & Co. Ltd. v.

Minister for Health [2006] 3 IR 431, para. 17) ….. documents might not be “necessary” ”

46. Additionally, Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure, 3rd Ed., (Round Hall, 2019) note at §6-62 and §6-64:

“….. the courts will be prepared to refuse discovery where satisfied that the applicant does not require the documents because he or she already has available to him or her adequate alternative sources of proving the issue to which the documents in question relate. However, the circumstances in which discovery has actually been declined on this point are limited and the two reported cases in which discovery was refused are capable of being distinguished.

…..

In light of this, it must be considered that a refusal of discovery on the grounds that the applicant already has sufficient sources of evidence available to him or her will be treated as the exception rather than the norm.”

47. There is also the issue raised by the defendants at hearing that the plaintiff chose to obtain information from Tallaght Hospital by way of FOI request (as opposed to seeking discovery from the defendants) and whilst the defendants acknowledged that the choice of vehicle by which to obtain information was the plaintiff’s prerogative, I cannot ignore the fact that the entity from whom the plaintiff sought much of this FOI documentation was, in fact, the fifth-named defendant and thus, the delay in providing the FOI documentation to the plaintiff was in the fifth-named defendant’s control.

48. It is also clear that the defendants, in attempting to progress the discovery of the plaintiff’s public health records, corresponded with the plaintiff’s solicitor on 23 October 2012 to the effect that whilst it was a matter for the plaintiff “to make discovery on foot of a request from our client, we may take the exceptional step of asking your client to provide our client with a letter of authority so that our client can contact this section of the HSE to see if they can progress the matter. Please note that this is not to be taken as a precedent in relation to any cases going forward” and the defendants ultimately took that course of action, a letter of authority having been provided by the plaintiff. Whilst this may have assisted in obtaining the plaintiff’s public health records, the mixed messaging from the defendants vis-à-vis how they went about obtaining different portions of the plaintiff’s documentation is curious to say the least and given that much of the discovery sought was in the defendants’ control, it does not seem to me that the defendants can rely on the plaintiff’s delay in obtaining same.

49. It is also of note that the defendants resisted the plaintiff’s request that they pay for the photocopying of the FOI documentation which, pursuant to s.27(4) of the Freedom of Information Act 2014, should have been made available to the plaintiff and in determining whether or not a charge should have applied, the plaintiff’s means [the plaintiff was at that stage unemployed] ought to have been taken into account. Section 27(4) states:

“Where the record or records concerned contains or contain only personal information relating to the requester concerned the charge under subsection (1)

[search, retrieval, and copying charges] shall not be made, unless the grant concerned relates to a significant number of records, and in considering whether or not such a charge shall be made, the means of the requester shall be taken into account.”

A letter dated 12 October 2012 from the plaintiff’s solicitor stated, as regards the same records, “the photocopying of same will cost in the region of €460.00. Can you please indicate if your client/instructing principals are prepared to pay this fee” to which the defendants’ solicitor replied on 26 October 2012 to the effect that they had reviewed the plaintiff’s solicitor’s correspondence from July to October, they had written to their client and they hoped to be in a position to respond to same in the next couple of weeks. A reminder was sent to the defendants’ solicitor on

06 November 2012 and by letter dated 04 December 2012, the plaintiff’s solicitor noted, as regards the medical records that he had “liaised closely with the FOI Officer of the Adelaide and Meath Hospital, Ms. Catherine O’Toole and these records are now ready to be photocopied. As previously enquired of you, would your client/instructing principals be prepared to pay this fee to expedite the prompt release of these records.”

50. A reply, dated 01 February 2013, was received from the defendants’ solicitor stating that “our client has confirmed that the State Claims Agency do not discharge fees incurred by Plaintiffs in complying with their obligations for Discovery but in the event that a Plaintiff is successful in his/her action, the costs will form part of the fees discharged at the conclusion of the proceedings”, following on from which, a response dated 04 February 2013 from the plaintiff’s solicitor stated:

“You will be aware generally of the delays and difficulties in procuring charts from this hospital and Ms. O’Toole is prepared to fast track the photocopying of these documents if an overtime charge of €460.00 is paid to the hospital. We would have thought that as the hospital is your client that your client would photocopy these documents for you.

