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Cite as: [2003] IEHC 84

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Keogh v. Wyeth Laboratories Inc. & Anor [2003] IEHC 84 (31 July 2003)


     
    THE HIGH COURT
    Rec. No. 973P/1989
    BETWEEN
    JOAN BERNADETTE KEOGH
    PLAINTIFF
    AND
    WYETH LABORATORIES INCORPORATED
    AND JOHN WYETH AND BROTHER LIMITED
    DEFENDANTS
    JUDGMENT of Mr. Justice William M. McKechnie dated the 31st day of July 2003.
    General Background:
  1. By notice of motion dated 4th December, 2001, the defendants in the above entitled proceedings seek from this Court an order dismissing the plaintiff's claim for want of prosecution or in the alternative a similar order pursuant to the inherent jurisdiction of the court on the grounds of alleged inordinate and inexcusable delay on the part of the plaintiff in relation to the commencement and/or the subsequent prosecution of this claim. This said application is grounded upon two affidavits of Mr. Benjamin Holgate, who describes himself as the Legal Director of the second named defendant, and is opposed by the replying affidavit of the plaintiff, Mrs. Keogh. In addition to the matters so raised, there is also in being between the parties a motion by the plaintiff in which she seeks discovery and/or better discovery, as well as a preliminary issue by the defendant, as to whether or not the proceedings mounted herein are statute barred. It has been agreed between the parties that both the

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    discovery motion and the limitation issue should be deferred until such time as the relief sought in the present motion has been determined. Obviously if the Defendants are successful on this application it will not be necessary to determine any other matter or issue. Accordingly this judgment deals solely with the application to dismiss for want of prosecution and/or on the grounds of inordinate and inexcusable delay.

  2. The plaintiff, Mrs. Keogh, born in 1944 and resident in Dublin, is a housewife with five children whose ages now range I believe between 38 and 22. In or about the year 1979, having suffered from anxiety and panic attacks, she attended her general practitioner who prescribed for her the drug Ativan, which drug is a member of the Benzodiazepine group of drugs. Thereafter for several years she continued taking this medication which at all times was available on prescription only and was duly authorised by the appropriate National Regulatory Authority. As a result she alleges in these proceedings that she became drug dependent with significant side effects following an attempt at withdrawal. In consequence she claims that she has suffered severe personal injuries, including depression and suicidal tendencies, loss of concentration and reduced memory, despair and a loss of self esteem, and overall complains that her entire being was so badly affected that she was deprived of any meaningful existence for several years.

  3. The Statement of Claim pleads that the first named defendant was the manufacturer and supplier of the drug in question and that the second named defendant was its distributor and supplier in this jurisdiction. It is claimed, that the personal injuries, loss and other damage suffered by the plaintiff, resulted from the

    4. - 3 -

    negligence and breach of duty, including a breach of statutory duty on the part of both defendants in that, inter alia, they knew or ought to have known that it was unsafe to manufacture, supply or make available for public use this drug, that the same to their express or imputed knowledge produced dependency effects on the patients who used it, that no adequate warning accompanied the supply of such drug, that incorrect directions issued with regard to its use and that they knew or ought to have known that its ingestion over a period of time would cause like symptoms to these complained of by a person such as the plaintiff in these proceedings. A full defence has been filed by the defendants which defence also includes a plea under the Statute of Limitations Act 1957. Therefore, as of now, all issues remain open in this case.

  4. In the replying documentation to this motion it is pointed out that the first named defendant (WLI) neither manufactured or supplied this drug in the United Kingdom or Ireland and therefore should not be a party to these proceedings. It is stated that its associated company, the second named defendant (JWB) was the holder of the relevant product licence regarding the supply of the drug and was also the recipient of the necessary regulatory approval for the manufacture thereof. It is therefore said that in such circumstances the only appropriate defendant should be JWB. Whether this be correct, and it may well be so, is not a matter relevant to this motion and accordingly it is unnecessary to make any firm decision thereon. Therefore, purely for the purposes of convenience the defendants named in these proceedings will continue to be so named throughout this judgment.

    5. - 4 -
    Chronology of Pleadings:
  5. The following chronology would appear to be an accurate recitation, in sequential order, of the formal steps which took place in this case, such steps to cover the pleadings, the motions which issued and the court orders made thereon. These are as follows:

    6. (1) 27-01-89; Plenary Summons (date of service).
         
    (2) 03-03-89; Statement of Claim.
         
    (3) 03-04-89; First notice for particulars raised by defendants.
         
    (4) 07-07-89; Plaintiff's first motion for discovery.
         
    (5) 06-10-89; Defendants' motion seeking a reply to the particulars raised on 3rd April.
         
    (6) 23-10-89; High Court Order directing a reply to the particulars within six weeks from this date and also directing both parties to make discovery (general order) again within six weeks from this said date.
         
    (7) 19-04-90; Plaintiff replies to the said notice for particulars.
         
        - 5 -
    (8) 01-11-90; Plaintiff's motion for judgment in default of defence: (Inadvertently dated 30/11/90):
         
    (9) 13-12-90; Defendants' request for further and better particulars.
         
    (10) 14-12-90; Defence.
         
    (11) 06-02-91; Plaintiff's affidavit of discovery furnished.
         
    (12) 22-03-93; Plaintiff's reply to request for further and better particulars of 13-12-90.
         
    (13) 20-04-93; Plaintiff's motion seeking discovery.
         
    (14) 30-04-93; Defendant's second request for further and better particulars.
         
    (15) 13-05-93; Plaintiff's reply to this second request.
         
    (16) 14-07-93; Notice of intention to proceed served.
         
    (17) 24-03-94; Master's Order directing the defendants to make discovery, within four and a half months, of eight categories of documents, subject to the
        – 6 –
        plaintiff, her solicitor and advisors giving undertakings as to confidentiality in accordance with the drafts annexed, as a schedule to the said order.
         
    (18) 13-10-94; Defendants' notice of motion seeking third party discovery against Doctors Byrne, Muldoon, Corry and the Eastern Health Board.
         
    (19) 19-10-94; Notice of Trial served.
         
    (20) 28-10-94; Master's order on this third party application:
        The Affidavits to be sworn within four weeks from this date.
         
    (21) 27-01-95; Master's order extending the time to 27-04-95 for the defendants to make discovery.
         
    (22) 21-06-95; Plaintiff's motion to strike out the defence for failure to make discovery.
         
    (23) 27-07-95; Master's Order, on this motion made by consent, extending the time for a further sixteen weeks for the defendants to make discovery.
         
        - 7 -
    (24) 14-12-95; Plaintiff's second motion to strike out the defence for failure to make discovery.
         
    (25) 12-02-96; Defendants' affidavit of discovery is sworn and served on 14/2/96, and filed on 29/2/96.
         
    (26) 16-06-00; A second Notice of Intention to proceed is served.
         
    (27) 16-06-01; Plaintiff issues a motion for discovery.
         
    (28) 26-09-01; That notice of motion is filed.
         
    (29) 10-10-01; That notice of motion is served.
         
