O'Connor v The Health Service Executive and ors [2019] IEHC 930 (23 October 2019)
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 930
[207/2000 JR]
BETWEEN
NOELLE O’CONNOR
APPLICANT
AND
THE HEALTH SERVICE EXECUTIVE
AND
THE MINISTER FOR EDUCATION AND SCIENCE
AND
THE MINISTER FOR HEALTH AND CHILDREN
AND
IRELAND AND THE ATTORNEY GENERAL
AND
THE CHILD AND FAMILY AGENCY
RESPONDENTS
JUDGMENT of Ms. Justice Reynolds delivered on the 23rd day of October, 2019
Introduction
1. This is an application to, inter alia, re-enter the within proceedings which were struck out
by Order of Quirke J. dated 22nd May, 2006.
2. Before dealing with the merits or otherwise of the application, it is necessary to set out
the factual background to the proceedings.
Factual Background
3. The applicant was born on the 9th August, 1984 and is now aged 35. The applicant has
suffered from psychological and psychiatric difficulties from a young age and was formerly
in the care of the first named respondent pursuant to an order of the High Court.
4. Judicial review proceedings were commenced on her behalf against the respondents
herein in 2000 seeking declaratory and other ancillary reliefs. In essence, the applicant
claims that the respondents failed to ensure that an appropriate placement was provided
for her in a high support unit during her time in care having regard to her particular
special needs.
5. Leave was granted by order of the High Court dated 27th April, 2000. Thereafter, a
motion issued on foot of that Order seeking, inter alia, an order providing for a residential
placement for the applicant in a suitable high support unit together with the appropriate
supports.
6. The applicant was initially detained in the care of the Eastern Regional Health Board in
Oberstown Girls Centre before she was subsequently transferred to Ballydowd Special
Care Unit in September, 2000. A Guardian ad litem was appointed at that time.
7. The proceedings were listed for hearing in July 2002 but owing to the applicant’s fragile,
psychological and psychiatric state, were unable to proceed. In the circumstances, they
were adjourned generally with liberty to re-enter.
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8. In May, 2003, the High Court made an order discharging the Guardian ad litem and
granted the applicant liberty to proceed in her own name having attained her majority.
9. In March, 2006, the Guardian ad litem issued a motion for his costs. It appears common
case that the application was not served upon the applicant or her legal advisers.
10. At the hearing of the motion, an order was made providing for the Guardian’s costs and
the proceedings were struck out. The order erroneously recites that the applicant was
present in court.
11. In December, 2008, an application was made under the slip rule by the Guardian ad litem
seeking to have the order amended inserting the Guardian in place of the applicant in
respect of the order for costs in circumstances where an error arose on the face of the
order. That amendment was granted but the order erroneously continued to recite that
counsel for the applicant was present on the day the proceedings were struck out.
12. In February, 2017, the applicant’s solicitor issued the within motion seeking liberty to re-
enter the within judicial review proceedings together with other ancillary orders in
circumstances where no final order was ever made in the presence of the applicant’s
solicitor or counsel.
13. Many of the original reliefs sought by the applicant are of no relevance in circumstances
where she is no longer a minor. The primary outstanding relief claimed on her behalf is
that of damages.
The Applicant’s Position
14. The application is grounded on a number of affidavits sworn by Pól Ó Murchú, solicitor,
who has at all times been instructed by the applicant in relation to the proceedings
herein.
15. In his affidavits, a full history of the orders previously granted in the within proceedings
have been set out as follows: -
(a) 27th April, 2000, Order of Finnegan J. granting leave to issue the within judicial
review proceedings.
(b) 3rd May, 2000, 7th June, 2000 and 28th June 2000, Orders of Kelly J. directing that
the applicant be detained at Oberstown Girls’ Centre, Lusk, Co. Dublin.
(c) 24th August, 2000, Order of Herbert J. directing that the applicant be transferred to
Ballydowd Special Care Unit on 11th September, 2000.
(d) 25th August, 2000, Order directing the Commissioner and members of An Garda
Síochána to search for and arrest the applicant without warrant and to detain her in
Oberstown.
