Supreme Court allows appeal against High Court dismissal of proceedings due to disproportionate sanction for procedural failure.

THE SUPREME COURT

[Appeal No: 154/2011]

Clarke J.

MacMenamin J.

Charleton J.

Between/

Kevin Tracey and Karen Tracey

Plaintiffs/Appellants

and

Michael McDowell, The Minister for Justice Equality & Law Reform, Ireland, The Attorney General, The Commissioner of An

Garda Síochána, the Director of Public Prosecutions, the Chief Executive of The Courts Service, Bernard Neary, Edward

Finucane, John Keenan, Patrick Flynn, John Costello, Dermot O’Connell and David O’Brien

Defendants/Respondents

Judgment of Mr. Justice Clarke delivered the 26th July, 2016.

1. Introduction

1.1 This appeal relates to six High Court cases of which the proceedings set out in the title to this judgment is one. I will refer to that

case as the principal proceedings. Each of the relevant proceedings involved the first above named plaintiff/appellant (“Mr. Tracey”)

as plaintiff. In certain proceedings the second above named plaintiff/appellant (“Ms. Tracey”) was also a plaintiff. I will refer to Mr.

Tracey and Ms. Tracey collectively as the Traceys. Unless the context otherwise requires I will refer to the plaintiffs in the relevant

proceedings as the Traceys even though Ms. Tracey was not a plaintiff in some of the proceedings concerned.

1.2 In circumstances which it will be necessary to address the relevant proceedings as against all or most of the defendants thereto

were dismissed by the High Court (Kearns P.) for delay on the basis of what might be described as a finding of significant procedural

failure on the part of the Traceys. A single notice of appeal was filed bearing the title of the principal proceedings but which, from its

terms, was clearly intended to apply equally to each of the other High Court proceedings to the extent that they were dismissed.

Likewise, the order of Kearns P., while using the same title, clearly makes reference to the dismissal of the various other proceedings

either against all of the defendants involved in those proceedings or, in some cases, against specified defendants. With the exception

of the seventh and eighth named defendants/respondents in the principal proceedings (who can conveniently be referred to as “the

Courts Service”) each of the defendants/respondents in whose favour orders dismissing the relevant proceedings were made can

conveniently be referred to as “the State Respondents”.

1.3 While, for those reasons, the principal focus of this appeal is on the principal proceedings as the proceedings named in the title to

the notice of appeal, it was not argued by counsel on behalf of the State Respondents that any materially different considerations

applied in relation to the issues which arose in respect of the appeal insofar as it related to the various other proceedings. While I will,

therefore, describe the principal proceedings in a little more detail, this judgment applies equally to each of the cases concerned and

it follows that the order which I would propose likewise applies equally to the High Court order insofar as it relates to each of the

relevant cases.

1.4 In simple terms the core issue which this Court has to decide is whether the dismissal of each of the relevant proceedings was

within the range of proportionate responses to the circumstances which had arisen although it should be noted that, in addition, an

issue concerning an allegation of bias against the trial judge is also raised.

1.5 In order to understand the precise issues which arise it is necessary to set out a brief procedural history.

2. Procedural History

2.1 The Traceys commenced the principal proceedings by issuing a plenary summons on the 20th December 2006 but it would appear

that the proceedings were not served until April of the following year. In substance there are now two sets of

defendants/respondents to the principal proceedings. The Courts Service who are represented by A. & L. Goodbody, Solicitors and the

relevant State Respondents who are represented by the Chief State Solicitor’s Office (“CSSO”).

2.2 The principal proceedings progressed in an orderly fashion with the delivery of a statement of claim on the 31st May 2007, the

raising of particulars and replies thereto and the filing of defences such that a notice of trial was filed by the Traceys on the 27th

August 2008. The fact that the principal proceedings had, apparently, reached that stage some 20 months after their commencement

suggests that the Traceys had progressed the case with reasonable expedition up to that point. In fairness it should be recorded that

no suggestion has ever been made to the effect that any of the relevant proceedings were not initially progressed in an appropriate

way.