    (30) 04-12-01; Defendants' issue the motion which the subject matter of this judgment.
    Interspersed with the above documents, motions and court orders is correspondence which must be referred to as the same is relevant and in some instances crucial to an understanding of the background to this application.
    Relevant Correspondence.
  6. In the early years of this litigation there was little correspondence which is currently of any relevance. The originating letter is dated the 7th December, 1988. On

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    24th January, 1991 Mr. Thomas Loomes, solicitor on behalf of the plaintiff, indicated to Messrs. Matheson, Ormsby and Prentice on behalf of the defendants, that it was the plaintiff's intention to join her GP, the Minister for Health and the Drugs Advisory Board as co-defendants in these proceedings. That suggested step was in fact never pursued. On 4th November, 1993, in the context of the plaintiff's second motion for discovery then pending, an offer of limited inspection of certain documents was made, but on the same day, was rejected by Mr. Loomes. On 28th January, 1994, Mr. Loomes, sent a letter to the defendants solicitors wherein he identified eight categories of documents in respect of which he was seeking discovery and which, without alteration ultimately formed the subject matter of the Master's order dated 24th March, 1994. Nothing further of relevance occurred until the early part of 1995.

  7. On 16th March, 1995, Mr. Loomes informed Messrs. Matheson, Ormsby and Prentice, that for the purposes of discovery two individual solicitors and one firm of solicitors, in England, all identified, would act as the plaintiff's agents. This prompted an exchange of correspondence between the respective solicitors which continued until June of that year. The problem arose in this way. In the United Kingdom and Wales some 20,000 claims were taken against various manufactures of benzodiazepines. Some 3,530 such claims were against the defendants in these proceedings. Over 2000 firms of solicitors dealt with this litigation on behalf of the Claimants. They formed a solicitors group within which relevant information would be sought and given. In turn, that group nominated a steering committee. The three suggested solicitors were part of that steering group. In such circumstances, Messrs. Matheson, Ormsby and Prentice took the view that these solicitors were unsuitable to act as the plaintiff's agent in this case. They were concerned firstly that such

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    solicitors could not meaningfully sign the undertaking as required by the Master's order dated 24th March, 1994 and secondly, were also worried that documents or information obtained in the within proceedings, might or would be used for the purposes of litigation elsewhere, including New South Wales in Australia. The plaintiff, through her solicitor on the other hand took the view that she was entitled to appoint whom she so wished. She confirmed this position in a letter dated 31st May, 1995 in which it was also confirmed that these suggested nominees would sign the required undertaking. There the matter rested until the 27th July, 1995 when the plaintiff's motion to have the defence struck out for the defendant's persistent failure to make discovery was dealt with before the Master. In the defendant's continuing opposition to the engagement of these solicitors the late Mr. Ernest J. Margetson swore an affidavit on 25th July. What transpired between that date and the 27th July is unclear but on the latter occasion the Master of this court, by consent made an order extending the time for the defendants to make discovery for a further period of sixteen weeks from the date thereof. On 12th December, 1995 Mr. Loomes confirmed that no agents from the U.K. would be appointed for the purposes of discovery.

  8. As appears from para. 5 above, the defendants' said affidavit was filed on 29th February, 1996, with a copy thereof having being furnished to the plaintiff some two weeks earlier. On 10th September, Mr. Loomes sought a further copy of the affidavit as the previously supplied one had been misplaced. On 17th September that copy was furnished together with, if the covering letter be accurate, the schedule which contained some seventy pages of documentation. On 25th September, Mr. Loomes indicates that the affidavit was not acceptable "as you must set out in detail exactly what the documents are". This is a reference to the fact that the documents within the

    9. - 10 -

    schedule were numbered, e.g. 5050960 but were not otherwise individualised or separately identified, save by way of a brief description on each page from which it was impossible to meaningfully decipher what documents were being referred to. He threatened a motion for further and better discovery. On 9th January, 1997 a further copy of the affidavit of discovery was sent to Mr. Loomes. On 4th March, Mr. Loomes was complaining that whilst he had received a copy of the affidavit he had not seen the schedule attached thereto. A further copy was sent to him on 12th March. On 22nd October the plaintiff's solicitor again alleged that he had not received a full copy of the affidavit. This was responded to by letter dated 7th November enclosing a complete copy and also a copy of the schedule.

    There was no further communication or contact between the parties for more than two years after November 1997.

  9. In the year 2000, contact was re-established by an open letter dated 14th March, 2000, in which the defendants were requested to specify how much money they would pay to settle this action. That offer was rejected on 27th March. On 5th April Mr. Loomes sets out the reasons why there had been no inter partes, activity since November 1997 and once again threatens a motion grounded upon his dissatisfaction with the defendants affidavit of discovery. On 16th June, 2000, this complaint was reiterated with an indication that a further application for discovery was being prepared. A notice of intention to proceed, dated 16th, is filed on 27th June, 2000. One year elapses until the next movement in this case.

    10. - 11 -
  10. As previously recorded (see para. 5 above) the plaintiff on 16th June, 2001 issued a motion for further and better discovery. It was filed on 26th September, 2001, and served on the defendants on 10th October, 2001. On 17th July, 2001, there was a request for inspection with a Mr. Michael Behan being nominated to carry out that inspection. A holding reply emerged from Messrs. Matheson, Ormsby and Prentice. On 5th November, 2001, the plaintiff sought further discovery of nineteen specified categories of documents, with Ms. Ita Green also being nominated, as this time with Mr. Behan to carry out the suggested inspection. On 9th November, a further sixteen categories of documents were requested. Between 15th and 27th November six further letters were exchanged between the parties almost all from Mr. Loomes.

    11. These foregoing events lead to the 4th December, 2001, the date upon which the present motion was issued.

    Affidavit Evidence
  11. Mr. Holgate in both of his affidavits alleges that there has been inordinate and inexcusable delay in this case and that as a result this action should be dismissed. He claims that such delay predominantly if not entirely has been the responsibility of the plaintiff. He sets out the various steps taken in the proceedings, which are summarised above, and refers to, by way of exhibits the relevant documents and correspondence. He informs the court of the defendants' position with regard to the U.K. solicitors nominated in 1995 to inspect the documents on behalf of the plaintiff. He gives the history of similar U.K. litigation which was commenced in 1989. Apparently in 1994 the English authorities withdraw legal aid from virtually all of the

    12. - 12 -

    plaintiffs in such litigation. This resulted in a great number of such cases being withdrawn. The balance of the actions, which affected the respondents, were the subject matter of an application to dismiss either for want of prosecution or on the grounds of delay. This was successful before Mr. Justice Kennedy in July, 1996. The Court of Appeal affirmed his order on 13th December, 1996 and refused leave to appeal to the House of Lords. In addition Mr. Holgate claims prejudice and as part thereof asserts specific prejudice. He prays for a dismiss of the action.

