The High Court has dismissed Richard O’Donoghue’s personal injury proceedings against public house operators John Dawson Junior and Bridget Carey after finding that his delay in advancing the case was inordinate and inexcusable and had moderately prejudiced their ability to defend it.
The judgment, delivered by Ms Justice Emily Farrell on 8 December 2023, concerns an alleged assault on 30 January 2011. O’Donoghue alleged that John Dawson and John Dawson Junior assaulted him in a public house owned or controlled by Michael Carey and Bridget Carey. The claim against Michael and Bridget Carey alleged negligence and breach of duty, including statutory duty, in matters such as security, staffing, training and risk assessment. Those allegations were not decided at a trial.
The personal injury summons issued in September 2013. The Careys delivered a defence in June 2014. O’Donoghue’s last step in the proceedings was a May 2014 motion seeking judgment in default of defence against them. The defendants sought dismissal under Order 122, rule 11 of the Rules of the Superior Courts, which allows an application where no step has been taken in proceedings for two years.
The judge found that O’Donoghue had taken no further step after the defence and its verification affidavit, filed in July 2015, until he instructed new solicitors in 2021. She rejected the argument that a criminal prosecution of the two alleged assailants explained the civil delay: the evidence did not show that the prosecution prevented progress, and its dates were not provided. She also found that the breakdown with O’Donoghue’s original solicitors did not excuse the lengthy delay, including the period before he complained to the Law Society in April 2018 and the period after he was advised to find new representation.
The Careys did not identify a particular unavailable witness or specific business loss. However, the judge found moderate prejudice because the case depended on oral testimony and memories of the 2011 events had faded. Garda statements did not address key allegations about staffing, training, security or whether the incident was foreseeable. The judge noted that O’Donoghue could refer to his Garda statement about the alleged assault, while the Careys had no equivalent benefit.
The court concluded that the delay increased the risk of an unfair trial and that the balance of justice favoured dismissal, despite the consequence that O’Donoghue lost the opportunity to pursue his damages claim against the Careys. The proceedings were dismissed under Order 122, rule 11. The judge’s provisional view was that the successful defendants were entitled to costs. Either party could seek a different costs order by notifying the registrar within seven days; absent such notice, the order was to be perfected in the proposed terms.