The High Court has rejected AIBP Limited’s application to dismiss Ann Vernon’s personal injury proceedings for want of prosecution, finding that although the delay was inordinate, it was excusable and a fair trial could still be held.
Ms Vernon alleges she was injured in a factory accident on or about 14 December 1999. A plenary summons issued on 30 November 2001. A defence was delivered in October 2002, and the parties exchanged further particulars in 2002 and 2003. Ms Vernon’s solicitors served a notice of intention to proceed in May 2004. No further action appears to have been taken by either side until her solicitors served a second notice on 27 November 2012.
The judgment records that Ms Vernon suffered ill-health and personal and family misfortunes during the intervening years. She was not in contact with her solicitors, who were apparently unable to reach her after she moved without giving them her new address.
AIBP argued that the delay was both inordinate and inexcusable and that the balance of justice favoured dismissing the claim. Its affidavit evidence cited prejudice from the passage of time, including the closure of the factory, which it said prevented an engineering inspection, difficulties obtaining medical records and conducting a medical examination, and trouble locating fact and expert witnesses.
Ms Vernon’s counsel accepted that the delay was inordinate but argued it was excusable in light of her circumstances. Counsel also disputed the extent of the claimed prejudice, submitting that AIBP remained a going concern and was likely to retain relevant records, and that medical records could be obtained. The judgment says those points were contested submissions, not separate findings on the availability of specific records.
Applying the three-part test in Primor, Mr Justice Barrett found the delay inordinate and excusable. Because it was not both inordinate and inexcusable, he said the test’s third limb—balancing the interests of justice on that basis—did not arise. The judge separately considered the balance required by O’Domhnaill v Merrick. He concluded that the difficulties identified by AIBP and the overall delay did not prevent a fair trial.
The court also noted that AIBP had not sought dismissal during the period between the two notices to proceed. It rejected the argument that this amounted to acquiescence, but treated the company’s inaction as a factor weighing against its application. The court rejected the application to dismiss the proceedings. It did not determine the underlying injury claim.