  12. In her replying affidavit Mrs. Keogh says that this is a very complex case, involving medical and scientific matters which require a great deal of investigation, and submits that with the limited resources available to her this Court should not accede to the application which she is now facing. She contrasts her situation with the defendants' position in both the financial, scientific and legal areas. She explains what might be perceived as delay prior to the institution of these proceedings and points out that prior to October, 1994 it was necessary for her solicitor to issue six motions so as to progress the within proceedings. She adverts to failure on the defendant's part in a number of areas throughout the years and indicates that there had been no previous similar motion or indeed even a threat thereof prior to the institution of the within notice dated 4th December, 2001. She denies the allegations made under the heading of prejudice and asserts that another firm of solicitors in Dublin has approximately 100 cases against these defendants, which at the present time are at a much less advanced stage than her own proceedings. Within her particular circumstances she has found difficulty in getting the appropriate persons to inspect and copy the documents and this has been the reason for at least some of the delay in the case. She feels that Mr. Behan and Ms. Green, who are both prepared to sign the

    13. - 13 -

    necessary undertakings, should be allowed to inspect. Overall she states that the defendants, by their attitude and their inactivity have acquiesced in any delay that might have taken place. Furthermore given the volume of similar litigation which at one stage existed against these defendants in several different jurisdictions, they ought to have taken appropriate steps during the relevant time to ensure that, by way of documentation, personnel and experts, they would be in a position to defend this particular action which she has taken against them. They have in her opinion overstated the difficulties and on the balance of justice she prays that this Court should permit her action to proceed.

  13. Submissions:

    14. It was agreed between counsel for the respective parties that the relevant time frame for this court's consideration is between the 27th January, 1989 and the 4th December, 2001, this being the date upon which the subject motion issued. Given this period which is almost thirteen years, and given the fact that with the filing of the defence the pleadings were closed almost twelve years ago, if must follow that this constitutes "inordinate delay" as that phrase is understood in this branch of the law. The real questions, therefore, are whether or not such delay is excusable and if it isn't, whether the balance of justice favours a continuation or cessation of this action.

    In dealing with these points Mr. Quinn, B.L. on behalf of the defendants sub-divides the overall time into two broad periods, namely, from December, 1990 to February, 1996 and from that date to December, 2001. Though agreeing that the starting date should be a service of the plenary summons, nevertheless counsel also suggests that when a plaintiff starts late, there is an added obligation on her thereafter

    - 14 -

    to ensure that the documentation is processed quickly and her case brought to trial speedily.

    With regard to the first mentioned period it is submitted that whilst the defendants may have some responsibility for this five year period, nevertheless most of the blame must be attributable to the plaintiff. In support of this argument reference has been made to the plaintiff's failure to join her G.P., the Minister for Health or the Health Board as threatened in her letter dated the 24th January, 1991, to her solicitor's refusal of the offer of limited inspection contained in the defendants solicitors' letter dated the 4th November, 1993, to the necessity for the defendants to obtain the plaintiff's medical reports and to obtain third party discovery, and also to the stance adopted by Mr. Loomes, as indicated in correspondence between March, 1995 and December, 1995, with regard to the identity of U.K. agents to act in relation to discovery. These matters, it is said, support the view that the plaintiff is primarily responsible for any delay in this period of time.

    In respect of the second period, that is between February, 1996 and December, 2001 it is claimed that the plaintiff is fully responsible for the entirety of this period and that the reason offered for this delay does not constitute "an excusable reason" within the existing case law. Whilst it may well be, as Mr. Loomes said in his letter dated the 5th April, 2001, that for the previous number of years he had been working quietly behind the scenes on behalf of the plaintiff, this was an entirely insufficient basis to justify that delay. Furthermore, it is pointed out that no inspection of documents has yet taken place, that further letters demanding new and greater discovery issued on the 5th and 19th November, 2001 and that the introduction of Dr.

    - 15 –

    Dukes as a potential witness in this case, as well as the aforesaid Mr. Michael Behan, all constitute good reason as to why this action should not be allowed to proceed.

    In addition, both specific and general prejudice is alleged. It is claimed, as can be seen from paragraphs 33 and 34 of Mr. Holgate's first affidavit, that the existence or whereabouts of relevant persons who may have had an input into the generation of certain documents sought by the plaintiff are unknown to the defendants. Moreover at para. 35 of his second affidavit, Mr. Holgate says that at least five persons described as "potential witnesses" are dead, and, that others are unavailable for a variety of reasons, including ill-health and retirement.

    By way of matters general it is said that it would now be almost impossible to present any worthwhile evidence to a Court of trial as to the state of scientific knowledge some forty years ago, and that in any event given the lapse of time, the memory of those witnesses who might be available must of necessity be seriously curtailed. There is also the difficult and contemplated matter of any court trying to unravel the consequences for the plaintiff of taking the drug in question as distinct from similar consequences caused by separate and unrelated matters.

    Finally it is claimed that the Notice of Motion which the plaintiff issued on the 16th June, 2001, with regard to discovery was not issued in accordance with the Superior Court Rules and accordingly, for that reason alone, should fail.

    In conclusion it is submitted that the defendants have been seriously prejudiced and that if forced to defend this case, there is a substantial risk of an unfair trial occurring.

    - 16 -
  14. Mr. Senan Allen S.C. on behalf of the plaintiff, disagrees with the defendants in their submissions regarding the major issues in this case. He denies that there has been any inordinate delay and that what delay there has been, can be attributable either to the defendants or can be explained away by justifiable cause. In addition if this Court has to consider the question of justice then in his view, it clearly should favour a continuation of the action.

