The High Court has refused a Belgian hospital’s application to dismiss a medical negligence claim over delay, finding that the hospital had not shown specific prejudice sufficient to justify ending the proceedings.
Mr Justice Bolger delivered the decision on 17 June 2022. The plaintiff claims damages arising from a medical procedure at the hospital on 6 March 2007. The judgment does not determine whether negligence occurred or resolve the underlying claim.
The hospital sought dismissal for inordinate and inexcusable delay, or alternatively for want of prosecution. It accepted that delay up to October 2015 arose from complex jurisdictional issues. The periods it relied on began after that point and included time between October 2015 and October 2017, and between September 2019 and its December 2020 application.
The plaintiff attributed some delay to waiting for the hospital’s replies to particulars and cited the pandemic’s impact on personal injury hearings after lockdown began in March 2020. The judge said the first period was not well excused, but found the pandemic a reasonable explanation for the later period. Overall, she concluded the delay was not quite serious enough to be described as inordinate. She nevertheless considered whether dismissal would be justified if that assessment were wrong.
The hospital argued that the case would require oral evidence about how the contract for the procedure was formed, and that delay risked diminished recollection and reputational damage. It acknowledged that any prejudice was moderate. The judge found it had not identified unavailable witnesses, impaired recollections or other specific evidential difficulties. She also noted that the hospital had an affidavit from a doctor, sworn in 2012, describing the circumstances in which he said the contract was made. Medical records would be important to issues in the case.
The judge said it was not appropriate to speculate about how long the case would take to prepare for hearing. She noted that the plaintiff said he had engaged a Belgian expert and that further work remained, including discovery and updated medical evidence. She said the hospital could bring a further delay application if later circumstances supported one.
The application to dismiss was refused. The judge gave an indicative view that the plaintiff should receive the costs of the motion, but said she would hear any further submissions before making final costs orders. The matter was to return on 5 July 2022.