The High Court has refused applications by two defendants to strike out a personal injury action for delay, finding that the delay was excusable and that allowing the case to proceed would cause no real prejudice to them.
Mr Justice Barr delivered the judgment on 17 February 2023. The action was brought by Peter Sneyd against his former employer, Stripes Support Services Limited, trading as Kammac Support Services; Diageo Ireland Limited; and Shannon Transport International Limited. Only the first and second defendants applied to strike out the claim.
Sneyd alleges that repeated driving of a forklift truck over uneven ground at Diageo’s premises caused him to develop pilonidal sinus. He claims the truck lacked adequate suspension or vibration protection and that the premises were not properly maintained. These are allegations in the underlying action; the court was deciding only whether the claim against the first and second defendants should be struck out for delay.
The personal injury summons was issued in December 2013 and the defendants delivered their defences in May and June 2015. The first defendant applied to strike out the action in October 2021, followed by the second defendant in January 2022. Sneyd’s solicitor accepted that there had been inordinate delay, but said the case had been overlooked after the solicitor handling it left the firm in 2016. The solicitor also cited the work needed to investigate medical causation and liability, respond to discovery requests and the effects of Covid-19 restrictions.
The judge held that the delay was inordinate but not inexcusable. He considered the case’s complexity, work undertaken behind the scenes and pandemic-related delays. He also found that the balance of justice favoured allowing the action to proceed, even if the delay had been inexcusable.
The defendants had early notice of the claim, and engineers for the parties jointly inspected the forklift and worksite in September 2014. The judge said the second defendant’s claims that witnesses’ memories might have faded and that some witnesses had left or retired were vague: the evidence did not identify those witnesses, explain what relevant evidence they could give or say they were unavailable. No relevant documentary evidence was said to be missing, and the medical records remained available.
The court refused both applications. It did not decide the merits of the injury claim or make a final order on costs. The parties were given two weeks to provide written submissions on the final order and costs, and the matter was listed for mention on 10 March 2023. The judgment’s discussion of whether defendants’ indemnity or contribution notices matter to delay applications was expressly obiter; the court said it would await a case where the point was fully argued before deciding it.