    15. In support of these submissions counsel refers to the following:-

    (a) The eight month period which elapsed between the initial reply to particulars and the filing by the defendants of their defence on the 14th December, 1990,
    (b) The total failure of the defendants to comply with the order made by this Court on the 23rd October, 1989,
    (c) The failure to make discovery pursuant to the Master's Order dated the 24th March, 1994 until February 1996,
    (d) The several motions which Mr. Loomes issued in order to try and progress this case,
    (e) The entitlement of the plaintiff to refuse the offer of limited discovery made in November, 1993,
    (f) The response of the Defendants in 1995 to the English solicitors who were nominated to assist the plaintiff in respect of discovery, was in fact putting the "cart before the horse" and in any event could not explain or justify there continued failure to make discovery,
    (g) The misinterpretation which the defendants have taken from the correspondence which occurred between September, 1996 and November,
    - 17 -
    1997; such correspondence was an attempt by Mr. Loomes to obtain an affidavit of documents which was in proper form and in due compliance with the relevant rules of court;
    (h) The true period of inactivity was between November, 1997 and March, 2000, a period of just over two years rather than the five and half years as alleged by the defendants;
    The reason offered for this period, namely the ongoing work being carried out by Mr. Loomes, was good and sufficient reason and therefore should be considered as excusing this delay.
    (i) Up to November, 1997 the defendants made no suggestion of prejudice and indeed prior to December, 2001 they never complained about inactivity, or raised the issue of prejudice or otherwise threatened to invoke the court's jurisdiction for any delay on the plaintiff's part.
    (j) The involvement of Mr. Michael Behan and Dr. Dukes was irrelevant,
    (k) Whilst the letters of the 5th and 9th November, 2001 in which further discovery was sought, could be classified as "unhelpful", nevertheless all of the documents therein sought were covered by the original order for discovery made back in 1989, and the vast majority of them by the Master's Order of March, 1994. If confusion exists on the discovery issue it followed from the format of the affidavit sworn on behalf of the defendants.
    (l) The suggestion of general or specific prejudice by the defendants was overstated and was very difficult to understand given the number of similar actions taken against them, not only in this jurisdiction but also elsewhere. It must almost certainly be the case that the defendants have taken adequate steps to defend themselves if one or more of these actions ever went to trial.
    - 18 -
    (m) The defendants had adopted a deliberate policy of waiting until the last moment and then pouncing by way of a motion. If that was there strategy it may also have consequences for them.
    (n) Given the consequences of dismissing this action from the plaintiff's point of view and considering the relative strength and position of both parties, the issue of justice clearly favoured the action continuing rather than being rejected.
    Case Law
  15. The case law relevant to an application of this nature has been extensively considered in both this court and in the Supreme Court over the past number of years. Counsel has referred me to a number of these decisions including Rainsford v. Mayor, Alderman and Burgesses of the City of Limerick [1995] 2 I.L.R.M. 561, Toal v. Duignan (No. 2) [1991] I.L.R.M. 140, Celtic Ceramics Ltd. v. Industrial Development Authority, [1993] I.L.R.M. 248, Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Southern Mineral Oil Ltd. (in liquidation) v. Cooney [1997] 3 I.R. 549, Whearty v. Agricultural Finance Corporation Ltd. (Unreported, High Court, McCracken J., 31st October, 1997), Martin v. Moy Contractors Ltd. (Unreported, Supreme Court, 11th February, 1999), Silverdale v. Italiatour Ltd. (Unreported, High Court, Finnegan J., 7th November, 2000) and Anglo Irish Beef Processors Ltd. v. Montgomery and Ors., (Unreported, Supreme Court, 31st July, 2002). From these cases certain well defined and now well established general principles have emerged which have been applied to the individual circumstances in each of the cases last mentioned. In Rainsford v. Limerick Corporation, [1995] 2 I.L.R.M. 561, Finlay P., pointed out that the onus of proof rested upon the party who asserts a desire to have the action

    16. - 19 -

    dismissed and that in discharging such a burden the moving party must satisfy the court that the delay complained of was both inordinate and inexcusable, for if the conclusion is otherwise there are no real grounds for dismissing the action. Even if such findings are made the court still has to exercise a discretion as to whether the interests of justice favour a continuation of the action or a dismiss thereof. Under this latter heading the nature of the case and the consequences of dismissal for the plaintiff are matters for consideration as are all other relevant and pertinent circumstances including any general or specific prejudice, as well as the defendant's activity or inactivity during the process in question.

  16. In O'Domhnaill v. Merrick [1984] I.R. 151, Henchy J., delivering the majority judgment of the Supreme Court, spoke of a situation where the delay had been both inordinate and excusable and said at p. 157:

    17. "such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between the plaintiff's need to carry on his or her delayed case against the defendant and the defendants' basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."
  17. In Primor PLC v. Stokes Kennedy Crowley [1996] 2 I.R. 459, the then Chief Justice Hamilton C.J., having referred to the above authorities, as well as to numerous other decisions in both this and the neighbouring jurisdiction, summarised the law

    18. - 20 -

    setting out the relevant criteria which should be applied by a court when faced with an application of this nature. He said at p. 475: -

    "The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:-
    (a) The courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
    (b) It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
    (c) Even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
    (d) In considering this latter obligation the court is entitled to take into consideration and have regard to
    (i) the implied constitutional principles of basic fairness of procedure,
    (ii) whether the delay in consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,
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    (iii) any delay on the part of the defendant – because litigation is a two party operation – the conduct of both parties should be looked at,
    (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,
    (v) the fact that conduct by the defendant which induces the plaintiff to incur further expenses in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
    (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
    (vii) the fact that the prejudice to the defendant referred to at (vi) above may arise in many ways and be other than merely caused by delay, including damage to the defendants reputation in business."
  18. There is one further point of law which has a relevance to this case. It is that where a party has, before the institution of proceedings, all but allowed a statutorily permitted time period to expire, then that party must be diligent in the further prosecution thereof to ensure that no inordinate and inexcusable delay occurs. If in

    19. - 22 -

    that pre-writ period the defendant should have suffered prejudice as a result of delay then matters subsequently occurring may constitute an "inordinate and excusable delay" when otherwise such matters would not be classified.

    The cases above recited and indeed many more on this topic which I have not referred to, have all applied these principles by way of general application with variations occurring only to meet the particulars facts or circumstances of each individual case. There is therefore no dispute as to what the appropriate law is. It is in its application to the facts of this case where the dispute arises.

    Inordinate Delay

  19. The first issue for consideration is whether or not, given the dates and time periods above mentioned, there has been "inordinate delay" in this case. As previously stated when the Notice of Motion issued, the Plenary Summons was in existence for almost thirteen years. The pleadings at time had been closed for almost eleven years and the notice of trial had been served more than seven years ago. It therefore appears to me that by any definition, the time period in question is inordinate. To hold otherwise would be tantamount to declaring that in this type of litigation the periods in question are usual, ordinary or normal. Though medical negligence cases involving product liability are undoubtedly difficult, nevertheless I cannot believe that in any circumstances there would be judicial approval for such a proposition. In my opinion, therefore, there has been inordinate delay in this case and any contrary suggestion or conclusion is unarguable.

    20. - 23 -

    Having so held the next phase of this inquiry is to decide whether that delay "is inexcusable".

    Inexcusable Delay

  20. Pre Writ delay

    21. From the medical reports on the plaintiff and made available by her to the defendants, it would appear that in or about 1979, having experienced a panic attack she first attended her General Practitioner, Dr. Brian Byrnes with this problem. Dr. Brian Byrnes prescribed Ativan and she continued ingesting this drug thereafter. About 1984 she began to realise that, possibly, she had a dependency on this medication. She attempted to reduce the dosage. Whilst having little memory of this period, she claims, according to Dr. Corry's report, dated the 6th of February 1989, that she was unable to look after herself, do her housework, go shopping or otherwise take care of her children. She was as so described "paralysed with panic attacks". In March or April, 1985 her husband brought her to see a psychiatrist in the Kilbarrack Health Centre. She was prescribed Frisium as an alternative tranquiliser. In the weeks following, her condition deteriorated and she was seen at Jervis Street Hospital. She was recommenced on Ativan. In May, 1985 she joined a support group which offered some help with regard to what she described as this dependency.

    In the context of this background it is alleged on behalf of the defendants that since the Plenary Summons did not issue until January, 1989, there was in this case inordinate and inexcusable delay prior to the issue of the writ. However no prejudice particular to this time has been pleaded or asserted, and in fairness it should be said that this period is not the primary source of the defendants' complaints.

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  21. In the plaintiff's replying affidavit she claims that in the 1980's she was suffering from serious withdrawal symptoms from this drug. These symptoms were said to have included depression, fear of leaving the house on her own, difficulty in making decisions, poor memory and panic attacks. Despite intensive treatment at St. Francis Day Hospital in Raheny these features persisted. She claims that her condition deteriorated in August, 1987 and that for a very lengthy period, stretching over ten years or more, she missed out on family life and suffered a loss of confidence and self respect. She was depressed and anxious and in Dr. Corry's words was "hollow on the inside." She claims at paragraph 8 of her affidavit that she was not capable or in a fit condition to consult any solicitor prior to February 1988 which was the date of her first attendance with Messrs Thomas Loomes and Co.

