The High Court has dismissed two applications to strike out a woman’s medical negligence claim, allowing the action to proceed after finding that the balance of justice favoured a hearing.
In a judgment delivered on 1 February 2006, Mr Justice Gilligan found that the delay in prosecuting the case was both inordinate and inexcusable. He also warned that there could be no further delay by the plaintiff and that any further delay could lead to a successful application to dismiss the claim.
The proceedings began in 1989. The plaintiff alleges that she suffered injury through professional negligence in medical care provided while she was a patient at Jervis Street Hospital in November 1986. The defendants delivered full defences. The High Court did not decide the negligence claim or award damages in this judgment.
The judge found on the balance of probabilities that notices of trial had been struck out in 1996 and 1998, rather than the proceedings themselves. He said the action therefore remained live. Because of that finding, the plaintiff’s application to reinstate the proceedings was moot and irrelevant; the appropriate next procedural steps would involve a notice of intention to proceed and a fresh notice of trial, with leave if necessary.
The defendants sought dismissal for delay. They argued that the passage of time had prejudiced their ability to defend the case, including because a hospital nurse could not be located and witnesses’ memories might have faded. The court noted that the hospital records remained available and that no specific evidence had been given about what the missing nurse would have said or when she became unavailable. It found no actual prejudice beyond the general prejudice associated with the delay.
The plaintiff’s solicitors referred to her husband’s death in 1996, her subsequent bereavement, heart problems and hip replacement, and difficulties arranging the medical witness. The judge found no evidence that the plaintiff herself was personally blameworthy for the delay, while noting that the required procedural steps had not been taken.
The court also took account of the defendants’ conduct. In March 2002, the plaintiff’s solicitors said she was ready to proceed and proposed a hearing in June or July. Neither defendant then sought dismissal for delay or advanced the case toward a hearing. The judge concluded that dismissing the claim without a hearing risked a greater injustice to the plaintiff than allowing it to continue.
The defendants’ applications to dismiss the claim were dismissed. The plaintiff’s application to reinstate the proceedings was struck out.