The Courts apply a high bar when considering whether to dismiss medical negligence proceedings due to delay. Indeed, in many cases they are allowed to proceed. While the Rooney decision in 2022 showed some departure from that tendency, there remains a high bar for defendants to get claims dismissed. We explore two recent cases highlighting that the courts will dismiss medical negligence claims where plaintiffs have delayed investigating and progressing their claims. The key consideration is where the balance of justice lies.
What is the Primor test?
A long and well-established body of case law exists for dismissing cases for delay in situations where litigants have been slow to progress their claims. This is known as “delay for want of prosecution”. The courts exercise their discretion to dismiss a claim based on the interests of justice. The test that has been applied by the courts since 1996 is the three-pronged test laid down by the Supreme Court in the Primor case. It is commonly referred to as the Primor test, which is as follows:
- Is the delay inordinate?
- Is the delay inexcusable i.e. unjustifiable?
If the answer to both questions (1) and (2) is yes, the court must then consider whether the balance of justice favours the dismissal of the proceedings.
Case 1
In the O’Neill case[1], Ms O’Neill suffered repeated infections from a staple inserted in her right leg during childhood surgery. Mr Justice Heslin applied the three limb Primor test:
Has there been inordinate delay? Yes
- Proceedings issued in December 2015, when Ms O’Neill was in her 30s, against a hospital regarding childhood surgery. She claimed she suffered pain and swelling since November 2011.
- Proceedings were not served for another 11 months. Ms O’Neill then delayed a further 16 months before correcting the defendant’s name.
- The information provided was very general. Ms O’Neill did not identify the date of the surgery, or the medical professionals involved. She did not specify what she claimed was negligent, or what should have been done differently.
- An expert report was never obtained, despite the hospital’s solicitors informing her that it was needed.
- The hospital’s solicitors had requested she discontinue her proceedings in March 2021, but her solicitor did not respond and took no further steps to progress the claim.
If so, is that delay excusable? No
Ms O’Neill tried unsuccessfully to explain the delay:
- She instructed new solicitors in March 2022 – the court said this did not explain the lengthy delays before that date.
- In October 2022 these new solicitors instructed an expert, however, this was nine months after they received the file. Then, when this expert failed to respond after two reminders, they did not try to find an alternative.
- Ms O’Neill suffered from spina bifida, but the court could not see any link between this and her delay.
Where the delay is both inordinate and inexcusable, does the balance of justice favour dismissal? Yes
The court noted the complete absence of an expert opinion to support Ms O’Neill’s claim. Importantly, the lack of detail as to what she claimed meant the hospital could not investigate the claim. If she was now allowed to proceed by providing details of the alleged negligence, this would relate to treatment that occurred many years earlier. The court was mindful that memories fade over time which would impact the ability of the hospital witnesses to be of any meaningful assistance at a trial. This would greatly prejudice the hospital’s defence of the claim and the court decided the balance of justice favoured dismissal.
Interestingly, while the court considered this case should be decided by reference to the Primor test and the balance of justice, it was also satisfied that the test per the O’Domhnaill[2] principles had been met. This means that even if Ms O’Neill’s delay had not been inexcusable, the claim would still be dismissed as there was a real risk of an unfair trial.
Case 2
In the Abrams case[3], Ms Abrams’ claim arose from injuries she alleged she suffered during the delivery of her child in November 2007. Ms Justice Bolger applied the Primor test:
Has there been inordinate delay? Yes
Over a decade had passed since the date of the treatment being criticised and since proceedings had issued in 2009. There were also lengthy delays during the case, where Ms Abrams did not make any effort to progress her claim. For example, it had taken her seven years to furnish incomplete medical records. In addition, she had taken no steps since the hospital sought to have the claim dismissed in June 2021.
If so, is that delay excusable? No
Ms Abrams’ former solicitor, who was given permission by the court in 2022 to come off record, set out the numerous attempts made to engage with her and her failures to respond. While Ms Abrams now disputed what was said, she had not communicated this disagreement when her solicitor applied to come off record.
Where the delay is both inordinate and inexcusable, does the balance of justice favour dismissal? Yes
The lengthy passage of time meant that necessary oral evidence was more fragile and unreliable than if the case had been heard within a reasonable time period. In addition, Ms Abrams did not show that she was ready to proceed to trial if her claim was not dismissed.
Conclusion
In both cases, the plaintiffs had a “late start”, issuing proceedings many years after the alleged negligent treatment. It is clear that where there is a late start, the onus lies with the plaintiff to avoid any further unnecessary delays.
We expect it will still be challenging for defendants to successfully dismiss medical negligence claims. However, these decisions suggest the chance of success will be greater where the treatment criticised occurred many years earlier and the recollection of treating clinicians is of significant importance.
The O’Neill decision in particular highlights the importance of plaintiffs being specific in their pleadings. The hospital must be given enough information to investigate the claim. While a plaintiff may overcome some delay in getting an expert report, it will be more difficult where they do not possess evidence that there was a reasonable basis to bring the claim.
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The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] O’Neill v Birthisle [2023] IEHC 515
[2] O’Domhnaill v Merrick [1984] IR 151
[3] Abrams v South Tipperary General Hospital [2023] IEHC 524
