The High Court dismissed Michael Burke’s action against the Minister for Health and Children, the Irish Blood Transfusion Service, Ireland and the Attorney General after finding that years of unexplained delay and the risk of an unfair trial outweighed the effect of his serious illness.
The judgment, delivered by Mr Justice Sean Ryan on 20 July 2012, concerned two motions: the State defendants’ application to dismiss the claim for want of prosecution, supported by the Irish Blood Transfusion Service, and Burke’s application to extend the time to serve his statement of claim. The court granted the dismissal application. The judgment’s conclusion states that the action should be dismissed; it does not set out a separate order on the extension motion.
Burke alleged that blood donations he made in February 1992 and September 1993 tested positive for Hepatitis C, but that he was not notified as soon as reasonably practicable. He brought proceedings in August 2005, claiming negligence, breach of duty, misrepresentation, trespass to the person and breach of constitutional rights. After procedural correspondence in 2005, no further step was taken until he served notice of intention to proceed in November 2011. The defendants then sought dismissal, and Burke attempted to serve his statement of claim and applied for more time.
In support of the delay, Burke described serious physical and mental health problems, including cirrhosis, depression, a deterioration in his condition and a liver transplant in January 2009, followed by a prolonged recovery. The judge accepted that his illness would have reduced his capacity to deal with problems. However, the court found that the evidence did not establish that he was unable to instruct his solicitors for much of the six-year period. Burke had not explained his solicitor’s inactivity or provided a basis for separating himself from it.
The court also noted that the proposed statement of claim still lacked details of the personal injuries and special damages being claimed, with no indication of when those particulars would be available. The defendants did not identify any specific lost witness or destroyed document, but the judge concluded that they faced serious prejudice. In particular, assessing whether the alleged delayed notification caused psychiatric illness would be difficult so long after the events.
Applying the principles in Primor v Stokes Kennedy Crowley, the judge found the delay inordinate and inexcusable and concluded that allowing the case to proceed would offend procedural fairness and carry a substantial risk that a fair trial was no longer possible. He said the defendants’ failure to apply earlier did not amount to acquiescence. The judgment recognised Burke’s continuing serious illness as a substantial factor in his favour, but found the balance of justice favoured dismissal.