The Court of Appeal has refused an appeal by Paul Gallagher and affirmed the High Court’s dismissal of his proceedings against the Health Service Executive North West Area for want of prosecution. The appeal concerned the order made on 5 July 2017; the Court of Appeal delivered judgment on 5 June 2019.
The claim arose from events surrounding Mr Gallagher’s birth in December 1986. He alleged that the defendants negligently failed to monitor the foetal heartbeat, intervene by caesarean section and properly resuscitate him. These were allegations, not findings on the underlying medical care. The Court of Appeal did not decide whether negligence occurred.
The personal injury summons was issued in March 2007, one day before the limitation period was due to expire. The appeal judgment records that the family had consulted a solicitor in 1998 and obtained preliminary expert advice in 2001, but no reason was given for waiting until 2007 to issue proceedings. The case then advanced slowly: the HSE area sought particulars in 2010, obtained a consent order requiring replies in 2013, and moved to dismiss the proceedings in 2014. Replies to particulars were delivered that October.
The High Court excluded the period when the parties were exploring mediation from its delay calculation. It found eight years and seven months of relevant delay, and in March 2017 gave Mr Gallagher three months to assemble expert evidence and provide full particulars of the injury, alleged negligence and loss. When the case returned in July, the court found that the material supplied remained too general and dismissed the proceedings against the HSE area. The High Court later dismissed proceedings against the fourth defendant as well; that separate order was not the appeal before the Court of Appeal.
On appeal, the court accepted that the family’s lack of funds made the delay understandable, but held that it did not excuse it. It also found the HSE area had contributed to some delay, including a period of acquiescence, but that this did not outweigh the other circumstances. The court concluded that the case remained far from ready for trial and that the passage of time had prejudiced the defence, including because key witnesses had died or could no longer be expected to recall events meaningfully.
The Court of Appeal rejected the request for an “unless order”, reasoning that the necessary steps to prepare the case were not clearly identifiable and depended on further expert work. It held that allowing the case to continue would jeopardise a fair trial, refused the appeal and affirmed the High Court’s order. Its decision resolved the appeal on delay and fairness grounds, not the merits of the birth injury allegations.