The High Court has allowed two defendants in a medical negligence action to make a late lodgement, but ruled it will not take effect until the second day of trial. If the plaintiff accepts it before then, the defendants must cover her costs up to and including the first day of trial, March 16, 2022.
Mr Justice Paul Coffey delivered the ruling on January 12, 2022, on an application by Andrea Hermann and Galway Clinic Doughiska Limited under Order 22, rule 1(7) of the Rules of the Superior Courts. The judgment identifies Mary T. O’Malley as the plaintiff. It does not state the amount of the proposed lodgement.
The proceedings began with a personal injury summons on August 13, 2012. The defendants delivered a defence on September 17, 2018, and notice of trial issued on July 26, 2019. The case was listed for hearing on March 16, 2022. The late-lodgement application was made three months before trial, more than three years after the last pleading was exchanged.
The plaintiff opposed the application, arguing that recent without-prejudice discussions had allowed her to “show her hand” and that granting leave would unfairly disadvantage her. The court held that this, by itself, was not enough to refuse leave. It said there was no evidence of bad faith, manifest unfairness or another circumstance that would disentitle the defendants from seeking leave.
The judge said the court’s discretion to allow a late lodgement must be exercised fairly. He noted the public interest in allowing defendants to make lodgements that may avoid unnecessary litigation, while guarding against an undue litigation advantage. Settlement negotiations or an unsuccessful mediation do not alone bar leave, the judgment said; special circumstances, such as evidence of bad-faith talks, may warrant refusal.
The ruling concerns only permission and its conditions. It does not determine the medical negligence claim or record a trial outcome. The lodgement’s amount and whether it was accepted are not stated in the judgment.