The High Court has dismissed a medical negligence claim over treatment at St James’ Hospital, ruling that the plaintiff’s prolonged delay in progressing the case was inordinate and inexcusable and that the balance of justice favoured dismissal.
In a judgment delivered on 28 July 2023, Mr Justice Mark Heslin granted a motion brought by the defendant, Lorcan Birthisle, to dismiss the proceedings for want of prosecution. The court also found that the delay created a real risk of an unfair trial or unjust result under the separate test in O’Domhnaill v Merrick. The judgment records the dismissal; it does not specify a costs order.
The plaintiff’s 2015 summons alleged that a staple left in her right lower leg after childhood surgery caused recurrent infections and hospital admissions from about November 2011. It said the staple was removed in November 2013 and that infections in the area had not recurred. The judgment records that the summons did not identify when the earlier surgery took place, the medical staff involved or the specific acts said to amount to negligence.
The defendant’s motion, issued in December 2021, relied on delays before and after the claim began. The court noted that the proceedings were issued in December 2015, served almost a year later, and initially named the wrong nominee for the hospital. The title was amended in April 2018, more than a year after the defendant’s solicitors had requested the change. The plaintiff did not reply to a request for further particulars issued in July 2018, and the court found that the defendant had repeatedly sought progress.
No independent medical expert report had been obtained by the time of the hearing. The defendant’s solicitors had called for such a report in 2017. A report was requested from a London surgeon in October 2022, but none had been produced by July 2023. The plaintiff’s solicitor said the surgeon’s office had indicated that preparation would take three to four months. The judge found that the evidence did not explain the long delay or show sufficient urgency in seeking the report.
The court emphasised that it was not making findings on allegations concerning the plaintiff’s former solicitors. It also noted that the plaintiff had not sworn an affidavit explaining her own actions, instructions or understanding of the case. The judge found that the claim was too poorly particularised for the defendant to investigate and that the passage of time risked degrading the memories of witnesses whose evidence would be needed. He concluded that the defendant had established all three elements of the Primor test and that the case should end at this stage.