The High Court has refused an application by barrister John Fahy to dismiss Gemma Ní Chionnaith’s professional negligence claim against him and the National Union of Journalists (NUJ) because of delay. The underlying allegations have not been determined.
Ní Chionnaith alleges Fahy gave negligent advice about her employment rights after RTÉ ended her employment in December 2009. She says he advised that she had acquired a right to a contract of indefinite duration but did not advise her to pursue a claim under the Protection of Employees (Fixed Term Work) Act 2003. She also alleges the NUJ represented her in an unsuccessful unfair dismissal claim. These are claims in the proceedings, not findings in this judgment.
The claim against Fahy was issued in November 2013. He applied in March 2021 to have it dismissed for inordinate and inexcusable delay. Justice Siobhán Phelan found no culpable delay before the proceedings began, or during the period from 2014 to 2017, when steps were taken to exchange particulars and obtain files. However, she found the period from April 2017 to November 2020, when no active step was taken between the parties, was inordinate and inexcusable. The explanations offered, including the replacement of a vocational assessor, the solicitor’s change of practice and the pandemic, did not adequately account for the lack of action.
The judge said the parties had different understandings of whether the NUJ file had been delivered. Ní Chionnaith’s side said it had been sent in 2017; Fahy’s side said it had not received it until 2021. The judge did not decide where fault lay, and found neither side blameless for allowing more than three years to pass without further enquiry or action.
Despite the delay finding, the court concluded that the balance of justice favoured the claim continuing. Fahy identified no specific missing evidence or unavailable witness. The judge considered the case substantially based on written advice and records that remained available, including files from the former solicitors and the NUJ. She also found no real risk of an unfair trial arising from pre-proceedings delay.
The court therefore dismissed Fahy’s application to strike out the claim. Phelan said her preliminary view was that Ní Chionnaith should receive the costs of the motion, subject to a stay of execution pending the outcome of the proceedings. That costs position was not final: the judgment allowed for written submissions before the order was finalised. The court did not decide the negligence claims themselves.