The High Court has dismissed a personal injuries action over a road traffic accident after finding that the plaintiff’s delay was inordinate and inexcusable and that the balance of justice favoured ending the case.
Mr Justice Garrett Simons delivered the judgment on 27 October 2023. The case concerned a claim for damages for an alleged whiplash injury arising from an accident on 7 November 2014. The court did not decide whether the plaintiff had suffered an injury or was entitled to damages.
The proceedings were issued on 11 August 2017 and served on the defendant in August 2018. The defendant sought particulars and further information in January 2019. The plaintiff did not reply, despite an order made in November 2021 directing him to do so within four weeks.
The defendant applied to dismiss the case for delay in December 2022. The plaintiff filed no replying affidavit, and his solicitors did not attend the motion hearing on 20 October 2023. The judge said proof of service of the motion had been established by affidavit.
The judge assessed the culpable delay from around June 2019, when a reply to the defendant’s requests could reasonably have been expected. He put the delay before the dismissal motion at about two and a half years, and said it was continuing. He said the claim was straightforward and no explanation had been offered for the failure to progress it.
In weighing the balance of justice, the judge said the delay had compromised the trial court’s ability to assess the personal injuries claim fairly. Witnesses’ recollections of events from about ten years earlier would be limited, he said, making a trial now inferior to one that could have taken place in 2020. He also pointed to the continuing breach of the order for replies and the plaintiff’s failure to attend the motion hearing.
The judgment said dismissal would deprive the plaintiff of the opportunity to pursue damages, without any ruling on the merits. The judge concluded that this prejudice did not outweigh the effects of the delay and dismissed the proceedings.
On costs, the judge gave a provisional view that the defendant should recover costs. He allowed the plaintiff’s side seven days from the judgment to file written submissions seeking a different order, with the defendant then allowed seven days to reply. If no submissions were filed, the order was to be drawn up in line with the provisional view.