To expedite matters we have inspected or [sic] client’s entire chart and it is contained in 5 volumes. Volumes 4 and 5 cover the period from 2007 to date.

In the circumstances therefore we can not agree to providing you with a copy of the Category 3 documents within 8 weeks. We have previously advised that it could take some 45 weeks for the 5 volumes to be photocopied given the limited resources that the hospital has to deal with FOI requests, photocopying etc.

Furthermore, our client is unemployed and he can not afford the cost of this photocopying and indeed as our client is the holder of a medical card he should not have to pay for the cost of his charts been [sic] made available to him.

However we are obtaining our client’s further and additional instructions as to discharging the requested fee to have the documents photocopied and we will revert shortly in that regard.”

51. It appears that the fifth-named defendant’s FOI department were looking to apply a charge to cover the overtime required to photocopy the FOI documentation and whilst this matter was not raised at hearing, it seems to me that at least some of the delay during this period can be laid at the fifth-named defendant’s door, in terms

of the delay in providing the FOI documentation and their unwillingness to cover the cost of same.

52. Ultimately, and in any event, an affidavit of discovery/affidavit as to documents was sworn by the plaintiff on 12 December 2013.

First period of delay – replies to particulars – 3 years, 4 months

53. Looking to each of the periods of delay complained of by the defendants, it appears that the plaintiff’s solicitor had significant difficulties in obtaining the plaintiff’s records from Tallaght Hospital from March 2006 to March 2009 and from August 2012 to November 2013 as averred to at §18 above.

54. Separately, it cannot be gainsaid that the plaintiff had a torrid time following his accident on 20 March 2005 (in support of this view, it should be noted that I had sight of various medical reports which were exhibited to the plaintiff’s solicitor’s replying affidavit, the details of which do not need to be repeated here) and whilst the plaintiff’s initial treatment in hospital is not complained of, his claim in the context of the within proceedings stems from him having contracted an MRSA infection in or around April/May 2005. Thereafter, the plaintiff spent a considerable amount of time in hospital and I accept the plaintiff’s solicitor’s averment – by way of explanation for the first period of delay complained of by the defendants, and as set out at §18 above – that “it was almost impossible to obtain meaningful instructions from the Plaintiff because of his ill health” during this period of time. That is not to say, as I understood it, that the plaintiff lacked capacity but rather that he had spent significant amounts of time in hospital due to the nature of his difficulties and the lack of wound recovery by reason of the MRSA infection. It is understandable therefore that the plaintiff’s focus at this point in time, and early in the proceeding’s timeline, was on his recovery rather than the immediate progression of his legal case.

55. It is also the case as regards this first period of delay complained of by the defendants that the plaintiff provided detailed replies to particulars and to evidence his input into same, the plaintiff’s solicitor exhibited a 12-page ‘file memo’ dated

11 November 2009 in his replying affidavit, detailing his review of the “Section 7 Documentation from Tallaght Hospital”. There is no doubt but that the review of the plaintiff’s records and the compilation of such ‘file memo’ took a considerable period of time and considerable work went into preparing it, and the subsequent replies to particulars are detailed in the extreme.

56. Thus, whilst this first period of delay is greater than two years, I am satisfied that the plaintiff’s solicitor has provided explanations for same. Murray J, in Kirwan at §47(i), is very clear that:

“A plaintiff can be prosecuting their action without taking procedural steps in the case: by corresponding with the defendants, considering discovery, taking legal advice, seeking to identify witnesses of fact or experts, liaising with those witnesses, taking a reasonable time to await compliance by the defendant with obligations imposed on it by the Rules or Court Order, and the like. Obviously, a plaintiff who is engaged in the foregoing falls to be treated differently from a plaintiff who both allows two years to pass without taking any action in the case, and who is doing nothing else whatsoever to advance their claim” (emphasis supplied)

and at §47(iii) Murray J stated:

“The courts are well practised at identifying when there is a legitimate explanation for lengthy delays: illness, incapacity, bona fide attempts to settle or to mediate the action and the like. Clearly, in such cases, it is appropriate to view the delay as ‘excusable’ and to extract such periods from the calculation.”