(e) 30th November, 2000, Order of Kearns J. directing a phased return of the applicant
to Ballydowd.
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(f) 8th March, 2001, Order of Kearns J. directing the applicant be transferred from
Ballydowd to St. Brendan’s Psychiatric Hospital.
(g) 5th April, 2001, an Order directing the transfer of the applicant from St. Brendan’s
Psychiatric Hospital to James Connolly Memorial Hospital together with the
detention of the applicant pursuant to the Mental Treatment Act.
(h) 31st May, 2001, an Order granting liberty to the applicant to amend her Statement
of Grounds.
(i) 4th July, 2002, Order of O’Caoimh J. adjourning the proceedings generally with
liberty to re-enter.
(j) 29th May, 2003, Order of Kearns J. discharging the Guardian ad litem and granting
liberty to the applicant to proceed in her own name.
(k) 22nd May, 2006 Order of Quirke J. amending the title of the proceedings to allow
the Health Service Executive be substituted as the first named respondent in lieu of
the Southern Area Health Board and thereafter striking out the proceedings.
(l) 5th December, 2008, Order of O’Neill J. granting liberty to amend the order dated
22nd May, 2006 to substitute incorrectly identified parties and dates.
16. In response to the within application, each of the respondents filed replying affidavits
objecting to the proceedings being re-entered on the grounds of delay. Further affidavits
were filed by Mr. Ó Murchú on behalf of the applicant dealing with the issue of delay on a
without prejudice basis, in circumstances where it is contended that there is no
application before the court to dismiss the claim for want of prosecution, and without
prejudice to the submission that such an application should be brought at the close of the
pleadings herein.
17. In dealing with the delay issue, it is contended on behalf of the applicant that the delay in
prosecuting the within proceedings was caused by reason of the applicant’s psychological
and psychiatric difficulties which were caused by reason of the actions of the respondents.
Further, it is submitted that the applicant had, on an ongoing basis since 2002, with some
interruptions, been unable to manage her affairs and therefore not in a position to
prosecute her claim herein.
18. Paragraphs 12-19 of Mr. Ó Murchú’s affidavit dated 27th April, 2018 elaborates upon the
medical grounds relied upon and exhibits a number of medical reports.
19. Mr. Ó Murchú avers that the applicant instructed him to advance the within proceedings in
early 2016 and he thereafter bespoke the High Court file from the Central Office. Upon
receiving all orders on the file in February, 2016, he became aware that the proceedings
had in fact been struck out in or around May 2006. The within application issued in
February 2017 seeking to have the proceedings re-entered to enable the applicant to
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pursue her claim for damages. A draft intended Statement of Claim was exhibited in the
original grounding affidavit dated 10th February, 2017.
20. In a further supplemental affidavit, Mr. Ó Murchú concedes that he had in fact received a
copy of the Order dated 22nd May, 2006 (striking out the proceedings) in December
2013, in excess of three years before the application was made to re-enter the
proceedings.
The Health Service Executive’s Position
21. The affidavit of A.B. sworn on the 5th July, 2017, sets out the reasons for its opposition to
the within application and the specific prejudice arising for the first named respondent
should the proceedings advance further. She avers that having conducted a preliminary
review of possible witnesses that would be available to give oral evidence, it is apparent
that at least two material witnesses are now deceased, a number are retired and would
therefore be unavailable and a number are untraceable. In circumstances where the
proceedings commenced in 2000, it is contended that recollections of events and ability to
give oral evidence will be severely compromised at this remove.
22. A.B. further avers that the applicant disengaged with the services of the first named
respondent in May 2004 following her discharge from James Connolly Memorial Hospital
against medical advice. The first named respondent was not made aware of any ongoing
difficulties the applicant may have had as set out in the medical reports exhibited in Mr. Ó
Murchú’s affidavit and no material representations were made by the applicant or her
solicitor in relation to these proceedings from 2005 until 2017 when the motion issued. It
is contended that the first named respondent will be at an evidential deficit in that no
contemporaneous reports exist on its behalf.
