THE SUPREME COURT
190/2000
Denham J.
Murray J.
McGuinness J.

BETWEEN:
JAMES BRENNAN
PLAINTIFF / APPELLANT
And

NOEL FITZPATRICK,
GALVIA HOSPITAL LIMITED 

And

COMMUNITY HOSPITALS (IRELAND) LIMITED
DEFENDANTS

Judgment of the Hon. Mrs. Justice Denham delivered on the 23rd day of November, 2001.

This is an appeal by James Brennan the plaintiff/appellant, hereinafter referred to as the plaintiff, against an order of the High Court (Johnson J.) dismissing his claim for want of prosecution. The plaintiff has also brought a motion for liberty (i) to adduce fresh evidence and evidence in substitution for that already given, and (ii) to amend the notice of appeal.

The first matter for consideration is the appeal of the plaintiff from the order of the High Court that the plaintiffs claim do stand dismissed for want of prosecution for failure to serve a new Notice of Trial after it had been struck out on the 4th day of December, 1998.

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High Court Action

The plaintiff served a plenary summons on 16th June, 1989 making a claim against the defendants in relation to events which occurred in June, 1986. On the 28th November, 1990 the Statement of Claim was delivered by the solicitors acting for the plaintiff It was pleaded in the Statement of Claim:

“2.	On or about the month of June 1986 the Plaintiff entered the First Named Defendants Hospital as an In-patient, for investigations regarding the Plaintiffs complaints of nocturia, frequency and an altered bowel habit. The aforesaid investigations were to consist of a colonoscopy, cystoscopy and bladder distention (sic) under anaesthetic. On recovery from the anaesthetic the Plaintiff had severe pain in his bladder area together with acute urinary retention after the cystoscopy.

3.	In breach of their duty to the Plaintiff the Defendants their servants or agents negligently failed and/or refused and/or neglected to treat the Plaintiff for his complaints as a result whereof the Plaintiff suffered and endured much pain and suffering and sustained loss and damage.”

The particulars of negligence and breach of duty pleaded were:

“(a) Failed to observe or to heed or to take any reasonable steps to investigate the complaints of the Plaintiff as to his condition.

(b)	Failed to pass a urinary catheter either in time or at all to alleviate his discomfort and pain and especially after twenty hours had passed with no urination.

(c)	Failed to palpate or check his bladder either in time or at all.

(d)	Failed to diagnose that he was suffering from acute urinary retention.

(e)	Attempted to have the Plaintiff void spontaneously without catheterisation.

4.	By reason of the matters aforesaid the Plaintiff suffered severe pain, personal injuries and suffered loss and damage.”

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The particulars of injuries claimed were:

Particulars

The plaintiff was in acute pain for the period, post investigation, while in hospital. He left Galvia Hospital and two and a half hours later was admitted to Sligo General Hospital where he received emergency treatment and on admission the following day was treated for his bladder complaint by way of catheterisation over a period of four days. Whilst in Galvia Hospital he had been in severe pain, was nauseated and weak. He had to spend four days in hospital in Sligo. His convalescence was delayed and he suffered more pain and trauma than he would otherwise have done. The onset of further sequelae cannot be ruled out.”

No particulars as to further sequelae have been pleaded.

A motion for particulars raised by the defendants was responded to in 1992 after a motion by the defendants. The defence on behalf of all the defendants was filed on the 8th March, 1996. During 1992 to 1996 there was considerable correspondence between the solicitor for the plaintiff and the solicitor for the defendants. In May, 1996 the Notice of Trial was served. The plaintiff did not take steps to have it set down for trial. In December 1998 the Notice of Trial was struck out. No new Notice of Trial has been served.

Legal Representation

Initially the plaintiff was represented, until February 1998, by Messrs. Foley & Mullery, Solicitors. There was then a gap in legal representation. From the 14th July, 1999 the plaintiff was represented by Damien M,P. Tansey. However, on this appeal the plaintiff was a lay litigant.

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Motion to Dismiss for Want of Prosecution

The defendants brought a motion to dismiss for want of prosecution and grounded it on the affidavit of Catriona O’Mara, solicitor in the firm of solicitors Arthur Cox who are the solicitors on record for the three defendants. Catriona O’Mara deposed:

“3.	As appears from the Plaintiffs Statement of Claim, this is a medical negligence action. In it, the Plaintiff claims that in the month of June, 1986 he was referred to Galvia Hospital under the care of the First Named Defendant for the purposes of undergoing colonoscopy, cystoscopy and bladder distension under anaesthetic.

