The High Court has restored an eye injury action that had been dismissed for want of prosecution, finding that the potential injustice to the plaintiff outweighed the prejudice to the defendants from allowing the case to proceed.
In a judgment delivered on 14 January 2005, Mr Justice Herbert extended the time for David Cullinane to appeal two orders made by the Master of the High Court and reversed both dismissals. The court did not determine whether the defendants were liable for the alleged injury. It said it would hear the parties on costs and any other consequential orders.
The claim concerns an alleged incident on 20 May 1998. The plenary summons was issued in May 2001, but Cullinane did not deliver a statement of claim within the required period. On 7 October 2003, the Master dismissed the action after a motion by the second defendant. A further order was made on 4 November 2003.
Justice Herbert found, on the balance of probabilities, that a breakdown in communication between Cullinane’s solicitor and town agents explained why no one appeared for him at the 7 October hearing and why the appeal was not filed within the six days allowed. The court also accepted that Cullinane remained intent on pursuing the claim and that the proposed appeal had substance, while making no assessment of the action’s eventual outcome.
The judge considered several periods of delay. He accepted that Cullinane had waited while hoping his eye would improve and later faced difficulty obtaining medical evidence. But he found that the further delay of almost two years after an inconclusive report was difficult to explain and was not objectively justified by the reasons given, including work, financial and personal pressures.
Despite that criticism, the court found no evidence that the delay had caused material detriment to the defendants. The first defendant, Professor Eustace, said original medical records had been destroyed, but believed a copy held by his solicitors was complete. The judge considered the copy admissible and found no evidence that Eustace’s ability to defend the claim had been impaired. The second defendant, sued as the nominated representative of the Mater Misericordiae Hospital, had filed no replying affidavit.
The court concluded that dismissing the case would risk greater injustice to Cullinane than allowing it to proceed after more than six years. The orders dismissing the action were reversed; the underlying claim remains to be determined.