23. In summary, the position advanced on behalf of the first named respondent is that the
delay in the within proceedings is both inordinate and inexcusable in circumstances where
the applicant’s own delay operates from the date the proceedings were adjourned
generally with liberty to apply in July 2002, being a delay of approximately 15 years
before any further steps were taken in the proceedings. The first named respondent
posits that it is severely prejudiced in mounting an adequate defence to the claim for
damages due to the passage of time.
The position of the second, third, fourth and fifth respondents (the State Parties)
24. The State Parties to the proceedings put in a Statement of Opposition on 14th June,
2000. The former Northern Area Health Board, originally the first named respondent filed
opposition papers on the 25th June, 2000 but the said party was substituted by order
dated 22nd May, 2006.
25. The State Parties oppose the within application on the grounds of delay. The principal
arguments set out in a number of affidavits, filed on behalf of the State Parties, can be
summarised as follows: -
(a) The parties contend that there is insufficient and inadequate explanation provided
by the applicant for the extraordinary delay in progressing the within proceedings.
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(b) A core material witness from the Department of Education is now deceased, thus
causing prejudice in defending the proceedings.
(c) The parties have been further prejudiced in circumstances where in the ordinary
way, were a claim for damages being pursued in a timely manner, it would have
been open to them to seek to have the applicant medically/psychiatrically examined
for the purposes of such litigation. It is contended that this can no longer be done
at a time proximate to the events complained of.
(d) Despite extensive searches of records and archive records held by the parties, it is
apparent that at this remove of time the State Parties face insurmountable
difficulties in this regard. In particular, the relevant period pre-dates the
digitisation of records, occurred before the re-organisation of the various
Departments of State and indeed the establishment of various bodies providing the
relevant services to young people.
(e) It is further contended that at this remove of time memories of any available
witnesses who might be identified would be greatly diminished and unreliable.
The Child and Family Agency’s Position
26. By way of preliminary objection, the Child and Family Agency contends that it is a
stranger to the matters complained of in the within proceedings, having only been
established in 2014. Its predecessor in title was substituted as a party to the proceedings
by order of the court dated 22nd May, 2006, and at the time the proceedings appear to
have been struck out.
27. Again similar arguments are proffered on its behalf in relation to the delay issue
particularly having regard to the fact that it is almost fifteen years since the applicant’s
last involvement in the case and in circumstances where she had the benefit of legal
advice throughout.
28. Further, it relies on the medical report of Dr. Paul McQuaid, dated 17th December, 2014
wherein he was specifically instructed by the applicant’s solicitor to provide an opinion in
relation to the applicant’s capacity. Dr. McQuaid reported that “Noelle had the capacity
and fitness to instruct and maintain High Court Proceedings from the period of her 16th
birthday, being the 9th August, 2000 to the present”. It is submitted that this negates
the assertion made by Mr. Ó Murchú that the applicant had been unable to progress her
claim due to her inability to manage her affairs.
29. The Child and Family Agency maintains that it is severely prejudiced by the delay on the
part of the applicant in prosecuting her proceedings in a timely fashion.
Application to Re-Enter
30. The within application comes before this Court in somewhat unusual circumstances
wherein the proceedings were adjourned generally with liberty to re-enter at the behest
of the applicant in July 2002, but thereafter were formally struck out in circumstances
where the applicant claims she had not been served with the application that precipitated
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that order. However, there is no dispute but that Mr. Ó Murchú became aware that the
proceedings had been struck out in December, 2013 and indeed it is likely that this
precipitated the request to Dr. McQuaid to provide an opinion as to the applicant’s
capacity to maintain the within proceedings.
31. In any event, the application now is to re-enter the proceedings on behalf of the applicant
and each of the respondents is objecting on the grounds of delay. In the normal course,
the issue of delay in prosecuting proceedings is considered in the context of an application
by one of the respondents to strike out the proceedings. It is contended on behalf of the
applicant that this is the appropriate course to be adopted with any such application being
brought at the close of the pleadings herein. Further it is submitted that any such
application should be brought at the close of the pleadings herein.