4.	Furthermore, he alleges that after undergoing the aforesaid procedures he had severe pain in his bladder. The Plaintiff alleges that the Defendants were negligent in failing to heed or investigate his complaints and that they failed to pass a urinary catheter in time or at all to alleviate his discomfort. In particular he states that he suffered acute pain and that two and a half hours after he left Galvia Hospital on the 20th June, 1986 he was admitted to Sligo General Hospital where he received emergency treatment by way of catheterisation over a period of four days.

5.	The Defendants have filed a full Defence and whilst there is no doubt that the Plaintiff was complaining the Defendants contend that there is no foundation for his allegation that his complaints were either ignored or not properly investigated. In fact, as the Plaintiff is or ought to be aware, he was seen by the First Named Defendant and others on a number of occasions and when the First Named Defendant recatheterised him, he found only a relatively small amount of urine in his bladder.

6.	The proceedings issued out of the office of this Honourable Court in 1989 but Notice of Trial was not served until the month of May, 1996. Thereafter the Plaintiff appears to have discharged his original solicitors and took over carriage of the proceedings himself in the month of February, 1998. In the month of July, 1999 or thereabouts he appointed Damien Tansey & Company, Solicitors to act on his behalf Indeed, Messrs. Damien Tansey & Company Solicitors served a Notice of Change of Solicitor and Notice of Intention to Proceed in the month of July, 1999. In this regard I beg to refer to a true copy of the said Notice of Change of Solicitor and Notice of Intention to Proceed which I have pinned together and upon which marked with the letter “A” I have endorsed my name thereon prior to swearing hereof.

7.	However, no further step has been taken by the Plaintiff or his new firm of solicitors. Furthermore the Plaintiffs Notice of Trial was struck out on the 4th December, 1998 and no new Notice of Trial has been served.

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8.	The Defendants are most anxious to bring some finality to bear upon this case. The complaint the subject matter of this suit relates to events which took place over thirteen and a half years ago and mere existence of this action against professional people causes them considerable distress.

9.	I would respectfully submit to this Honourable Court that the Plaintiff has been guilty of inordinate and inexcusable delay in the prosecution of this claim and that in the absence of any good reason for the delay the Plaintiffs claim ought to be dismissed for want of prosecution.”

The reply on behalf of the plaintiff was by way of affidavit sworn by Damien M.P. Tansey, Solicitor. He deposed:

"3.	I say that Ms. O’Mara is correct when she indicates that Notice of Trial was served in or about May 1996, and that the matter did not progress between May of 1996 and July of 1999. However it would equally appear that during that period no steps were taken by the defendant to deal with the mailer and they in fact participated in this delay. From a review of the file I am unaware of any motion brought by the defendant during that period.

4.	The position is that this firm was approached by the plaintiff in or about July of 1999 to advise him in relation to this case and to act on his behalf We immediately engaged on a review of the file, which was relatively substantial at this stage.

5.	On a review of the file it was decided to seek a further medical opinion from Mr. David Ralph a distinguished Consultant Urologist based in the United Kingdom. A request was made for this report in or about the month of February 1999. As yet we have not received the report from Mr. Ralph, but we expect to have it shortly.

6.	I therefore say that Ms O’Mara is incorrect in paragraph 7 of her affidavit to state that no step has been taken by my firm as the plaintiffs new firm of solicitors. Rather we are trying at all speed to assemble an appropriate medical opinion so that we can properly advise the plaintiff, prior to the service of a new Notice of Trial. In addition I would say that while there has been overall delay in relation to this case, the Notice of Motion was issued only some six months after this firm had become involved, and we should be allowed an opportunity to get in this information so as to properly advise the plaintiff in relation to the case.

7.	In all of the circumstances I therefore pray this honourable Court for an order reftising to grant the relief sought in the defendants’ motion.”

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The report of the High Court (Johnson J.) judgment states:

“This case coming on before me on 20th March, 2000 having heard the Counsel on both parties and having read the Affidavits I came to the conclusion that there had been unreasonable and inordinate delay on behalf of the Plaintiff in bringing this case forward and therefore exercise (sic) my discretion and struck out the case for want of prosecution. There is nothing further I can add to the matter.”

