The Supreme Court has dismissed an appeal by Patrick Joseph Kilcoyne against the dismissal of his personal injury claim over alleged hearing loss during his service in the Defence Forces.
In a judgment delivered by Ms Justice Laffoy on 26 February 2014, the Court concluded that the delay in advancing the proceedings was both inordinate and inexcusable. It held that the balance of justice did not support allowing the claim to continue and dismissed the appeal. The Court did not determine whether the alleged exposure to loud noise caused hearing loss or whether the respondents were liable.
Kilcoyne’s action was issued in June 1998, more than 13 years after his discharge from the Defence Forces in May 1985. His statement of claim alleged that the Minister for Defence and the Attorney General were negligent and breached their duty by exposing him to loud noise during his service. The respondents denied liability and pleaded that the claim was statute-barred, but did not rely on that defence when seeking its dismissal for delay.
After initial pleadings in 1998 and early 1999, no procedural step was taken for seven years. In 2006, Kilcoyne instructed a second firm of solicitors, which contacted the Department of Defence about his medical and Army records. The judgment says that firm knew of the existing court proceedings by at least November 2006, but did not respond to correspondence from the respondents’ solicitors or take steps to advance the case. Kilcoyne’s original solicitors remained on record.
The respondents applied to dismiss the action in April 2008. Neither firm attended the High Court hearing on 28 April. The original solicitors said they had no instructions from Kilcoyne. Hedigan J. dismissed the claim for want of prosecution, finding the delay inordinate and inexcusable and the balance of justice in favour of dismissal.
On appeal, Kilcoyne argued that the State’s handling of similar claims and correspondence between the solicitors explained the delay. The Supreme Court rejected those arguments. It noted that the respondents did not claim the delay impaired their ability to defend the allegation about exposure to weapon noise, but said the appeal identified no sufficient reason to let the action proceed. The Court also considered Kilcoyne’s personal responsibility for the delay, including the absence of contact with his original solicitors after 1999 and the failure to progress the case after the second firm learned of it.
The order under appeal was the High Court’s dismissal for want of prosecution. The Supreme Court’s order was to dismiss the appeal, leaving that dismissal in place.