2.3 Thereafter there were further procedural issues deriving not least from discovery which resulted in voluntary discovery being in

part agreed on behalf of the State Respondents by letter of the 21st September 2009. In that regard it should be noted that the

response on behalf of the State Respondents of that date related to a request seeking voluntary discovery which had been made by

the Traceys on the 6th January of that year. In fairness the CSSO apologised for that delay while replying. It does, therefore, bear

recording that responsibility for some of the time which passed around that period cannot be laid at the door of the Traceys.

Thereafter there were further discovery issues resulting in a motion before the Master of the High Court seeking discovery against the

Courts Service which was returnable on the 14th January 2010 and a separate motion seeking further and better discovery as against

the State Respondents which was returnable for the 5th October of that same year.

2.4 However, by the early part of 2010 there were a total of seven sets of proceedings in being in which Mr. Tracey, whether alone

or in one guise or another, was the principal moving party and elements of the State were the sole or, in some cases the main,

defendants. In that context, in early 2010, the State Respondents brought a motion seeking case management of all of those

proceedings together. The principal proceedings was one of the cases brought under case management on that basis. One of the

cases in question was struck out by order of Charleton J. on the 29th June 2010. However the remainder of the cases continued to

be the subject of case management through the adjournment from to time of the case management application.

2.5 For clarity it should be emphasised that the other appeals which are accepted as being governed by this judgment relate to those

cases (other than the one struck out by order of Charleton J. on the 29th June 2010) which were brought under that single case

management process and were, therefore, the subject of the same directions and orders.

2.6 The precise claims raised in the various proceedings are not directly relevant to the precise issue which currently requires to be

decided by this Court. However, for clarity it is appropriate to specify what the principal proceedings are about, at least in the most

general of terms. The core of the Traceys’ allegation which is the subject of these principal proceedings can, perhaps, be best

gleaned from para. 15 of the statement of claim filed which is in the following terms:-

“In the period on or about 14th August 1999 until on or about the 14th March 2002 the plaintiffs were subjected to a

particular conspiracy and collusion of malicious prosecution and abuse of the legal process including false summonses,

false prosecutions, false fines, false endorsement of licence, false prison sentence and assaults by members of the

gardaí in executing false warrant of arrest for false imprisonment at the plaintiffs constitutional inviolable home and

incarceration at Mountjoy Prison.”

2.7 The other proceedings which, for the reasons already identified, are the subject of this appeal and are governed by the decision

in respect of this principal appeal, also involved allegations principally against various State entities all of which allegations have at

least the same very broad background.

2.8 In any event the application for case management was initially returnable for the 15th March 2010 before Kearns P. It was

subsequently adjourned from time to time to, respectively, the 26th July, 5th October and 14th December of that year and finally to

the 4th March 2011.

2.9 In between the last two of those dates the State Respondents and other relevant State parties brought applications seeking to

have each of the relevant proceedings struck out for want of prosecution. Those applications were initially returnable on the 18th

February 2011 but, on the basis that the case management then stood adjourned to the 4th March 2011, were adjourned to that

date so that they could be heard in conjunction with the case management.

2.10 In parallel a separate motion to strike out these principal proceedings for want of prosecution was brought on behalf of the

Courts Service in February 2011 with that motion also being adjourned from its original return date until the 4th March so that it could

be heard in conjunction with the case management and the similar motion which had been brought by the State Respondents.

2.11 It should be recorded that, save for one point to which it will be necessary to return, the case made on behalf of the Courts

Service in support of their motion to dismiss was the same as that made on behalf of the State Respondents. That continued to be

the case at the appeal before this Court. The additional matter on which the Courts Service placed reliance was a contention of

specific prejudice. In that context it is said that, by reason of the lengthy period of time which had elapsed since the events giving

rise to the allegations for which the Courts Service was said to be answerable, the personnel concerned had little or no recollection of

the relevant events and that there is, it was said, little or no material contemporary documentation from which those persons might

be able to refresh their memory. In that context attention was drawn to the fact that five and a half years had elapsed from the

principal incident in respect of which the claim against the Courts Service was said to arise to the time when the proceedings were

commenced. Reliance was placed on the well established principle that a party who waits a long time before commencing proceedings

has an added obligation of expedition to ensure that the proceedings thereafter are progressed in a timely fashion.

2.12 However, it does have to be said that no real complaint was made as to the manner in which any of the relevant proceedings

(whether as against the State Respondents, the Courts Service or other relevant State parties to any of the proceedings concerned)

were progressed up to the summer of 2010. As already noted the litigation was under case management by that stage.