    22. To a significant extent this generalised description is borne out by the medical evidence referred to, including that of Dr. Cantrell in his report dated 9th August, 1994. This confirms what her physical and psychological sensations were in the early 1980's, that is prior to her first attendance at St. Francis Day Centre in May, 1985. It deals with her treatment in the following number of months and the medication given to her. It sets out what support she received including psychotherapy and group therapy. She also had a behavioural plan prepared for her. On this regime she made progress but was still on medication when referred back to the consultant by her G.P. In August 1987 her condition deteriorated and she was again seen by Dr. Byrnes in January 1988. Even at that stage she had sensations of depression with bouts of crying and tearfulness. She was getting panic attacks approximately four times a day lasting up to two hours. In the then recent past she had made no attempt to leave the family home. She was still on Ativan, one milligram daily and Stelazine, two

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    milligrams daily. Occasionally she was taking an extra Ativan if she felt a panic attack was imminent.

  22. From this evidence it is clear that no question arose in Mrs. Keogh's mind, at least prior to 1984/1985, that she was possibly dependant on this specific drug. When attempting to improve her condition she suffered serious withdrawal symptoms so much so that in visiting Jervis Street Drug Centre, she was recommenced on Ativan. Her physical and mental well being, throughout this entire period, has been summarised above. A person in such a condition may very well be quite incapable of consulting a solicitor or giving any meaningful instructions about a possible negligence case against the defendants. I believe therefore that in the context of the problems then existing it would not be proper or reasonable to describe the period from 1984/85 to 1989, as being one of inordinate delay. Even, however, if I am wrong in this assessment and even if such a classification could be attributable to this period, then in my view the same is definitely excusable on the grounds herein mentioned. The plaintiff's inactivity for this time was not caused by any personal blameworthiness on her part, but rather was the direct result of her mental and physical condition, which at least to a significant extent, was it is claimed, caused by the defendants' products. I therefore do not believe that there was in this case any pre-writ delay which could be described as either inordinate or inexcusable.

    23. This conclusion is made solely for the purpose of this motion and is not intended to have any wider import and in particular is not intended to have any impact on the limitation point which the defendants have raised and which remains outstanding.

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  23. 27th January, 1989 - 19th April, 1990

    24. In this period there was no delay in the service of the Statement of Claim but there was an unexplained delay of approximately one year in the plaintiff replying to the defendants' notice for particulars dated 3rd April, 1989. During this period the plaintiff, on 7th July, 1989, issued a motion for discovery against the defendants' which was heard by this court on 23rd October, 1989. On the same occasion the defendants' motion seeking a reply to the said notice for particulars was also dealt with. Whist the replies were not furnished, even within the permitted time, nonetheless the period in question was not highly influential. Of far more importance, however, was the issue of discovery which in the contemplation of both parties had to be dealt with. I therefore don't consider it reasonable to apportion any particular blame to the plaintiff for this period.

  24. 19th April 1990 – 14th December, 1990

    25. The defence was filed some eight months after the reply to particulars no doubt prompted by the plaintiff's motion for judgment which issued on 1st November, 1990. The defence followed on 14th December, 1990. Apart from a plea under the Statute of Limitations 1957, this document effectively contained a traverse only. Although the period was eight months and though no explanation has been furnished for it, nonetheless its significance has been very considerably reduced by the events which later transpired, and therefore of itself is not hugely important.

  25. On 6th February, 1991 the plaintiff furnished her affidavit of discovery. Thereafter no issue was ever raised by the defendants as to the adequacy of this document or otherwise as to the plaintiff's compliance with the High Court Order for Discovery made on October 23rd, 1989.

    26. - 27 -
  26. 13th December, 1990 – 22nd March, 1993

    27. On 13th December, 1990, the defendants raised a letter for further and better particulars arising out of the plaintiff's claim. This was not replied to until 22nd March, 1993. This period, which is over two years is wholly unexplained in the documentation before the court. Consequently, the factual responsibility therefor must attach to the plaintiff. However in looking at the legal consequences which follow, one must consider the discovery situation as it applied to defendants. This and the overall discovery issue is dealt with in the following paras of this judgment.

  27. 20th April, 1993 -29th February, 1996

    28. During this period by far the most important event which took place centred on the question of discovery. The raising by the defendants of a second request for further and better particulars and the reply thereto are not material. A Notice of Intention to proceed was served on 14th July, 1993, with the Notice of Trial served on 19th October, 1994, this at a time when quite evidently the case was no where near ready for trial.

    On 20th April, 1993, the plaintiff issued a notice of motion seeking discovery against the defendants. This appears to have been unconnected with and treated as separate from the order for discovery made back on 23rd October, 1989; which Order in fact was never complied with by the defendants. Why this course was adopted has never quite been explained but perhaps, in light of the order ultimately made, it might be viewed as the plaintiff seeking discovery of specific categories of documents as distinct from the generality of the original notice and order. In any event, apart from an exchange of letters on 4th November, 1993, in which the plaintiff refused an offer

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    of limited inspection, nothing seems to have occurred for the rest of 1993 which could be said to have progressed the hearing of this motion. On 28th January, 1994, Mr. Loomes Solicitor wrote to Messrs Matheson, Ormsby and Prentice and suggested the terms of a possible order. That suggestion in fact without alteration became the subject matter of the Master's order dated 24th March, 1994. That order was subject to undertakings as to confidentiality, by both the plaintiff's solicitor and any others who might be engaged to inspect the discovered documents. A period of sixteen weeks was allowed for the Affidavit. Apparently on 27th January, 1995, the Master enlarged the time up to the 27th April, 1995, for the defendants' compliance with his said order. That date passed with no discovery made. On 21st June, a motion to strike out the defence for failure to make discovery was issued. On the hearing date, namely 27th July, 1995, a further period of sixteen weeks, by consent, was given for the making of discovery. That date also passed. Another motion to strike out the defence for failure to make discovery issued on 14th December, 1995. On 12th February, 1996, an affidavit as to documents was sworn on behalf of the defendants which was served two days later and which was filed on 29th February of that year. Therefore almost three years elapsed between the issue of the second motion and the making by the defendants of this affidavit of discovery. Indeed over six years had by then passed from the making of the first order. An examination of the reasons why this occurred now becomes necessary.

  28. On behalf the defendants it is suggested that this delay was caused by the plaintiffs medical records not being available, by the necessity to obtain third party discovery, by the voluminous documentation involved, by reason of the nomination of English solicitors, (whose identities were unacceptable to the defendants) to inspect

    29. - 29 -

    the documents, and finally by the plaintiff's failure to accept the offer of limited inspection made on 4th November, 1993.