(emphasis supplied)

And in all of the circumstances, I am satisfied that the plaintiff’s solicitor did not allow this period of time to pass without taking any action in the case.

Second period of delay – first tranche of discovery – 2 years, 3 months, 28 days

57. Moving to the second period of delay complained of, I accept that there was a delay on the part of the plaintiff in making the first tranche of discovery and the plaintiff’s solicitor’s explanation for such delay is grossly lacking in detail. That being so, I accept the defendants’ solicitor’s view, as set out at §24 above, that “bald assertions, without more, did not suffice as evidence and did not provide any explanation/s for the delay.” And it appears that my previous comments (as regards the discovery documentation being in the control of the fifth-named defendant) do not apply to this first tranche of discovery since this first tranche of discovery related to GP records, St James’s Hospital records and Public Health Nurse records, none of which were in the fifth-named defendant’s control. And thus, any leniency that might be shown to the plaintiff as regards this second period of delay must be viewed in light of the exigency of justice, which is discussed in greater detail at §75 hereunder.

Third period of delay – second tranche of discovery – 1 year, 5 months

58. This period of delay has largely been dealt with at §41-§51 above and given the explanations as provided by the plaintiff’s solicitor, I am of the view that such period of delay is excusable and ought not be counted in the calculation of any period of delay.

Fourth period of delay – particulars of special damage and GP records – 7 years, 2 months

59. This period of delay commenced in August 2014 but unfortunately, from the plaintiff’s perspective, the explanations provided by his solicitor on affidavit for this very lengthy delay focus on 2019 and onwards, and an explanation is given that in April 2019 the plaintiff’s solicitor spoke to a Vocational Rehabilitation Consultant but that a medico-legal report from Mr Moore was a pre-requisite.

There is no real effort, or indeed any effort, to explain the delay from August 2014 to April 2019, a delay of almost five years, and whilst there was some WOP correspondence in this period, it does not appear to me that the plaintiff’s solicitor’s activity was such that it can justify, excuse or explain the delay.

60. At least part of this delay can be attributed to the plaintiff’s solicitor’s view in December 2013 that “the litigation pathway for the Plaintiff envisaged at that time was that upon receipt of Mr. Moore’s medical reporting/condition report, the Plaintiff’s medical records would also be released to this office and our UK expert would be engaged to prepare a causation and liability report suitable for disclosure” as averred to in his replying affidavit. It is not entirely clear as to whether the plaintiff’s solicitor was of the view that a condition/prognosis report (from Mr Moore) was a precursor to procuring a report on liability/causation or whether the procuring of a liability/causation report was hampered by the fact that there was only one set of medical records and that these records had been delivered to Mr Moore by the plaintiff’s solicitor in December 2013. If the latter were the case (and from the plaintiff’s counsel’s oral submissions this would appear to be the situation), there was nothing preventing the plaintiff’s solicitor from retrieving the records from Mr Moore, photocopying them and delivering one set back to Mr Moore for the purpose of preparing his report. Indeed, had this step been taken, the misunderstanding from Mr Moore’s perspective as to the type of report required from him may have come to light much earlier.