2.13 What transpired in the court hearings subsequent to the vacation of 2010 was described by Kearns P. in the judgment which he

delivered on the 4th March 2011 in the following terms:-

“At the start of the Michaelmas term 2010 it was intimated to me by a person attending court on Mr. Tracey’s behalf

that he was ill and had been hospitalised, first in Connolly Hospital and alter in Beaumont Hospital up to the time of his

discharge on 20th August in 2010. The only evidence adduced to support ongoing requests for an adjournment was a

four line medical report from a general practitioner dated 2nd September 2010.

At the time, I put Mr. Tracey’s litigation back for a period of time to enable him obtain a specialist opinion, and in doing

so made it absolutely clear to his representative in court that, having regard to the long interval of time since the

matters complained of occurred, the Court would require such detailed expert evidence, failing which the proceedings

which were to be again before the Court in early November would be dismissed. I impressed this fact upon Mr. Tracey’s

representatives in the strongest possible terms.

Due to the failure to present such evidence, certain proceedings in which Mr. Tracey was involved were in fact

dismissed in November and are the subject matter of a separate appeal to the Supreme Court.

In the instant case Mr. Tracey was represented by a different McKenzie friend when the matter came before me on 4th

March. On that date various defendants had sought to dismiss the plaintiff’s claim for want of prosecution.

On 4th March, Mr. Tracey’s representative, Mr. Justin Morahan, produced letters which altogether failed to explain why

the plaintiff was unable to attend to his legal business or to even swear an affidavit in response to those relied upon by

the various defendants.”

2.14 In those circumstances the matter went ahead on the 4th March and the orders now sought to be appealed were made. It is

next necessary to turn to the reasons given by the trial judge for making the orders sought.

3. The Trial Judge’s Reasoning

3.1 The trial judge analysed the medical reports which had been furnished since the previous occasion when the matter was before

the Court. A letter from a registrar to Mr. Tracey’s consultant doctor was considered to have done no more than specified certain

symptoms without addressing the real question on which the Court required assistance. Likewise the updated report from Mr. Tracey’s

General Practitioner was said, amongst other things, not to have addressed the likely duration of Mr. Tracey’s condition and a

prognosis for the future. In those circumstances the trial judge stated his conclusions in the following terms:-

“I heard lengthy submissions from Mr. Tracey’s representatives but was quite satisfied that no credible or reliable

evidence existed which would persuade me to adopt a different course than the course intimated as far back as the

start of Michaelmas term 2011, namely, that Mr. Tracey’s multiple proceedings would stand dismissed in the absence of

clear and cogent evidence from the specialist of the sort referred to above.”

3.2 Before going on to deal with the issues which arose on this appeal it is necessary, for the record, to deal with a recusal

application which was made by Mr. Tracey and dealt with on the day of the oral hearing.

4. The Recusal Application

4.1 Mr. Tracey presented the case on behalf of the Traceys in person. It should be recorded that, at the beginning of the oral

hearing, Mr. Tracey suggested that both MacMenamin and Charleton JJ. should recuse themselves by virtue of what was argued to be

a reasonable apprehension of bias against Mr. Tracey, said to be derived from the judgments delivered in a previous case. That case

(Tracey t/a Engineering Design & Management v. Burton & ors [2016] IESC 16) involved an appeal against the decision of the High

Court to vacate a notice of trial before judge and jury in the proceedings concerned which decision had the effect of requiring that

the case should be tried without a jury. The judgment of this Court was delivered by MacMenamin J. Charleton J. and Denham C.J.

agreed.

4.2 The suggestion made in the recusal application was that the judgment displayed bias against Mr. Tracey by virtue of the fact

that, it was said, only selective quotations from his statement of claim were included.

4.3 It does have to be recorded that there is an increasing tendency of litigants to allege bias arising largely out of the fact that a

judge or judges had previously heard a case involving the litigant concerned and found in favour of the litigant’s opponent.

Sometimes, although in fairness to Mr. Tracey this is not such a case, the argument is little more than a rehash of the original case

coupled with the contention that the judge must have been biased to have found against the relevant party. Such an application for

recusal is unstateable.