  29. By way of general comment, and before dealing specifically with these reasons, it seems to me difficult on the face of things, to understand why the plaintiff's medical records constituted any bar to the defendants' filing their affidavit as to documents. The offer of inspection is irrelevant as it was rejected on the same day it was made and it referred to limited inspection only. The plaintiff, in my view was perfectly entitled to have the defendants swear a formal affidavit of discovery. Equally so in my view the nomination of specific U.K. agents should not have, at that time, constituted a barrier in the minds of the defendants. The concerns about the English Solicitors may have been of significance when the question of inspection arose but surely not at a stage which preceded even the swearing of the affidavit itself. In any event apart from these general observations, there is no substance in my view when one considers each matter individually, in any of these points which have been offered as an explanation for the discovery process. My reasons for this conclusion are as follows.

  30. In the Statement of Claim, the plaintiff pleaded that she had attended her general practitioner in 1979 and had also attended Kilbarrack Health Centre and Jervis Street Hospital. In her reply to particulars dated 19th April, 1990, she names her general practitioner, as she does again on 24th January, 1991 and also dates her attendance at Kilbarrack and her joining of the support group. On 22nd March, 1993, again in a reply to further particulars she identifies by name Dr. Murphy, Dr. Muldoon and Dr. Corry whom she attended at different stages throughout the years. Therefore,

    31. - 30 -

    from the very beginning the defendants were on express notice and must have known that she attended various medical personnel for her condition. And yet a motion for third party discovery against her G.P. Dr. Byrnes, Dr. Muldoon, Dr. Corry and the Eastern Health Board did not issued until 13th October, 1994. The order was in fact made on 28th October, and four weeks was allowed for discovery. There is no evidence that any difficulties were encountered in this third party process. In any event I am unable to see how either the plaintiff's medical records or those in the possession of the above-mentioned third parties are relevant in the present context. Therefore I cannot accept that these matters were the source of such difficulties for the defendants so as to prevent them from complying with their obligation to make discovery.

  31. On 16th March, 1995, some one year after the Master made the specific discovery order, Mr. Loomes wrote to the defendants solicitors and indicated that two named solicitors and one firm of solicitors in the United Kingdom would act on behalf of his client for the purposes of inspection. On 4th April, 1995, Messrs. Matheson, Ormsby and Prentice responded by saying that this would not be necessary as discovery would be available in their Dublin office and in addition they referred to the undertakings required by the Master's Order of 24th March, 1994. On 17th May, 1995, the defendants solicitors rejected those individuals who had been nominated by the plaintiff. On 31st May, 1995, Mr. Loomes took the view that he was entitled to appoint anyone he wished provided they signed the required undertakings. On 9th June, 1995, the unsuitability of the nominees was repeated. Also in that letter, it was suggested that documentation forming part of the discovery was then available for inspection. When read with an earlier letter of the 27th of April, 1995, the impression

    32. - 31 -

    given seems to be that the entire documentation, as required by the Master's Order was then available for inspection, a situation difficult to understand given that a further eight months elapsed before the Affidavit was sworn. In any event further correspondence followed and the motion of 21st June, 1995, then issued. The late Mr. Ernest Margetson swore an affidavit on 25th July, 1995, in opposition to this motion. On 27th July, 1995, the Master by consent extended the time for discovery for a further period of sixteen weeks. And finally on 12th December 1995, Mr. Loomes indicated that no individuals from the United Kingdom would be employed in the discovery process.

  32. What was agitating the defendants about these nominees is set forth at para 7 above and can briefly be restated as follows: in England and Wales approximately 20,000 claims had been issued against the manufacturers of benzodiazepines, some 3,530 of these were against the present defendants. Many solicitors, evidently, were involved on behalf of individual plaintiffs. These solicitors formed themselves into a group. That group in turn appointed a steering committee. The three firms and/or persons nominated were part of this steering committee. The defendants therefore were concerned, firstly, that these persons could not meaningfully sign the undertaking as it would be in conflict with their professional duty to their respective clients and secondly, that documents made available in this jurisdiction, for the purposes of this case, might be used for reasons not authorised by the general law relating to discovery. In other words such documents might be used elsewhere. Affidavits were filed in support of this view. It is only right to say that the defendants were justified in raising these concerns but for present purposes it is unnecessary to decide whether in fact these were or were not well founded. In respect of such

    33. - 32 -

    objections, however, which were the subject of much correspondence between March to July 1995, one can only assume that a resolution was reached between the parties, as otherwise it is highly unlikely that the defendants would have agreed to the consent order made on 27th July, 1995. In addition it seems to me that whilst it might have been prudent to try and resolve such difficulties, nevertheless surely this argument, at that point in time was premature, there still being no defendant's affidavit as to documents in existence. I therefore do not accept this as a reason for the defendants delay in making discovery.

  33. Of course I appreciate the extensive nature of the documentation which was required to be considered by the defendants before filing their affidavit, nevertheless the plaintiff in my opinion cannot be blamed for this in any way. She was not at fault. She was entitled to a discovery and a formal Affidavit of Documents. Indeed all four relevant orders namely 23rd October, 1989, 24th March, 1994, 27th January, 1995, 15th February, 1995 and 27th July, 1995, were made by consent. Therefore none of this time period can be attributable to the plaintiff; I say this being conscious of her obligation to move this litigation on. However in my view reasonable steps were taken by her solicitor in response to this obligation. Consequently she cannot be held responsible for this period.

  34. As is evident from what has previously been stated, there was also litigation in existence, between 1989 and 1996, against these defendants in England. This litigation raised the same or comparable issues as those in the present action. In addition litigants also sued in Australia. Given this, it is difficult to imagine that the defendants did not devote a very considerable amount of time, energy, commitment

    35. - 33 -

    and expertise in identifying and collating the documentation required in order to meet discovery obligations which would inevitable arise and also, of course, as part of their own preparation for trial. It is highly probable that they did, an inference perhaps supported by the format of the discovered documents which was not category specific to the Master's Order or to this litigation but rather was in a form far more general that that. If this view is reasonable, then on that basis as well as for the other reasons mentioned, I believe it is also reasonable to conclude that the defendants were responsible for the entire period of this delay in making discovery. That in my view goes back to the first order made by the High Court on 23rd October, 1989. That being so and given the pivotal role, which quite evidently discovery was and was intended to play in this case, I do not believe that any weight of significance should be given to the plaintiff's failure to reply to the original notice for particulars for over one year or her failure to reply to the second notice for particulars for almost two years. In my view these matters were contemporaneous with the critical time path of the discovery process. I would therefore conclude that for the time span up to February 1996, the plaintiff should not have to carry any weight of responsibility for this period. This includes the criticism which the defendants have made against the plaintiff in that, though threatening to do so by letter dated the 24th January, 1991, she did not in fact at any stage join or seek to join her G.P. or the Minister for Health or the Drugs Advisory Board. This failure had no impact whatsoever in the prosecution of this case.

