The High Court has given Alena Hynes an opportunity to file affidavit evidence on whether her claim against Dr Kevin Cronin is clearly statute-barred, leaving unresolved an application to set aside his joinder as a co-defendant.
In a judgment delivered on 8 March 2006, Mr Justice Clarke said the court should not set aside the joinder on a procedural application unless it was clear that the claim against Dr Cronin was time-barred. Where that is uncertain, the limitation issue should be addressed through the ordinary process, potentially as a preliminary issue.
Ms Hynes had originally brought medical negligence proceedings against the Western Health Board. On 9 May 2005, the court joined Dr Cronin as a co-defendant after the Board sought to bring him into the case as a third party. The judgment said the operation underlying the allegations had apparently been carried out by Dr Cronin.
Dr Cronin later applied to set aside the joinder, arguing that the claim against him was already outside the limitation period when he was added. His application also objected that Ms Hynes had amended her pleadings to include an assault claim without the court’s permission, and argued the case was one of negligence.
The judge rejected the argument that Dr Cronin had to be given notice of the original joinder application. He said a person added without notice could nevertheless apply to have the order set aside.
On limitation, the judge said the court should not decide potentially contestable issues at this procedural stage. He referred to the 1991 Act, under which the time limit for personal injury actions may depend on when a person knew, or ought to have known, certain relevant facts. He said an affidavit was needed to provide an evidential basis for considering whether those provisions might apply to Ms Hynes’ case. If the facts raised such a question, the claim was likely not so clearly time-barred that joining Dr Cronin would be futile.
The judgment also said the 2005 order had not authorised an entirely new assault claim. However, the limitation period for such a claim had not yet expired, and the judge said it could be linked to the negligence action if the claim against Dr Cronin was not clearly time-barred.
The court did not make a final ruling on the application to set aside the joinder or confirm the joinder at this stage. The judge proposed allowing Ms Hynes to file affidavit evidence; if satisfied by it, he proposed confirming Dr Cronin’s joinder and allowing the assault amendments to stand. The judgment does not determine the underlying negligence or assault claims.