4.4 However, as already noted, Mr. Tracey put his case somewhat differently by suggesting that the way in which the Court went

about giving judgment demonstrated bias. While not ruling out the possibility that there might be a case where a contention of a

reasonable apprehension of bias might legitimately be grounded on the text of a judgment, it does need to be emphasised that it

would require an argument which went well beyond a simple contention that the previous judgment was wrong, to sustain a legitimate

application for recusal in such circumstances. It is in that context that it is necessary to say just a little about the judgment on Mr.

Tracey’s previous appeal. As already noted the issue was as to whether Mr. Tracey was entitled to a jury trial. That in turn depended

on whether the proceedings could properly be described as defamation proceedings. The key passage from the judgment of

MacMenamin J. appears at para. 38 where the following is stated:-

“The true question which arises in this appeal is what is the nature of these proceedings, as actually pleaded? I am

unable to accept that these proceedings can, properly, be characterised as “defamation proceedings”. There is no such

plea. Defamation requires explicit and clear pleading. It cannot be implied or inferred. The conduct referred to is entirely

peripheral to the main issue in the appellant’s case, which is an alleged breach of a contract for services.

(emphasis in original)

4.5 It is clear, therefore, that the basis of the Court’s decision was simply to the effect that it is not permissible to imply or infer that

a claim in defamation is being made in circumstances where the pleadings do not specify, in express terms, that the claim being

pursued is one in defamation. It was clear that no claim in defamation was made in those clear terms and, for that reason, the claim,

however described, could not be regarded as raising a defamation claim by implication or inference.

4.6 It follows that the description of the statement of claim which is found in the judgment was included merely by way of general

background and did not form part of the Court’s reasoning. Whatever may or may not have been said in the statement of claim it was

clear that the claim put forward did not expressly make an allegation of defamation. It is equally clear from the judgment that, in the

absence of such an express claim in defamation, it did not really matter what else was said in the statement of claim. The other

content of the statement of claim could only be held to turn the case into a defamation case if it were possible to imply defamation

into a claim which did not expressly allege defamation. This Court held that, as a matter of law, such an implied claim in defamation

was not possible. In those circumstances, and in the absence of an appropriate express claim, the remainder of the statement of

claim was irrelevant to the question of whether the case could properly be regarded as a defamation case.

4.7 I have engaged in that somewhat detailed analysis of the judgment for the purposes of demonstrating that the allegation of bias

was entirely misconceived. It failed to address the central finding of the Court which was to the effect that, in the absence of a clear

statement that a claim in defamation was being made, a case cannot be treated as a defamation case by implication. Even if,

therefore, it might be open to debate as to whether there were other portions of the statement of claim which could have been

quoted (and I am by no means suggesting that it is) same could have had no effect on the result of the appeal because other parts

of the statement of claim could only have gone to supporting a contention that a claim for defamation was implied. However, as

already noted, the Court held that, as a matter of law, such an implied claim of defamation was not permissible.

4.8 For those reasons I strongly supported the view of the Court that the claim of an appearance of bias and thus the suggestion of

recusal was entirely misconceived and should be rejected.

4.9 As the backdrop to the principal substantive issue which arises on this appeal concerns both procedural failure and medical

certification it seems to me to be appropriate to express some general views on those questions before going on to apply appropriate

principles to the facts of this case.

5. Procedural Failure

5.1 The jurisprudence concerning the dismissal of proceedings for want of prosecution is now well settled. It does not seem to me to

be necessary to add to that jurisprudence for the purposes of this judgment. However, it is, in my view, important to identify a

distinction which can properly be made between a general failure of a party to progress their proceedings in a timely manner, on the

one hand, and the consequences which it may be appropriate to apply to a specific failure on the part of a litigant to comply with a

direction or order of the Court, on the other hand. The former question is the subject of much of the jurisprudence of the courts since

at least Lismore Homes Limited v. Bank of Ireland Finance Limited [1999] 1. I.R. 501. However, in my view, somewhat different

considerations apply where a court is concerned with a specific failure on the part of a litigant to take a step which has been

expressly directed by the Court, most particularly where the failure concerned is either itself significant and highly material to the

litigation or, indeed, where the relevant failure or failures are persistent.

