The Court of Appeal has dismissed a firm of solicitors’ appeal against a High Court decision refusing to dismiss a former client’s professional negligence claim for delay.
The case concerns a personal injuries claim arising from a road traffic accident in November 2003. John Padden alleged that he was a passenger in a stationary car that was struck from behind by a car driven by David Heffernan, and that he was injured. The solicitors issued a civil bill against Heffernan in 2004, but it was not served and expired in July 2005.
Padden later sued his former solicitors, alleging negligence for allowing the original proceedings to become statute barred. The solicitors sought dismissal on grounds including inordinate and inexcusable delay, prejudice, and abuse of process. The High Court found post-commencement delay that was both inordinate and inexcusable, but refused to dismiss the claim because it was not satisfied that the solicitors had established sufficient prejudice.
In an ex tempore judgment delivered on 31 July 2024, Mr Justice Noonan said the appeal turned on the balance of justice, because Padden had not appealed the High Court’s finding on delay. He explained that delay before proceedings begin is generally governed by limitation rules, while a late start may affect whether later delay is excusable.
The solicitors relied in part on the alleged unavailability of Garda witnesses and medical evidence. The Court of Appeal held that the solicitors had known of the potential negligence claim well before it was issued in 2012, yet first contacted Garda authorities about witnesses in November 2022, after bringing their dismissal motion. The judgment said it was unclear whether those witnesses were relevant and that the solicitors could not credibly attribute resulting prejudice to Padden’s delay.
The court also noted that the solicitors had represented Padden from 2003 to 2010 without seeking a medical report. It found that any prejudice arising from the absence of medical records was of their own making. The court further considered the solicitors’ inactivity in the litigation and their failure to use available procedures to address complaints about the claim’s progress or detail.
The court concluded that the solicitors had fallen well short of establishing prejudice warranting dismissal and dismissed the appeal. No final costs order was made in the judgment: the court’s provisional view was that the solicitors should pay the costs, and it allowed each side 14 days to make written submissions if they wished to contest that view.