Against that judgment the plaintiff now appeals. The plaintiff grounds his appeal on the following matters:

“The plaintiff received a letter from his solicitor in February 2000 telling him that an application by the Defendants to strike out the claim would be heard on 6th March, 2000 and he was not informed then or in a subsequent consultation with his solicitor on the 2nd March, 2000 of the Order that was sought against him namely to dismiss the Plaintiff’s claim for want of prosecution and in particular he was not informed that an Order sought was to dismiss the plaintiffs claim for want of prosecution for failure to serve a new Notice of Trial after same was struck out on 4th December, 1998, he did not know of the striking out of the Notice of Trial in December, 1998 and he did not have knowledge of the content of the affidavits of Catriona O’Mara filed on the 14th February, 2000 and of Damien M P Tansey filed on the 6th March, 2000 and that therefore the Plaintiff had not the opportunity to defend against the Order that was sought and was given.”

The plaintiff also relied on the following:

“1(a) That the following was not before the learned judge:

The efforts of the Plaintiff in correspondence with solicitors for the Defendants to progress the case in raising matters regarding the records and discovery, and the response he received and that it was the Plaintiffs position that discovery had not been met and that the Defendants had said they were going to set the case down for trial and had taken steps to do that but did not proceed.

2(a) That a bacteriology report dated 18th June, 1986 disclosed on discovery and produced by the Defendants is not an authentic document as it does not relate to the Plaintiff though it bears his hospital no. and that the Defendants did not make full and complete discovery of any pathology reports.

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(b) That the Second Defendants did not disclose the date of destruction of the original records and that the microfilm disclosed on discovery cannot be relied on.

(c) That there was not full and complete, or any, discovery of “nursing notes” in that the information therein is only available without warranty.

(d) That the recent transcript of the bacteriology report provided to the Plaintiff is wrong.

(3) That if evidence herein was before the Court it would likely have had an effect on the outcome.

(4) That the inclusion of the bacteriology(sic)report in the “medical records” and the version appearing as “sputum” and the letter maintaining that the bacteriology report did relate to the Plaintiff, and the transcript of the bacteriology report provided by the Defendants was severally and jointly to conceal that there was non disclosure of other report(s); and that the non disclosure of the other report(s) hindered and obstructed the Plaintiffs case.

(5) That the Plaintiff has an arguable case on the merits.”

The plaintiff has appealed against the order of the High Court of 20th March on the grounds:

“1. The Plaintiff did not have an opportunity to defend with knowledge of the Order sought against him; and that the Plaintiff does not have knowledge of the content of the affidavits of Damien M P Tansey filed on the 6th day of March, 2000 and of the affidavit of Catriona O’Mara filed on the 6th day of March, 2000nd.

2. The defendants did not make full and complete discovery and a document released was not authentic.

3. That on merit the Plaintiff has a case.”

Law

The law in relation to an application to dismiss proceedings for want of prosecution is well settled. It was restated comprehensively in Primor plc v. Stokes Kennedy Crowley [1996]

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2 IR 459. The head note of that judgment sets out the principles of law relevant to an application to dismiss an action for want of prosecution:

“(1)	that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests ofjustice so required;

(2)	that the party who sought the dismissal on the ground of delay in the prosecution of the action must establish that the delay had been inordinate and inexcusable;

(3)	that even where the delay had been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance ofjustice was in favour of or against the case proceeding;

(4)	that when considering this obligation the court was entitled to take into consideration and have regard to -
a)	the implied constitutional principles of basic fairness of procedures,
b)	whether the delay and consequent prejudice in the special facts of the case were such that it made it unfair to the defendant to allow the action to proceed and made it just to strike out the action,
c)	any delay on the part of the defendant, because litigation was a two party operation and the conduct of both parties should be looked at,
d)	whether any delay or conduct of the defendant amounted to acquiescence on the part of the defendant in the plaintiff’s delay,
e)	the fact that conduct by the defendant which induced the plaintiff to incur further expense in pursuing the action did not, in law, constitute an absolute bar preventing the defendant from obtaining a dismissal but was a relevant factor to be taken into account by the court in exercising its discretion whether or not to dismiss, the weight to be attached to such conduct depending on all the circumstances of the particular case,
f)	whether the delay had given rise to a substantial risk that it was not possible to have a fair trial or it was likely to cause or had caused serious prejudice to the defendant,
g)	the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.”

Decision

The plaintiff is a lay litigant in this appeal. He has been represented, however, by two firms of solicitors earlier in these proceedings. The issue for decision is whether the High Court erred in the exercise of its discretion in dismissing the claim for want of prosecution.