5.2 It must, of course, be recognised that the response of a court to any procedural failure must be proportionate. Dismissing a claim

or, indeed, striking out a defence or otherwise taking significant action which would diminish or extinguish the entitlement of a party

to put its case forward at a full trial is a step which should not lightly be taken and should only be taken in response to procedural

failure where, in all the circumstances, that failure is sufficiently serious or persistent to justify the action concerned.

5.3 But it does have to be recognised that there will be cases where it will be proportionate to take very serious action, such as

striking out a claim, if the relevant procedural failure is sufficiently serious or persistent. It is also important to understand the reason

why that is so.

5.4 The common law system of litigation is, to quite a significant extent, driven by the parties. The parties file the claims and

pleadings. Procedures are invoked on the application of the parties. While that process may be enhanced by case management

nonetheless the primary moving role remains that of the parties.

5.5 But it is also clear from the jurisprudence of the European Court of Human Rights that the fact that the primary drivers of litigation

in the common law system are the parties themselves does not absolve the State from the obligation of ensuring that litigation is

conducted in a timely fashion. Given that two of the earliest subscribers to the European Convention on Human Rights were common

law countries it could not be thought that the party led common law system of litigation is, in itself, contrary to the Convention. It

must be assumed that there is, at least at the level of broad principle, parity of esteem between the civil and common law systems of

litigation. But that is not to say that aspects of the litigation system in any subscribing state may not come under scrutiny for

compliance with the Convention either because of general and systemic failures or failures which arise in one or a small number of

cases.

5.6 It must also be recalled that the obligation under the Convention lies on the State as a whole including all of its organs of

governance such as the courts. A failure to put in place a system which permits for the timely resolution of proceedings in a

convention compliant manner may, for example, therefore, lie on the State for failing to adequately resource the courts’ system, on

the procedures which may be followed generally if same do not facilitate the timely resolution of proceedings or on individual failure

(including a failure by judges). In relation to the issue which arises on this appeal it is important, therefore, to emphasise that it is

necessary, in the context of a party led litigation system, that there be procedures available to ensure that proceedings progress in a

timely way and that parties who may wish to ensure that proceedings do progress without undue delay have available to them

procedural tools to ensure the orderly and timely progress of the litigation. In order to be convention compliant those tools must both

be available and have the capacity to work in practice. If there are no, or no sufficient, sanctions available to a court for failure to

comply with orders made or directions given which are designed to ensure the orderly and timely progress of litigation, then it might

well be determined that there were no, or no sufficient, procedural tools available which could in practise ensure the timely completion

of litigation.

5.7 It, therefore, follows that there must be significant sanctions available to meet significant material or persistent procedural failure

and that, in an appropriate case where it is a proportionate response, those sanctions can include the dismissal of a plaintiff’s claim.

In those circumstances it seems to me that somewhat different considerations apply when a court is faced with a failure to comply

with a specific procedural direction as compared with the general considerations which a court has to take into account when

assessing whether a plaintiff has progressed their case in a sufficiently timely way to avoid a finding of inordinate and inexcusable

delay. Where there is a specific failure to comply with a court direction, the Court must assess how serious and significant the failure

is, whether it is persistent and whether there is any legitimate explanation for the failure concerned. In the light of those and any

other relevant factors, the Court must then determine what sanction or consequence is proportionate.

5.8 But it follows that there may well be cases where, while the overall delay would not warrant the dismissal of proceedings for

inordinate and inexcusable delay in accordance with the established jurisprudence, nonetheless a significant or persistent failure to

comply with express court orders or directions might justify dismissal as a proportionate consequence of major procedural non

compliance. In that context it is particularly important to note that modern case management can only work if the case management

directions given by a case management judge are complied with in a manner which is both timely and conforms substantially to the

orders or directions made. Case management as a whole would be redundant or at least significantly diminished if parties were able to

ignore the directions of the Court without significant sanction. As already noted this case, along with others, was under case

management at the time when the orders under appeal were made. While it must, of course, remain the case that the response of a

judge to a significant or persistent procedural failure in the course of case management must be proportionate in all the

circumstances of the case, nonetheless the fact that a case is under case management and the need to ensure that, at least at a

broad and general level, case management is effective, is a factor which can be taken into account in assessing the overall

seriousness of the failure to comply with any directions made during the case management process.