61. It is of course entirely understandable that the plaintiff’s solicitor sought a condition/prognosis report from Mr Moore, the plaintiff’s treating clinician, and had the plaintiff’s solicitor not sought such report, he would have fallen foul of the dicta of Barr J in Dardis v. Poplovka (No 1) [2017] IEHC 149 and the difficulties encountered when the doctor providing a medico-legal report is a reporting doctor as opposed to a treating doctor. However, had the progression of the plaintiff’s claim been managed appropriately by the plaintiff’s solicitor there would have come a ‘point in time’ – subsequent to the delivery of the plaintiff’s records to Mr Moore in December 2013 – by which the plaintiff’s solicitor might have attempted to make contact with Mr Moore other than by letters which were repeatedly unanswered or telephone calls to his secretary which did not yield a response from Mr Moore. Whilst this ‘point in time’ should have come at some stage in 2014, it is entirely unacceptable that Mr Moore’s misunderstanding as to what was required of him only came to light subsequent to the plaintiff’s solicitor sending his letter dated 19 July 2024. This is all the more so when the first letter from the plaintiff’s solicitor, dated 11 May 2007, was very clear as to its purpose – and that was that the plaintiff’s solicitor was seeking a medico-legal report detailing:

“ 1. [the plaintiff’s] present complaints ….. ;

2. the examination and tests carried out and [Mr Moore’s] findings;

3. the treatment (giving the drugs and so forth by name);

4. the progress made by [the plaintiff] and an opinion as to the likely future treatment and prognosis.”

62. Leaving aside the fact that Mr Moore – as the plaintiff’s treating clinician – should not necessarily have had to have access to all the plaintiff’s records in the context of providing a condition/prognosis report, given that he was in receipt of the plaintiff’s records from December 2013, a delay of 10-and-a-half years prior to the plaintiff’s solicitor having a conversation with him simply cannot be disregarded and this is a hurdle that cannot be overcome by the plaintiff in my view. It was only in the letter of 19 July 2024 to Mr Moore that the plaintiff’s solicitor adverted to obtaining an opinion from an alternative clinician and this possible course of action should have been contemplated at a much earlier point in time (in or around 2014) and not in the context of having received a motion to dismiss. And also, as regards Mr Moore, the plaintiff’s counsel conceded at hearing that there was a period between 2014 and 2017 where he was not being corresponded with at all.

63. There is also a further anomaly between what was required of Mr Moore per the letter of 11 May 2007 (i.e., a condition/prognosis report) and that which was set out in the plaintiff’s original submissions, which suggested that Mr Moore was also required to give an opinion on whether the MRSA infection was hospital-acquired.

Counsel for the plaintiff did not elaborate upon this further at hearing, albeit that it was touched upon by counsel for the defendant, and I note in any event that Mr Moore did not address this issue in his report.

64. Separately, looking to the WOP correspondence as referred to at §27 above (much of which relates to the quantification of special damages), it appears that none of this correspondence was initiated by the plaintiff’s solicitor and it is clear that the defendants showed exceptional patience and forbearance prior to bringing the present application, with many items of correspondence apparently going unanswered by the plaintiff’s solicitor without further prompting by the defendants’ solicitor.

Fifth period of delay – the last communication to the plaintiff’s solicitor – 2 years, 7 months

65. Had this period of delay not come against a backdrop of significant prior delay, I may have been in a position to adopt a more lenient view but the explanation for the delay – that arising from administrative errors the WOP letter from the defendants dated 07 October 2021 was not assigned “to this case” correctly on the solicitor case management system – is without detail and it simply cannot be ignored in the context of the overall delay. The explanation given is unclear as to whether the letter was simply unassigned or assigned to a different case and, if so, there are no details provided as to whom and/or to which file the letter was assigned and/or why the individual with charge of that file did not bring the letter to the plaintiff’s solicitor’s attention.

Cumulative period of complete inactivity for more than five years

66. Therefore, from the plaintiff’s perspective there has been a “cumulative period of complete inactivity for more than five years” and it follows that an order should be made striking out the plaintiff’s claim unless I am satisfied that “there is a pressing exigency of justice” which would permit the claim to remain in being. As set out by O’Donnell CJ at §26 of Kirwan, such exigencies encompass exceptional circumstances, and it was of course open to the plaintiff in the present application to seek to persuade me that his claim should be permitted to proceed.