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There is no doubt but that there has been inordinate delay in this case. The question to be determined is whether it is inexcusable. The main excuse given before the High Court was that a medical report was being awaited from a consultant in the United Kingdom. However, obviously there had been a medical opinion obtained when these proceedings were launched. Moreover the plaintiffs then solicitor served Notice of Trial in May, 1996 and the medical report in question was not sought until February, 1999 and had still not been obtained at the time of the swearing of the affidavit on March 2nd, 2000 by the plaintiffs solicitor, Mr. Tansey. Thus the matter of seeking an additional medical report was not sufficient excuse in the circumstances for the delay in obtaining a second Notice of Trial.

The plaintiff also complained about the documents furnished on discovery, The defendants submit that they have made full discovery. A problem on discovery could have been dealt with by either of the solicitors for the plaintiff Such a submission in the circumstances of this case is not adequate to resist the motion.

The plaintiff submitted that he did not know of the actual orders that were being sought or of the affidavits filed on behalf of himself and on behalf of the defendants. This submission relates to a time when the plaintiff had legal representation. He was represented by his solicitor in the matter. Thus this is also not an appropriate excuse for the delay.

The plaintiff has advanced no reasonable reason as to why the High Court exercised its discretion incorrectly. On the facts of this case as set out in the pleadings herein it is clear that there was inordinate delay which was inexcusable. The inordinate delay has given rise to a substantial risk that it is not possible to have a fair trial and the delay is likely to have 

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caused serious prejudice to the defendants. On balance the justice of the situation was in favour of dismissing the proceedings. Consequently I am satisfied that the High Court did not err in the exercise of its discretion.

On the 14th November, 2001 by motion the plaintiff sought that further facts and information be put before the courts. In the circumstances it is unnecessary to proceed to consider this motion. However, I have read carefully all the papers filed by the plaintiff and am satisfied that there is no requirement in justice that this motion proceed.

Today, the 23rd November, 2001, the plaintiff has sought to bring by motion a submission additional to his written submissions at the hearing on 14th November and also to exhibit a document. He sought to bring to the attention of the court a matter arising from the hearing of the appeal. The plaintiff has deposed that at the hearing he was given every opportunity to fully present his case, but pleaded that he lacked experience and he sought to make the new application. The plaintiff referred to his earlier reference that the solicitors for the defendants had said that they were going to bring the case to trial. He referred to a letter of 21st October, 1997 from Arthur Cox to the plaintiffs then solicitors, Foley and Mullery. That letter states:

“Our clients are anxious that this matter would be disposed of without further delay and we will, as previously mentioned, be applying for a date for hearing early in the New Year.

There are four Orders for costs outstanding as against the Plainitiff, (sic) your client James Brennan. We enclose herewith copy of these Orders dated the 29th of November 1990 (2), the 12th October 1992 and the 22nd of March 1993.

With respect, your client’s claim appears to be without merit and our instructions are to fully defend the claim. At the end of the hearing, if successful as we anticipate, we will be seeking an Order for the full costs of the proceedings as against Mr. Brennan.”

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However, this letter was prior to first Notice of Trial being struck out on the 4th day of December, 1998. Thus it is not a factor which excuses the delay. The plaintiff has also referred to a Book of Inter Party Correspondence referred to by the defendants’ solicitor and stated that he did not know what it contained. However, while these were given to him they were not before the court. Finally, the plaintiff referred to two motions to dismiss for want of prosecution which occurred when the defendants were represented separately by two firms of solicitors which arose in 1990 and which were struck out with costs awarded against him, He stated that he did not previously make a submission on estoppel on the dismiss for want of prosecution orders arising in 1990. I am satisfied that in relation to this matter the concept of estoppel does not apply. As to the argument in relation to the previous motions to dismiss for want of prosecution: it is merely necessary to point out that over a decade has elapsed since these orders were made, in circumstances where no reasonable excuse has been afforded for the delay. Thus while the court in the exercise of its discretion, decided in exeptional circumstances to hear the motion today, none of the matters submitted by the plaintiff excuse the inordinate delay.

Conclusion

I would not interfere with the exercise of discretion by the High Court. It was within the parameters of the law. Also, on balance the justice of the situation is met by the order made by the High Court. There was inordinate and inexcusable delay so as to undermine a fair trial. For the reasons given herein I would dismiss the appeal.