High Court strikes out personal injury claim for want of prosecution due to inordinate and inexcusable delay.

[2026] IEHC 3 [2019 No. 2926 P]

THE HIGH COURT

Between:

JAMES GRAHAM

Plaintiff

– and –

CPL HEALTHCARE LTD AND TÚSLA, CHILD AND FAMILY AGENCY

Defendants

JUDGMENT of Mr Justice Max Barrett delivered on 13th January 2026.

Summary

In this judgment I explain why I will strike out Mr Graham’s claim for want of prosecution.

1. By notice of motion of 22nd May 2025, the defendants seek, inter alia, the following reliefs:

(1) an order striking out Mr Graham’s claim for want of prosecution against the defendants pursuant to O.122, r.11 RSC; (2) further and/or in the alternative, an order striking out Mr Graham’s claim for inordinate and/or inexcusable delay.

2. Mr Graham issued a personal injuries summons to claim damages arising out of an assault by a service user at a particular residential facility on 25th August 2016. Mr Graham alleges that this was caused by the breach of contract, negligence, breach of duty and breach of statutory duty of the defendants. Mr Graham allegedly suffered injuries to his face, fractures, ribs, throat, and post-traumatic anxiety.

3. The personal injuries summons was served on the defendants on 11th April 2019.

4. An appearance was entered by a solicitor for the defendants in May 2019.

5. A notice for particulars issued from the solicitor for the defendants on 4th June 2019.

c.28 months

6. Replies to particulars were provided to the solicitor for the defendants on 18th October 2021. Mr Graham’s solicitor maintains that:

(i) There was a delay in receiving information from Mr Graham which led to a delay in replying to the particulars sought. For my part, I do not see why this should count against the defendants.

(ii) This period coincided with the Covid pandemic and associated restrictions on movement. However, the pandemic did not end the possibility of online meetings or entering into correspondence or circulating documents by email.

(iii) Alleged mental distress caused by the alleged assault. Respectfully, I do not see that I can excuse delay which arises from the alleged assault that is the subject of the proceedings; that would seem at some level to involve my relying upon unproven facts as mitigating undoubted delay.

7. Rejoinders were raised on 21st October 2021.

c.6 months

8. Replies to the rejoinders were received on 6th April 2022. Mr Graham’s solicitor indicates in this regard that instructions had to be sought from Mr Graham which took time and involved three meetings and to obtain documentation from his General Practitioner (GP). Though this delay is at the shorter end of delay and to some extent explained, I do not see why this delay should count against the defendants.

c.15 months

9. A personal injuries Defence was delivered on 13th July 2023. No good excuse has been provided by the defendants for this delay. The solicitor for the defendants avers in this regard that “aspects of the draft Defence received from Counsel required further engagement with the client to verify specific pleas contained in the Defence which led to a time lag prior to the delivery of the same”. Throughout this time the solicitor for Mr Graham repeatedly sought the defence, by correspondence of 11th July 2022, 7th September 2022, 11th October 2022, and 6th July 2023. I see no good reason to present for a period of 15 months to elapse before the Defence was delivered.

10. Mr Graham raised a notice for particulars on the defendant’s Defence on 15th March 2024. No reply was received to this. Mr Graham’s solicitor avers as follows in this regard:

“It is undoubtedly the case that the Plaintiff raised a Notice for Particulars on the Defendant’s Defence on 15th March 2024. No response was received from the Defendant’s solicitors. Furthermore…(i) I also sent a detailed request for voluntary discovery on that date which similarly went without reply, (ii) I also wrote a letter on the same date seeking that the locus of the accident be preserved [an unusual request almost 8 years] and seeking inspection facilities, (iii) I sent a reminder letter to the Defendant’s solicitors on 14th October 2024 in respect of both the discovery request and the Notice for Particulars which also went without reply. I say that the Defendant seems to be making a virtue of its own failure to reply to the notice for particulars raised to, in part ground this application which is perverse and not in the interests of justice”.

11. As of 21st May 2025, Mr Graham had taken no further steps to progress his proceedings. By this time it had been 105 months since the alleged assault on Mr Graham.

12. The defendants claim that due to the passage of time they will be prejudiced and that memory issues will present as regards witnesses. They maintain that Mr Graham is guilty of inordinate and inexcusable delay in prosecuting his claim.

