The High Court has refused Donegal County Council’s application to strike out a woman’s personal injury claim over an alleged trip and fall in Letterkenny, finding that although her delay was inordinate and inexcusable, the council had not established even moderate prejudice.
The proceedings concern an alleged fall on 18 February 2014. The plaintiff, Rose Toye, claims she tripped on a defective manhole cover protruding above the footpath on Long Lane, Letterkenny. The council denies responsibility for the manhole. The other defendants are the Electricity Supply Board and Eircom Limited.
The council applied in September 2022 to strike out the claim against it for delay and want of prosecution. The plaintiff conceded that the delay was inordinate. The court also found it inexcusable, holding that she could have used court procedures to address outstanding defences, discovery and verification, and that the pandemic did not prevent such steps through the common law motions list. The court said there was no evidence of attempts to obtain an updated medical report remotely.
The judge then considered whether the balance of justice favoured ending the claim against the council. The council relied on an affidavit saying people involved with the relevant location were no longer employed by it or had moved offices, that memories fade, and that personnel were no longer available.
The court found that evidence “very weak”. The council had not identified the potential witnesses, their roles, what evidence they could give, or why they were unavailable. The judge said the council’s defence was that it had nothing to do with the manhole and held that evidence on that issue appeared likely to concern documents, rather than memories of the 2014 incident.
The court concluded that the council had not shown even moderate prejudice from the delay. Given the serious setback striking out the claim would cause the plaintiff, the balance of justice favoured refusing the application.
The court refused the relief sought in the council’s motion. This ruling concerns only the council’s application to strike out the claim against it; it does not determine the underlying injury claim.