The High Court has refused to dismiss a personal injury claim arising from a 2010 fall on stairs at Leinster Senior College, finding that delay had not caused enough prejudice to the school to justify ending the case.
In a ruling delivered on 29 June 2023, Ms Justice Siobhán Phelan said the proceedings had been delayed inordinately. She found the final period of delay inexcusable, pointing to the plaintiff’s solicitors’ failure to respond to repeated letters asking whether the case would proceed and seeking a new hearing date.
The case concerns an incident on 12 May 2010. The plaintiff, Stephanie Neiser, alleges she was pushed by another student while using stairs at the school, fell to the bottom and fractured her right ankle. The other student, Idemudia Akpekpe, was joined to the proceedings as a third party. These are allegations described in the ruling, not findings on liability.
The proceedings began in May 2012. They were listed for hearing in February 2020, but the date was adjourned after the plaintiff delivered additional reports, including psychiatric, vocational and actuarial reports. A second hearing date in May 2020 could not proceed because of COVID-19 restrictions. The defendant’s solicitor then sent repeated letters, which went unanswered. The plaintiff’s solicitor served a notice of intention to proceed in January 2023, and the judge was advised the case was ready for a hearing date.
The plaintiff said she had faced difficulties with earlier legal representation and lacked resources to fund the case. She told the court she lost her job in March 2020 and that her parents’ attempts to sell property to fund the litigation fell through. The defendant argued that these circumstances did not excuse the delay, particularly because its correspondence had not been answered. It also claimed prejudice because the case would depend on oral testimony.
Justice Phelan accepted that the plaintiff had not adequately explained the failure to respond and did not excuse the final period of delay. However, she found no specific prejudice: the defendant had not said a witness was unavailable or documents had been lost. The school had been aware of the incident and claim shortly after it happened, and the case had already been listed for hearing twice. The judge also noted that the defendant had contributed to earlier delay, including through the time taken to make discovery.
The court refused the defendant’s application to dismiss the proceedings for inordinate and inexcusable delay. It found the balance of justice did not clearly favour dismissal and that allowing the claim to continue would not cause real and tangible injustice to the defendant. The ruling did not determine the underlying injury claim. Justice Phelan said steps must be taken without further delay to secure a hearing date and indicated that the solicitor’s prolonged non-response should be reflected in any costs order. She left consequential matters, including costs, to be heard.