67. The arguments put forward by counsel on behalf of the plaintiff included excusability, prejudice, conduct, acquiescence, and the fact that the plaintiff’s claim would be determined on documentary evidence and expert opinion as opposed to witness testimony. I have already dealt with excusability and, as regards the second, fourth and fifth periods of delay, I am of the view that such delay is not excusable for the reasons as set out above.

Prejudice

68. Looking then to prejudice, and of course the plaintiff will be prejudiced if his claim is dismissed but as against that, there is a presumed prejudice to the defendants by reason of the delay. Whilst accepting the plaintiff’s argument that his claim will be determined on documentary evidence and expert opinion as opposed to witness testimony (and therefore the prejudice to the defendants is perhaps not as great as would otherwise be the case), in my view this is not sufficient to overcome the extent of the delay. Counsel for the plaintiff submitted at hearing (which took place before the decision in Kirwan) that the defendants could not point to any specific prejudice and that, in effect, both sides were relying on the same evidence, being the documentary evidence that existed in relation to the practice and procedures that were in place at the relevant time.

69. As regards witness testimony, counsel for the defendants noted that criticisms were made of the ICC by the plaintiff and he submitted that the decisions taken by the ICC involved the decision-making process of a number of clinicians and that in order to evaluate that ICC decision-making, the decision-making of the clinicians at the relevant time would be put under the spotlight. Whilst this issue does not perhaps fall to be decided by me, I cannot help but note in passing that the decision of a committee is just that:- it is a decision of a committee – with decisions recorded by way of committee meeting minutes – rather than the individuals comprising that committee and, to that extent, I do not accept the defendants’ argument that witness testimony (other than expert witness testimony) would be crucial at substantive hearing. The recorded minutes of a committee such as the ICC, being authentic documents reflecting the decisions of that committee, stand or fall on their own and should not require clarification, explanation or otherwise from individual committee members.

70. However, and whilst acknowledging that the parties’ oral submissions were not based upon the decision in Kirwan for the reasons outlined above, after four years of total inactivity – as enunciated in Kirwan – it is not necessary for a defendant to point to any presence of prejudice since the passage of time is, in and of itself, enough to justify dismissal and it seems to me that this is a hurdle that the plaintiff cannot overcome in the present application.

71. Thus, pre-Kirwan cases such as Padden v. McDarby & ors [2024] IECA 207 (upon which the plaintiff relied to argue that a defendant could not assert prejudice relating to availability of witnesses where it had made no effort to investigate claim, relying on the dicta of Noonan J at §24 of that judgment that “if the prejudice of which the defendants complain is of their own making, they can hardly be heard to rely upon it irrespective of what delay has occurred”) and Walsh v. Mater Misericordiae University Hospital & anor [2023] IECA 276 (upon which the plaintiff relied to argue that a case in which liability will turn almost exclusively on notes and records may not cause prejudice to a defendant) bear little, if any, relevance to an application such as the present one, unless of course the exigencies of justice demand it.

72. Separately, the plaintiff has not, it seems to me, alleged any specific prejudice on his part – over and above that his claim will be dismissed and his only other recourse will be by way of professional negligence claim against his solicitor should I accede to the defendants’ application – and if this form of prejudice were to be taken into account by me, then a significant number of claims that might otherwise fall to be dismissed under the Kirwan principles would be allowed to proceed. Whilst acknowledging that a professional negligence claim against a litigant’s solicitor might not be straightforward, as alluded to by counsel for the plaintiff at hearing, to allow all claims – in which a professional negligence against a solicitor might be a secondary option – to proceed rather than being struck out by reason of delay cannot be what the Supreme Court in Kirwan intended and is not “a pressing exigency of justice” which would permit the claim to remain in being.