5.9 As an important aspect of that assessment involves a consideration of any explanation put forward and as the explanation in this

case involved a medical condition, it seems to me also to be important to say something about medical reports which are frequently

tendered in support of applications for adjournments and the like.

6. Medical Reports

6.1 I should start by stating that the courts have always acknowledged that it is much better that doctors spend their time looking

after the health of their patients rather than attending court. Courts will always be happy to see if the requirement for the

attendance of a doctor can be avoided. Even if attendance is unavoidable, courts have traditionally facilitated doctors in the timing

and sequencing of the giving of their evidence so as to minimise interference with the important work of doctors in treating patients.

6.2 It also needs to be noted that the engagement of doctors with the courts can arise in a variety of ways. Doctors may be required

to give evidence at the trial of a whole range of issues including, most obviously, personal injury actions but also in other cases such

as those involving clinical negligence or the capacity of individuals. However, the issues which arise on this appeal are not of that

type. Rather, this appeal is concerned with another frequent source of engagement between doctors and the courts whereby doctors

are asked by parties to produce a report for the court with a view to the use of that report in an application for an adjournment, the

excusal of a witness, or other like steps. It is, of course, the case that a court may be required to adjust what might otherwise be

the normal course of proceedings because of the medical condition of someone, whether party, witness, or otherwise, who has an

involvement with the case.

6.3 But it is important to emphasise that the role of the court in such circumstances differs significantly from the role of a doctor. The

doctor’s only concern, quite legitimately, is with the health of their patient. The advice of a doctor in respect of a specific patient

will, therefore, be informed by that doctor’s professional view of the course of action which is best designed to meet the health

requirements of the patient concerned.

6.4 But it is most important that all concerned, be they parties or doctors, realise that the role of the court is different. The court is

required to take into account the rights and interests of all parties. If a case has to be adjourned or a witness not called then that

has the potential to affect the rights of other parties beyond the individual on whose health status a doctor may be required to

report. A court is required to balance all of the rights involved. However, in so doing a court requires more information than is

sometimes proffered to enable it to carry out that task properly. Two brief examples will suffice. Many others could be given.

6.5 The first concerns the likely length of any indisposition on the part of a relevant individual. The weight to be attached, in an

overall balancing of the interests of all parties concerned, to a requirement to put proceedings on hold for (say) 12 or 18 months may

be a lot different than the weight to be attached to a suggestion that the proceedings should be adjourned for a short period of time

in the light of a medical problem which was likely to resolve without undue delay. Of course there is no magic formula about the length

of time which may be reasonable. In a case which is very urgent any adjournment may be disproportionate notwithstanding the

medical condition involved. In other cases a relatively lengthy adjournment, while not insignificant, may loom less large. But it is clear

that it is important that there be some assessment of the timeframe within which it may be realistic to consider that there may be a

resolution of the problem which is said to justify a postponement or delay in the case. There may well be cases where that timeframe

may turn out to be decisive. Taking all factors into account a delay of 12 months might not be justified where a delay of three

months might. It is, of course, the case that the courts recognise that doctors cannot give an absolute guarantee as to the

timeframe within which any medical problem may sufficiently resolve. But a realistic estimate of when the individual concerned might

be considered to be in a position to play a full role in the proceedings (in the context of whatever type of involvement is required of

them) is an important part of the equation.

6.6 Second it must also be acknowledged that there will be cases where it will be necessary to consider whether there are any

measures which the court can adopt which meet both the reasonable health requirements of the individual under consideration but

also the reasonable requirements of all parties for a timely resolution of the litigation. A witness who may not be able to come to

court can have their evidence taken on commission. A party who might not yet be in a position to attend and give evidence at a trial

might nonetheless be in a position to give instructions to their lawyers to allow for the orderly progress of the proceedings up to the

point of trial. Part of the assessment which the court will have to make is as to whether there are any measures which can be

adopted which will minimise interference with the orderly progress of the case. Again there may be cases where that very fact will be

decisive. In an urgent case it might be inappropriate to permit a 9 month adjournment to facilitate the attendance of an important

witness but it might be appropriate to allow a short adjournment to allow the evidence of that witness to be taken on commission.

Some procedural leeway may be allowed in getting a case on for trial because of a medical condition from which a party suffered but

there might be a great deal of difference between a case where it was said that there could be no progress at all until an unspecified

time in the future when the patient might recover and one where reasonable measures could be put in place to allow the court

process to move along so that it would be ready to go to trial as soon as the party concerned had recovered.