  35. The 29th February, 1996 – 7th November, 1997

    36. On 10th September, 1996, Mr. Loomes, solicitor sought from the defendants a further copy of the affidavit of discovery indicating that the original copy had been

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    mislaid. That was supplied on 17th September, 1996. On 25th September, 1996, Mr. Loomes makes complaint that the affidavit as filed was not acceptable "as you must set out in detail exactly what the documents are". A threat to seek an order for further and better discovery was made. On 9th January, 1997, a further copy of the affidavit was sent by the defendants to Mr. Loomes. On 4th March, 1997, yet again Mr. Loomes sought a copy of the affidavit and a detailed schedule of documents. That letter said "we would ask you to note that although we have received your affidavit of discovery no schedule is attached." This reference must apply to the copy sent on 9th January, 1997 and not to the earlier copies furnished in February and September, 1996. This because Mr. Loomes must have had sight of the schedule to make the observations which he did in his letter dated 25th September, 1996 and also because the cover sheet of 9th January, 1997 refers to five documents. On 12th March, 1997 a further copy was sent. On 22nd October, 1997, at least for the third time, Mr. Loomes again sought a full copy of the affidavit of discovery. This was supplied on 7th November of that year.

  36. Mr. Allen S.C. argues on behalf of the plaintiff that it would be wrong to treat this correspondence as indicating that Mr. Loomes had mislaid the original copy affidavit as furnished. Rather, he says that what Mr. Loomes was trying to do was to get the defendants to make their affidavit of discovery in proper form, that is in a form which complied with both the rules of the Superior Courts and the relevant case law thereon. It would be incorrect he claims to view the correspondence in any other light. At worst from the plaintiff's point of view, if there was any confusion or misunderstanding, this followed from the defendants' failure to produce an affidavit in correct form and therefore no blame should attach to her for this period.

    37. - 35 -
  37. I am satisfied that the defendants in this case sent to Mr. Loomes in February, 1996 a full and complete copy of the affidavit of discovery. By this I mean a copy of the entire documentation which comprised the affidavit of documents. I, therefore, cannot understand why Mr. Loomes sought on three later occasions namely 10th September, 1996, 4th March, 1997 and 22nd October, 1997, further copies of this document. I do not accept the explanation as offered. Whilst it is true to say that complaint about adequacy was made on the 25th September, 1996, the rest of the relevant correspondence makes no such complaint. In particular three letters dated the 10th September, 1996, the 4th March, 1997 and 22nd October, 1997, in which Mr. Loomes seeks a full copy of the affidavit of Paul Writer (sic) which can only be interpreted as referring to the affidavit as originally sworn by Paul Reacher. If Mr. Loomes' intention was otherwise he had an obligation to make that clear and to avoid any resulting confusion. Again if it was otherwise the wording of his letter dated the 25th September, 1996, should have been repeated, even in clearer form, in later correspondence. Therefore I do not accept that this period was taken up with any real argument as to adequacy of form. In my view over twenty months was therefore lost in fruitless correspondence. Since I cannot identify any justifiable reason for this, from the plaintiff's point of view, I must therefore conclude that she is entirely responsible therefor.

  38. 7th November, 1997 – 14th March, 2000

    39. This period covers about two years and four months. During this time there was no communication of any description between the parties. On 14th March, 2000 contact was re-established by Mr. Loomes when he sent an open letter to the

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    defendants solicitors, inquiring of them as to what compensation their clients would pay to the plaintiff to settle her action. The explanation offered by the Solicitor for this inactivity is contained in his letter dated 5th April, 2000. It was suggested that "we have quietly being working behind the scenes and we consider that we do have enough evidence to succeed against your client". This in my view is quite an inadequate response to cover this time period. Whilst one can understand the difficulties and complexities of this litigation, nevertheless the period under review commences almost nine years after the issue of the plenary summons takes in the eleventh anniversary of the institution of those proceedings. I therefore find this brief explanation to be unacceptable and can only conclude that no better justification exists. I must therefore hold the plaintiff responsible for this time.

  39. 14th March, 2000 – 4th December, 2001

    40. Messrs. Matheson, Ormsby and Prentice indicated by letter dated 27th March, 2000 that their clients were not interested in settlement. On 16th June, 2000, a Notice of Intention to proceed was served as well as a letter indicating that the discovery, in the format as originally furnished, was unacceptable and that an application for a further order was in the process of preparation. Nothing further was heard from the plaintiff until 17th July, 2001. Before referring to this correspondence, on 16th June, 2001, the plaintiff did issue a motion in relation to further and better discovery but did not file the same until 26th September, 2001, and did not serve that motion until 10th October of that year. On 17th July, 2001, a Mr. Michael Behan was nominated on behalf of the Plaintiff to carry out an inspection of documents. Holding replies on 7th and 10th August, 2001, were received from Messrs. Matheson, Ormsby and Prentice On 5th November and on 9th November, 2001, Mr. Loomes on behalf of the plaintiff

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    sought from the defendants further discovery of, respectively, 19 categories of documents and 16 categories of documents. A Ms. Greene was named as well as Mr. Behan to carry out the inspection. Several more letters followed between the 15th November and 27th November, 2001. The effective response on behalf of the defendants to this correspondence was the issue of the present motion on 4th December, 2001.

  40. During this time span there was a period of one year from June 2000 and a period of four months from July, 2001 to November, 2001 in which there was no activity or movement by the plaintiff. No explanation has been offered for this. The responsibility for these periods must therefore once again rest with the plaintiff.

  41. In the second affidavit of Mr. Holgate he deals at length with Mr. Behan, whom it will be recalled was nominated in July 2001 to inspect the documents on behalf of the plaintiff, as he does with Dr. Dukes, a witness retained to advise the plaintiff on the issue of liability. In my view the credibility or otherwise of this doctor to give evidence is a matter for a court of trial as is the question of what weight (if any) should be given to any such evidence. With regard to Mr. Behan it seems to me that his suitability as a person to inspect the documents only arises if this present application is unsuccessful. I therefore do not consider that his suggested involvement is germane to the present motion.

  42. In my view, the delay between February, 1996 and November, 2001 is from the plaintiff's point of view inexcusable. Though as previously stated she is not responsible for the delay up to February, 1996, nevertheless it must be noted that

    43. - 38 -

    during this period pleadings closed in December, 1990, a notice of intention to proceed was served on 14th July, 1993 and a notice of trial served on the 19th October, 1994. As of February, 1996, seven years have passed from the date of a plenary summons. It was therefore in my view incumbent upon the plaintiff, who has primary responsibility for the carriage of these proceedings, to ensure that matters thereafter would move with far greater urgency and far greater dispatch than previously was the case. And yet for a twenty month period there was what I believe to have been fruitless correspondence between the parties. And then between November, 1997 and March, 2000, there was no contact whatsoever with the suggested explanation being quite unacceptable. In addition, having served a notice of intention to proceed one full year elapsed before a motion issued. Not only that but it then took the plaintiff a further four months to serve that motion. I cannot hold that the reasons advanced are sufficient to deny to this period the phrase of inexcusable delay. Consequently, I conclude that in this case there has been inordinate delay and that from the plaintiffs' point of view it has for the period above mentioned been inexcusable.