32. That submission does not find favour with this Court in circumstances where it is clear
that the Court must have regard to the prolonged period of time that has elapsed since
the applicant’s last participation in these proceedings in July, 2002 and February, 2017
when the motion herein issued, i.e., a delay of almost 15 years, in considering the within
application.
33. There is an onus on an applicant to re-enter proceedings in a timely fashion to ensure the
fair and proper administration of justice.
Delay
34. There is no dispute between the parties in relation to the relevant principles applicable to
the delay argument which have emerged from two different strands of jurisprudence.
In Rainsford v. Limerick Corporation [1995] 2 ILRM 561, Finlay P. set out the following
principles: -
“(1) Inquiry should be made as to whether the delay on the part of the person seeking
to proceed has been ‘inordinate’ and ‘inexcusable’.
(2) Even where the delay has been inordinate and inexcusable, the court must exercise
its discretion to decide whether the balance of justice is in favour or against the
case proceeding.
(3) Where a party must to an extent be vicariously liable for the inactivity of his/her
solicitor, the litigant’s personal blameworthiness is material to the exercise of the
court’s discretion.”
35. The Rainsford’s principles were approved and expanded upon by the Supreme Court in
Primor Plc. v. Stokes Kennedy Crowley [1996] 2 IR 459, Hamilton C.J., having reviewed
the relevant authorities, summarised the principles to be applied 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;
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(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 and procedures,
(ii) whether the delay and 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,
(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 expense 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 in (vi) may arise in
many ways and be other than that merely caused by the delay, including
damage to a defendant’s reputation and business.
36. The Primor principles have been affirmed and endorsed in numerous decisions. In
applying the principles, the court must first decide if there has been inordinate and
inexcusable delay on the part of the plaintiff in prosecuting their action. It is only if the
court so finds that it is required to decide whether the balance of justice rests in favour of
dismissing the case or in allowing it to proceed. In determining this issue, the court must
carry out a balancing exercise based on a consideration of all of the relevant
circumstances having regard to the facts of the case. Prejudice and unfairness to the
defendant or the substantial risk that it is not possible to have a fair trial, are amongst
the factors identified in Primor to which the court must have consideration.
Element of Inordinate Delay
37. Clearly this Court’s first consideration under the Primor principles is whether there has
been inordinate delay by the plaintiff in the prosecution of proceedings. In the instant
case, there can be no dispute but that a delay of over fifteen years from when the
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proceedings were adjourned generally with liberty to re-enter is undoubtedly inordinate.
Indeed, there appears to be little dispute between the parties on this issue.
Element of Inexcusable Delay
38. In the present case, it is submitted that the delay was excusable in light of the
circumstances advanced on the plaintiff’s behalf, specifically her health difficulties.
However, it is clear from the medical reports exhibited on the plaintiff’s behalf that she
had got on with her life during the period of the delay. It is notable that during this
period she married, gave birth to her second child and subsequently had to deal with the
breakdown of her marital relationship. Dr. McQuaid, in his report dated 17th December,
2014, opines that she was capacious at all material times.
39. Further, the court is mindful of the fact that the applicant has at all times had the benefit
of legal advice in circumstances where Mr. Ó Murchú has been her solicitor throughout
this period.
40. These factors weigh heavily on this Court’s considerations in determining that no
reasonable or plausible explanation has been forthcoming by the applicant or her legal
advisors which could account for or excuse the extensive delay in the within proceedings.
Balance of Justice
41. This test is comprehensively outlined in Primor wherein Hamilton C.J. set out the matters
for consideration by the court in exercising its judgment on whether, in its discretion, on
the facts the balance of justice is in favour or against allowing the case to proceed. When
considering this issue the court is obliged to carry out a balancing exercise taking account
of all the relevant circumstances and in particular the factors identified in Primor.
42. In the instant case, the respondents have set out on affidavit the specific prejudice that
arises consequent upon the delay in the within proceedings as follows: -
(a) A number of material witnesses are now deceased, others are retired or
untraceable.
