The High Court has refused to dismiss Judi Costello’s negligence claim against the solicitors she retained after a 2005 accident, despite finding that more than two years passed without a formal step to progress the proceedings.
In a judgment delivered on 23 June 2022, Mr Justice Mark Heslin said the defendants had not established that Ms Costello’s delay was inexcusable or that the balance of justice favoured striking out her case. The application, brought under the court’s inherent jurisdiction and Order 122, rule 11 of the Rules of the Superior Courts, was dismissed.
Ms Costello alleges that she injured her left ankle in a trip and fall outside property where building work was taking place. She claims the defendant solicitors failed to lodge her personal injury claim with the Personal Injuries Assessment Board or issue proceedings within the statutory time limit, and later misrepresented the status of her case. The solicitors deny allegations of deceit and misrepresentation. The judge stressed that the motion did not require him to decide the disputed issues in the underlying claim.
The judge identified the relevant period of formal inactivity as 3 December 2018 to 3 March 2021, when Ms Costello’s solicitors served a notice of intention to proceed. He found that the resulting delay of two years and three months could be considered inordinate. However, he accepted uncontested evidence that work had continued during that period, including efforts to obtain reports from an occupational therapist and a nursing consultant. The reports informed detailed additional particulars of loss served before the defendants brought their motion. He found the delay excusable, while criticising Ms Costello’s solicitors for not keeping the defendants updated.
In considering the balance of justice, the judge said the defendants’ evidence of prejudice was general and did not identify missing records or a specific obstacle to a fair trial. He noted that substantial medical records and reports were available, and that the defendants had previously delayed delivering their defence and making discovery. He also considered the consequences for Ms Costello if her claim were dismissed and found countervailing circumstances favouring its continuation.
The ruling determines only the application to dismiss for delay; it does not decide liability or the merits of Ms Costello’s underlying allegations. The judge’s preliminary view was that the ordinary rule on costs should apply, with costs following the event. He directed the parties to agree the form of order, including costs, or file short written submissions within 14 days if they could not agree.