The High Court has allowed an appeal by a man whose personal injury claim was dismissed for delay, finding that although his delay was inordinate and inexcusable, the defendant had not shown enough prejudice to justify ending the case.
The claim concerns injuries allegedly suffered on 3 January 2013 while the plaintiff was working for S & S Recycling Limited at premises owned or occupied by Stryker Orthopaedics. The Circuit Court dismissed the claim on 16 July 2024. The High Court reheard the appeal on affidavit on 16 December 2024.
Ms Justice Sara Phelan said the period under review ran from November 2020. The plaintiff accepted that the delay during that period was inordinate. The judge also found it inexcusable, noting that the plaintiff had not acted on the first defendant’s voluntary liquidation until December 2022, and that his application for leave to proceed against the company was not heard until January 2024 after it had not been called on in June 2023 due to an oversight.
The court was not persuaded that the defendant, which is in liquidation, had established that the claim should be dismissed. It cited assertions that three former co-workers were no longer readily accessible and memories had faded, but said the defendant had not explained efforts to locate the witnesses, why they were essential, or whether statements had been taken. The judge also found insufficient detail about how the ongoing claim prevented the company from completing its winding up. The plaintiff, rather than the defendant, would bear the burden of proving his claim at trial, she noted.
The judge said the claim would be remitted to the Circuit Court. She urged all parties to manage it so it proceeds urgently and said that, without valid and compelling reasons, a failure to set it down for hearing within about three months could give the defendant almost unassailable grounds to seek dismissal. That was a warning about possible future grounds, not a dismissal order.
The judge’s provisional view was that there should be no order as to costs, both in the High Court and below. She listed the matter for 28 January 2025 to hear the parties on the precise costs order.