The Court of Appeal has dismissed a woman’s appeal against the High Court’s decision to dismiss her clinical negligence claim for delay. It held that the delay was inordinate and inexcusable and that the balance of justice strongly favoured dismissal.
The plaintiff alleged that recurring infections and pain in her right leg between November 2011 and November 2013 were caused by a staple left in her leg after childhood surgery. She said removal of the staple at St. James’s Hospital on 3 November 2013 alleviated her condition. The summons, issued in December 2015, alleged that the hospital had failed to identify and remove the staple earlier. The Court of Appeal noted that no expert report supporting the allegations had been obtained by the High Court hearing in July 2023.
The court described the summons as lacking basic details, including when the original surgery took place and when, where and by whom the alleged negligence occurred. It also recorded that the initially named defendant was said by the hospital’s side to be the wrong defendant; the title was amended in 2018. The defendant’s 2018 request for particulars and further information went unanswered.
The High Court dismissed the claim in July 2023 after finding the delay both inordinate and inexcusable. It considered that the lack of an expert report and the unparticularised claim impaired the defendant’s ability to investigate, and that the passage of time risked degrading memories. The plaintiff appealed, arguing that the defendant had not established sufficient prejudice.
The Court of Appeal agreed with the High Court’s finding on delay. It said responsibility for the failure to obtain an expert report could not be determined from the evidence, but that this did not alter its conclusion. It also rejected the appeal’s prejudice argument, observing that the defendant could not demonstrate the full effect of delay without knowing the case it had to meet. The court considered that the proceedings had been continued for about eight years without an evidential basis and that this itself prejudiced the defendant.
The appeal court did not agree with the High Court’s separate conclusion that a fair trial was no longer possible: without knowing the plaintiff’s case, it said, that assessment could not be made. That difference did not affect the result. The Court of Appeal dismissed the appeal, with Costello and Pilkington JJ agreeing with Noonan J.