Acquiescence

73. Neither am I satisfied that the defendants’ conduct amounts to acquiescence. The concept of acquiescence is addressed across the three majority judgments in Kirwan. Murray J is emphatic in that there is no mutuality (at §51, referring to the

decision of Butler J in Campbell v. Geraghty and ors [2022] IEHC 241), O’Donnell CJ notes that there may be cases where the level of acquiescence amounts to positive encouragement (at §15) and Hogan J notes that there may be situations where the defendants have actively lulled the plaintiff into a false sense of security (at §190). Thus, the test may be viewed through the lens of whether the defendants’ conduct actively lulled the plaintiff into a false sense of security, such as to amount to positive encouragement to the plaintiff to refrain from prosecuting a claim.

74. In arguing acquiescence, counsel for the plaintiff relied upon the contents of one of the WOP letters from the plaintiff’s solicitor dated 13 August 2020 which made reference to the fact that the parties’ solicitors had “discussed very loosely and without any commitment, the possibility of [the defendants’] instructing principal’s [sic] giving consideration to sharing the costs of this expert reporting.” However, this is only one of a series of WOP letters and this ‘loose discussion’ from the defendants’ perspective does not reach the relatively high bar of actively lulling the plaintiff into a false sense of security, such as to positively encourage the plaintiff to refrain from prosecuting his claim. There was no suggestion in the WOP correspondence that the plaintiff would not prosecute his claim and indeed it is clear from much of the WOP that the defendants’ solicitor was consistently looking for a copy of the plaintiff’s expert report and/or details as regards the plaintiff’s special damages, and the defendants’ solicitor also adverted on more than one occasion (on the 22 November 2017 and 11 March 2019) to instructions to issue motions, given the delay in providing GP records and details of special damages.

The reference to issuing motions is the antithesis of encouraging the plaintiff to refrain from prosecuting his claim.

Exigency of justice

75. It is clear from the decision of O’Donnell CJ in Kirwan that the outer parameters of what might constitute an exigency of justice are not limitless and certainly, as regards the examples noted by O’Donnell CJ at §26(iv) of his judgment (as set out at §31 above), the plaintiff in the present case does not come within the suggested “exceptional situations”. That is not to say that the exceptional situations as noted

by O’Donnell CJ are finite, but the plaintiff has not persuaded me – for the reasons as set out above – that his situation is exceptional.

76. This is all the more so when one looks to §27 of the decision of O’Donnell CJ in Kirwan (as set out at §33 above) and it cannot be suggested that the delay in this case is borderline or marginal, such that I might be afforded an opportunity to take a different view of the plaintiff’s delay. Whilst mindful of the comments of O’Donnell CJ at §29 of his judgment that “it is nevertheless important that courts retain a degree of flexibility and should remain astute to ensure that justice in its broadest sense is done” in my view this means that I must do justice to both parties, and in the circumstances of this case – and for the reasons as expressed above – justice demands that the plaintiff’s claim be dismissed.

77. In coming to this conclusion, I am very mindful of the dicta of Hogan J in Kirwan where he stated at §200 of his judgment:

“….. contumelious delay should not readily be indulged. Delay of this kind has a corrosive effect on the legal system because it obliges the courts to expend precious resources in dealing with stale claims. Judicial acceptance of such delays further helps to create an atmosphere of tolerance and acceptance in respect of delay throughout the legal and this in turn encourages many litigants and their advisers to believe that their own tardy and inefficient conduct will be excused and indulged. None of this reflects well on the efficiency of the judicial process and it ultimately helps to undermine confidence in the system of administration of justice.”

and it seems to me that, unfortunate as it may be from the plaintiff’s perspective, I simply cannot allow his claim to continue.

Conclusion

78. Thus, and for the reasons as set out above, the defendants have persuaded me that the plaintiff’s claim should be dismissed.

Costs

79. In circumstances where the defendants have been successful in their application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties in the context of this application, the court is inclined to award the defendants their costs, which represents the ‘default position’ under RSC O.99, rr.2 and 3. However, it is open to the parties to contend for the making of a different form of costs order and I will hear the parties in relation to the precise form of order to be made. I propose listing this matter, in person, for 10:45 on 27 January 2026 for such purpose.