  43. Balance of Justice

    44. Following upon these findings I must now decide whether or not the balance of justice favours the continuation of this action or favours its cessation. In so deciding I am conscious of the physical and psychological trauma which it is alleged has been caused to the plaintiff by her claimed drug dependency on Ativan. I am mindful that this litigation is complex and difficult involving many issues of a medical and scientific nature. I realise that the plaintiff is a lady of virtually no means and that it must have been quite difficult for her to identify and engage relevant experts to operate on her behalf.
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  44. On the defendants side it is alleged that there exists specific prejudice as well as general prejudice. See para 13 above. It is claimed that if this action now goes to trial the court will be dealing with events which span up to forty years ago and that it will not have available to it witnesses who can accurately reflect the nature of the scientific and medical learning at that time. Many of the potential witnesses which the defendants have identified are either dead, in ill health, or retired from the company or are otherwise untraceable. Experts which might have been available many years ago are not now available. Overall it is said that specific prejudice has been caused by the passage of time and that this will inevitably be inflicted on the defendants if they are forced to meet this action.

  45. In addition there is of course generalised prejudice with regard to recollections of potential witnesses, the availability of documents etc. Moreover it is asserted that any court of trial would have great difficulty in trying to distinguish between the effects of Ativan on the plaintiff on the one hand and her underlying condition and/or the consequences of ingesting other drugs and/or the effects on her of her personal psychiatrist health, on the other hand. And so, it is submitted, that this case on the balance of justice should not be allowed to proceed.

  46. In evaluating this matter I am of the view that whilst the outstanding motion for discovery and the further requests of 5th and 9th November, 2001, are matters which I must take into consideration, nevertheless I am also entitled to assume that if these proceedings continue the judge hearing these motions will carefully consider the history and background circumstances to them. That court will be aware of the delay in the issue of the motion and any complaints that the rules have not been complied

    47. - 40 -

    with. This applies also to the letters of the 5th and 9th of November, 2001. It will, I have no doubt, vigorously scrutinise why at this stage of the proceedings there should be new discovery in this case. Indeed it may readily agree that the categories of documents sought are substantially covered by the Master's Order dated 24th March, 1994 and that accordingly for this and indeed for several other reasons no further movement on the said letters is necessary. Whatever the range of argument might be, these are matters well capable of resolution on the actual hearing of such motion and are matters on which of course any views expressed in the judgment are purely obiter.

  47. As previously stated, the defendants assert both general and specific prejudice. Though heavily elaborated upon on the affidavits, I don't quite believe that this prejudice is as intense or as disabling as is claimed. The plaintiff's medical treatment was sought and obtained by her as part of the public health care system in this country. Her treating doctors were therefore likely to change from time to time. Her medical records are essentially intact and are available.

    48. The difficulties in identifying and isolating what precise consequences have followed for the plaintiff from the ingestion of this drug, undoubtedly poses difficulties but such difficulties are not uncommon problems which the courts have to face on a regular basis. The issue of causation is ever present in contested medical cases and in product liability cases. Bearing in mind that the onus of proof is upon the plaintiff, I see this as a greater difficulty for her rather than for the defendants.

  48. It is quite true to say that records, correspondence, data, test results and much other documentation emanating from the defendants will be relevant in this case.

    49. - 41 -

    Equally so it is true to say that the events covered by such documentation may range back for several years indeed perhaps forty or more. However it must be borne in mind that the defendants were named as parties in multiple actions of litigation, covering identical or comparable issues in the United Kingdom in 1989 which litigation continued until December 1996. Likewise patients in Australia similarly sued. Perhaps also in other jurisdictions. Therefore it is unthinkable that the defendants did not throughout this period allocate sufficient resources and personnel to comprehensively deal with the question of documentation. Moreover there is still in being in this jurisdiction some 90 similar cases against the Defendants in which the same documentation would be relevant. If, in the context of the entire litigation against them, they have ignored this question of documentation then I fear that they must abide by the consequences. I cannot believe, however, that this is the case or that the production of such documents, if this case should go to trial, would unfairly prejudice the defendants.

  49. With regard to witnesses, both in-house and external, it seems to me that the issues on the question of liability are predominantly going to be determined on documentation and on the views of expert witnesses thereon. Whilst it may not be possible for the defendants to rely upon witnesses whom they may have wished to do so if this trial had taken place earlier, nevertheless I cannot accept that they could not engage alternative experts who could just as ably assist this court as those who previously might have been available. Equally so with regard to employees of the Defendants. In addition any problems which might arise in recalling the state of relevant medical and scientific knowledge, even going back over the past four decades, is of course a difficulty but is not one which in my view cannot be overcome.

    50. - 42 -
    Whilst therefore it must be readily recognised that the passage of time which has elapsed in this case undoubtedly has contributed in increasing the difficulties in an already difficult situation, nevertheless I believe that the defendants have overestimated those difficulties as the same apply to them.
  50. Under this "balance of justice" consideration I must also take into account the fact that in my opinion the defendants did not simply acquiesce in the time period up to February 1996, but were indeed solely responsible for it; secondly, in the five years which followed, the defendants at least tolerated if not acquiesced in the pace of activity or rather inactivity in this case; thirdly, this action is likely to be tried essentially on documentation; fourthly, there is at least an arguable case that the defendants have still not complied with their obligations in respect of discovery, in that they have not properly or adequately identified the documents contained in the schedule to their affidavit; fifthly, the existence of the other litigation involving the defendants above mentioned, and sixthly, the consequences of denying to the plaintiff her right to seek compensation for events which she claims have had a profound and devastating effect on her life over very many years.

  51. Finally it should be noted that prior to the issue of the motion dated 4th December, 2001, the defendants had not previously mentioned or threatened the plaintiff with any motion and had not at any stage warned of prejudice or potential prejudice. They could have served Notice of Trial themselves, or applied to dismiss the action for want of prosecution at any time since February 1991, – see O. 36. r.12(b) and O. 122. r. 11 of the Rules of the Superior Courts. They only sought to dismiss this claim some thirteen years after the plenary summons issued. A similar

    52. - 43 -

    situation apparently exists in respect of the remaining 88 cases which stand against the defendants in this jurisdiction. It seems that most if not all of these cases have progressed very slowly or have been dormant for very many years. As with the instant case up to December 2001, no motion to dismiss in any such action had issued though the defendants now threaten to do so. If one contrasts the manner in which the defendants have dealt with the UK litigation and the Irish litigation, I am left with a very clear and definite impression that the defendants intentionally adopted a strategy in all of the Irish cases, of laying low and of refraining to assert their rights in the hope or assumption that these cases would not be progressed and that they would, in fact without any formal order, simply abate. If that did not happen, they would wait until what they considered to the last moment and then motion. If this be correct it is of course a stance which the defendants are entitled to take but, as Mr. Justice McCracken warned in similar circumstances in Whearty v. Agricultural Credit Corporation Ltd. (Unreported, High Court, McCracken J., 31st October, 1997) "if the case does not go away then they must suffer the consequences."

  52. In conclusion therefore, I must decide where the balance of justice lies as between the parties to this litigation and must do so on the facts and circumstances as outlined above. Though, simply on the face of it, the relevant time period looks appalling, nevertheless if I was to dismiss this action I would have a real sense of doing an injustice to the plaintiff. I therefore refuse to so do. Accordingly I dismiss the application.

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