(b) Witness testimony will be severely compromised with the passage of time.
(c) The respondents have been denied the opportunity to obtain contemporaneous
medical reports and are at an evidential deficit in that regard.
(d) Further evidential difficulties arise due to loss of records in circumstances where the
relevant period predates the digitisation of records.
43. In considering the foregoing, the court is satisfied that the extent of the delay has been
such that it is not possible to have a fair trial and where the balance of justice is against
the case proceeding. It is simply inconceivable that the respondents would be in a
position to properly defend the within proceedings having regard to the foregoing.
44. The onus rests on a litigant to prosecute their proceedings consistent with the proper
administration of justice. In the instant case, there is no doubt that the applicant
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suffered health difficulties over the relevant period but this does not absolve the applicant
of her responsibility to progress her proceedings. Indeed, it is clear that the applicant’s
solicitor continued to arrange for Medico-Legal assessments and reports over the years
without taking any steps to ensure that the proceedings were progressed.
45. It was submitted on behalf of the applicant that the court is obliged to consider the
absence of an application to dismiss the claim for want of prosecution. It is difficult to
see how such an application could have been progressed in circumstances where the
proceedings had already been struck out. Further, it is notable that the Child and Family
Agency was not a party to the proceedings during that period. In all the circumstances,
the court is satisfied that the delay in this case is entirely attributable to the actions or
inactions on the part of the applicant herein.
The O’Domhnaill Principles
46. The second strand of jurisprudence emerged in O’Domhnaill v. Merrick, [1984] IR 151,
whereby the court, in determining whether or not to dismiss a claim on the grounds of
delay, is not required to find the plaintiff guilty of inordinate and inexcusable delay but
merely must be satisfied that it is in the interests of justice to dismiss the case because
the delay has resulted in a real risk that it will not be possible to have a fair trial and
where the interests of justice require it.
47. Henchey J. in O’Domhnaill summarised the task for the court as follows: -
“In all cases, the problem of the court would seem to be to strike a balance
between a plaintiff’s need to carry on his or her delayed claim against a defendant
and the defendant’s basic right not to be subjected to a claim which he or she could
not reasonably be expected to defend.”
48. In applying these principles to the facts of the instant case, the court is obliged to take
account of the psychological and psychiatric difficulties which the applicant undoubtedly
encountered over the relevant period and her desire now to proceed with her claim for
damages against the respondents.
49. However, the court must also have regard to the inevitable prejudice that would flow from
allowing the case to proceed as already referred to above and the insurmountable
difficulties for the respondents in that regard.
50. This Court is satisfied that the prejudice to the respondents is such that it firmly tips the
balance in favour of refusing the application herein to re-enter the proceedings.
Conclusion
51. This is a difficult case in which the applicant maintains that the respondents failed to
ensure that an appropriate placement was provided for her during her time in care over
nineteen years ago.
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52. The applicant is now aged 35 and many of the original reliefs sought by her are no longer
relevant. The only outstanding issue is the claim for damages arising from events which
occurred as far back as 2000.
53. This Court is mindful of the significant consequences which flow from its refusal to re-
enter the within proceedings from the applicant’s perspective. However, the court is
obliged to apply the very clear principles which have emerged from the jurisprudence in
dealing with the delay issue so as to ensure the fair and effective administration of
justice. These require that a litigant must prosecute their proceedings in a timely fashion
such that a defendant will not be unduly prejudiced by inordinate or inexcusable delay.
The court is obliged to ensure that proceedings are conducted in a manner which will
ensure the fair and proper administration of justice.
54. In the present case, the applicant has been guilty of inordinate and inexcusable delay in
the manner in which she has pursued her claim and her failure in this regard has resulted
in serious prejudice to the respondents in terms of their ability to defend the claim, such
that the balance of justice favours the refusal of the relief sought.
55. In applying the principles in O’Domhnaill, I am satisfied that the same outcome is
warranted.
56. In the circumstances, the application to re-enter is refused.
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