6.7 All of this analysis is designed to show that a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very

little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person

concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for

recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might

reasonably influence the court’s judgement.

6.8 Of course, it must be noted that a doctor cannot be expected to give the court the necessary information unless the doctor is

appraised by those seeking the medical report of the precise purpose for which the report is required. If the doctor is simply asked for

a medical certificate it will hardly be surprising that the document produced is correspondingly bland. It must, therefore, be

emphasised that there is an obligation on those seeking medical reports to inform the doctor concerned of the precise purpose for

which the report is required and thus enable the doctor to give the court the information necessary to allow the court to form its

judgement. If the doctor is not given sufficient information then the doctor can hardly be criticised if the response is insufficiently

focused. However, it should also be said that, where a doctor is given sufficient detail to know precisely what matters the court will

need to address, it is incumbent on the doctor concerned to engage with the issues raised and to deal with them fully and

appropriately.

6.9 In all cases a court will, for obvious reasons, be most reluctant to require the attendance of a doctor. An insufficient report,

which follows on from the doctor not being given sufficient information to know what the report should contain, will rarely lead to it

being justified to require the attendance of the doctor. On the other hand a doctor who is given full instructions but who does not

engage with those instructions in a sufficient way to provide the court with enough information to enable an appropriate assessment

to be made, may ultimately be required to attend court to fill in the gaps. To do otherwise would be to penalise a party, who had

made reasonable efforts properly to instruct a doctor as to what was required, because of a failure on the doctor’s part.

6.10 Having made those general observations it is necessary to turn to the implications for this appeal.

7. The Circumstances of this Case

7.1 It is important to start by emphasising two facts. First, as already noted, there is no suggestion that the Traceys were not

reasonably assiduous in progressing all of the relevant proceedings up to the time when Mr. Tracey became ill. Second, it is clear that

Mr. Tracey did have a significant illness.

7.2 That leads to a consideration of the medical reports which were actually furnished on foot of the previous directions of the Court.

In the light of the comments which I have made concerning medical reports of this type generally it does have to be said that the

medical reports supplied in this case were significantly lacking. While there was talk of a review in six months time, there was no

suggestion of a prognosis and no indication as to whether it was likely or unlikely that, on such a six month review, Mr. Tracey might

be considered to be in a position to progress his proceedings. Furthermore, given that the court was concerned with case progression

and case management rather than, at least at that stage, a trial, the report was particularly general about whether Mr. Tracey could

take any steps at all in respect of the litigation. It does not necessarily follow from the fact that someone may have a medical

difficulty which prevents them dealing with important affairs that they might not, nonetheless, be in a position to file documents

which could be prepared at leisure, particularly if a reasonable timeframe were provided for such preparation. It is also necessary to

have regard to the fact that the trial judge had given specific directions concerning the requirement for suitable medical reports.

7.3 In the course of argument Mr. Tracey suggested that the trial judge, in effect, second-guessed his doctors. I do not consider

that to be a fair characterisation of what happened. The trial judge had required that there be a sufficient medical report produced to

enable him to assess whether, and if so for how long, the case progression might be put on hold. There can be little doubt but that

the reports supplied were inadequate to enable the court to carry out that task in a proper fashion. To reach that view was not to

second-guess the medical opinion. Rather it was to emphasise that the court had to take into account a range of factors and needed

a more detailed medical opinion to enable it to assess the weight to be attached to those factors in coming to an overall conclusion.

7.4 I am, therefore, satisfied that, in all the circumstances, the trial judge was entitled to conclude that there had been a failure on

the part of Mr. Tracey to comply with the previous directions of the court concerning the filing of an appropriate medical report. The

reports furnished fell short of that which was required.

7.5 But the question remains as to whether a dismissal of each of the relevant proceedings was a proportionate response, in all the

circumstances, to that failure. It must be recalled that medical reports were, in fact, furnished (indeed there were two) which did

advance matters somewhat beyond the position which had pertained on the previous occasion when the case was put back and

directions given. There is reference to a specific medical condition. There is at least a form of report from a consultant (or the

consultant’s registrar). While, for the reasons which I have sought to analyse, I am satisfied that the trial judge was more than

entitled to consider that the medical evidence was insufficiently detailed, nonetheless some additional medical evidence had been

placed before the Court.