13. By contrast, the solicitor for Mr Graham has averred that he does not accept that the defendants are considerably prejudiced by the pleaded delay or at all, averring, inter alia, as follows:

“I say that as is clear the Defendant was in a position to file a Defence as recently as July 2023. [To this I would say that it is one thing to file a Defence, quite another to bring it home after the elapse of almost a decade and the natural loss of witness memory in that time.] …I say that I replied on 8th March 2024 [this was in an affidavit sworn on 8th October 2025] pointing out, inter alia, that the plaintiff had arranged to meet with me more than three weeks ago to review Senior Counsel’s advice on Proofs with a view to setting down the matter for trial at the earliest opportunity but missed that appointment because of a further incapacitating episode which he had suffered as a result of…[the] Defendant’s negligence and breach of duty”.

14. I emphasise that the prejudice here is not abstract. This claim concerns an alleged assault in a residential care setting, the dynamics of which turn on the recollection of staff and the precise interactions that occurred. Such matters are inherently memory-dependent and are not adequately recorded in contemporaneous documents. The passage of almost a decade means that the ability of witnesses to recall critical nuances will necessarily be compromised. Even though the defendants were able to furnish a Defence in 2023, the mere capacity to plead a case does not equate to the ability to meet it fairly at trial.

15. The principal authority now applicable to an application such as that now presenting is Kirwan v. Connors and Ors [2025] 5 JIC 3008; [2025] IESC 21. Bringing that authority to bear (and allowing for the fact that some time elapses before a response issues from one side in proceedings to another, i.e. the entire period of time that elapses is not entirely delay), I note the circa. 28-month period that elapsed between 4th June 2019 and 18th October 2021 (yielding a period of delay of in or about two years), followed by the circa. six-month elapse of time between 21st October 2021 and 6th April 2022.

16. No good reason has been offered for these elapses of time. It is true that the defendants thereafter delayed in furnishing a defence, though I do not see that Mr Graham ever considered seeking a judgment in default of defence – and these are his proceedings to move along. That said by October 2021, Mr Graham was guilty of two inordinate and inexcusable periods of delay, most particularly the period of delay within the period of 4th June 2019 to 18th October 2021. When I look at his conduct of his proceedings as a whole and particularly within that time it seems to me that the said periods of delay offer good reason for me to accede to the within application.

17. I accept that the defendants were responsible for an unjustified period of delay in delivering their Defence. However, applying Kirwan, the defendants’ delay arose only after the plaintiff had already accumulated two prolonged periods of inordinate and inexcusable delay, and it (the defendant delay) did not materially worsen the fairness-based prejudice that had already crystallised. The chronology demonstrates that Mr Graham’s delays were both temporally prior and qualitatively more significant, and that they constitute the predominant cause of the prejudice complained of.

18. For the avoidance of doubt, I have expressly considered the proportionality of the remedy sought. Striking out proceedings is a measure of last resort. I have weighed (i) the plaintiff’s right to litigate a serious personal injuries claim, (ii) the public interest in finality and the orderly conduct of litigation, (iii) the unavoidable deterioration in witness memory over almost a decade, and (iv) the fact that the central periods of delay, totalling over two years, were both inordinate and inexcusable and occurred before any meaningful procedural engagement by the defendants. No lesser case management measure could now restore the possibility of a fair trial. Accordingly, the strike-out sought is proportionate to the prejudice and delay established.

19. Nearly a decade has now elapsed since the events giving rise to these proceedings. The plaintiff was already responsible for two substantial periods of inordinate and inexcusable delay by October 2021, long before any later inactivity on the part of the defendants. In circumstances where the case is fact-dependent and will turn to a significant degree on witness recollection, I accept that the natural fading of memory over such a prolonged period presents a real risk of an unfair trial. While the defendants themselves contributed to delay, their actions do not outweigh the plaintiff’s earlier and far more consequential delays. Nor do they displace the fundamental reality that these are Mr Graham’s proceedings to advance, and that the most serious periods of delay occurred wholly on his side. Taking all matters together, I am satisfied that the cumulative effect of Mr Graham’s delays, the unavoidable deterioration of evidence, and the consequent prejudice to the defendants is such that the interests of justice require that the proceedings be brought now to an immediate end.