The High Court has refused to dismiss a worker’s personal injury claim for delay, while indicating that the claim would stand dismissed if she failed to apply within weeks for more time to comply with an earlier court order.
In a ruling delivered on 10 July 2023, Mr Justice Mark Heslin found that the delay was both inordinate and inexcusable. But he concluded that the defendant, Faughan Foods Unlimited Company, had not established that the balance of justice was clearly against allowing the claim to proceed.
The claim concerns an alleged workplace accident on 3 June 2017. The plaintiff says she was pulling a tray from a machine when her finger became trapped, causing an injury to her left hand. The company denies liability and put her to proof of her allegations. It also pleaded that, if she was injured, the machine’s manufacturer or distributor may have been responsible.
Two companies were joined as co-defendants in July 2019. The order, perfected on 31 July, gave the plaintiff four weeks to issue an amended summons and statement of claim. Those documents were not served. The plaintiff’s solicitor later told the court that technical difficulties, a failure to issue a drafted application for more time, inadequate file supervision, Covid restrictions and his own serious illness contributed to the delay. The judge found those matters did not excuse it. He assessed the relevant delay from the end of October 2019 to the defendant’s motion on 1 November 2022, a period just short of three years.
The company argued that delay had weakened witness availability and memories, affected its reputation and insurance, and made the involvement of the co-defendants more complicated. The judge said the plaintiff’s replies to particulars stated there had been no witness to the accident. The company had not identified any witness or other evidence lost because of the delay, or shown that a fair trial was no longer possible. The alleged business and insurance effects were also stated generally, without supporting detail.
The ruling did not dismiss the claim or decide its merits. The judge said the July 2019 order could not fairly be varied within this application. He indicated that the plaintiff must make a separate application to extend time, on notice to all three defendants, within a period of weeks to be determined after submissions. His preliminary view was that the defendant should receive the costs of the dismissal motion. He also indicated that the order should provide that, if the extension application was not made within the set period, the claim would stand dismissed.
The judge noted that the first defendant could bring a further application to dismiss on delay grounds, if circumstances later warranted one. He made no finding on how such a future application should be decided.