7.6 In summary, therefore, it seems to me that the trial judge was entitled to conclude that there had been inordinate and

inexcusable delay, in the particular sense relevant to the facts of this appeal, by virtue of the persistent failure of the Traceys to

present adequate medical reports to the Court so as to enable the Court to make an appropriate decision as to whether, and if so for

how long, to put these proceedings on hold.

7.7 However, the question remains as to whether a dismissal of each of the relevant proceedings, rather than some lesser measure,

was within the range of proportionate responses which it was open to the Court to take in all the circumstances of the case. In all

such cases the Court is required to determine where the balance of justice lies. The factors which may be relevant to such a

consideration may vary from one type of case to another. Where, as here, the focus is not so much on delay per se but delay

occasioned by a persistent failure to comply with a specific direction of the Court, nonetheless, in assessing the balance of justice,

the Court must consider whether dismissal of the proceedings is a proportionate response.

7.8 In that regard it is also necessary to take into account the additional factor urged on behalf of the Courts Service concerning a

more specific element of prejudice arising from the lengthy period which has elapsed since the events which are the subject of the

principal proceedings insofar as they relate to the Courts Service.

7.9 Nonetheless, in my view, in the light of the fact that the Traceys had progressed the relevant proceedings in a timely fashion up

to that point and had at least provided some additional medical information, a dismissal of the proceedings was a disproportionate

sanction to impose for the undoubted procedural failure present.

7.10 If there had been no advance in the medical evidence tendered to the Court notwithstanding the directions in that regard given

by the trial judge, it might well have been the case that dismissal of the proceedings would have been within the range of

proportionate responses which were open to the trial judge such that it would not be appropriate for this Court to interfere with the

trial judge’s assessment. However, given that there was an advance in the medical evidence tendered and even though the medical

evidence thus tendered fell short of that which was reasonably required, it seems to me that, in all the circumstances, the extreme

step of dismissal of proceedings (rather than some lesser but significant sanction) was disproportionate.

7.11 It follows that, in my view, the trial judge was in error in dismissing the relevant proceedings and that this appeal must,

therefore, be allowed.

7.12 In those circumstances it is unnecessary to consider the other ground put forward on behalf of the Traceys being an allegation

of bias on the part of the trial judge. I would simply comment that the mere fact that some of the issues addressed by the trial judge

in an ex tempore judgment were expressed in a particular way would not, of itself, be sufficient evidence to indicate bias. The

description of Mr. Tracey as a “serial litigant”, while not perhaps an ideal way of putting it, was nonetheless relevant to the point that

Mr. Tracey’s experience of litigation allowed the Court to require a higher standard of compliance from him than might be the case in

respect of a litigant who had no litigation experience whatsoever.

8. Conclusions

8.1 For those reasons I would allow the appeal and discharge the orders of the trial judge dismissing each of the relevant

proceedings. Obviously this judgment has no application to the case against any of the defendants to the proceedings concerned in

whose favour no order of dismissal was granted by Kearns P. in March 2011.

8.2 I would, however, draw attention to the fact that, for a variety of reasons not all of which are the Traceys’ fault, each of the

relevant proceedings have now been in being for quite some time. It is, therefore, incumbent on all concerned to ensure that all of

the proceedings can come on for trial in the earliest possible timeframe.

8.3 In those circumstances I would propose that this Court give a direction that each of the matters be listed, at the earliest

convenient date available, before the President of the High Court or a judge nominated by the President for the purposes of further

case management. It should, in that context, be emphasised that, while the dismissal of the relevant proceedings may be seen as

disproportionate in all the circumstances then prevailing, nonetheless there was a material procedural failure on the part of the

Traceys. It follows that any further procedural failures, provided that they be of substance and could not be regarded as minor or

trivial, could legitimately lead a judge conducting further case management of these proceedings to the conclusion that such further

procedural failure, when taken in conjunction with the procedural failure which is the subject of this judgment, rendered the failures

concerned sufficiently persistent to warrant dismissal. It is of the utmost importance, in that context, that it be understood that any

directions given by a case management judge in the future should be strictly complied with.