The High Court has refused applications by Tusla and the Health Service Executive to strike out two claims arising from a 2015 hepatitis A outbreak at a creche, despite finding that the plaintiffs’ delays were inordinate and inexcusable.
In a judgment delivered on 28 April 2023, Mr Justice Barr ruled that RN and HF’s actions against the second and third defendants could proceed. The court was considering only the applications to dismiss those claims for delay and want of prosecution; it did not decide whether any defendant was negligent or liable.
The plaintiffs allege that their children contracted hepatitis A at the creche operated by Pearse Community College Nursery Limited and that both plaintiffs later contracted the disease and required hospital treatment. They allege that the nursery failed to meet health, safety and hygiene requirements. Their claims against Tusla and the HSE allege inadequate inspection and supervision, or failures to notify parents after the outbreak was reported. These remain allegations, not findings in this judgment.
Tusla and the HSE relied on two periods of delay: about 11 months before the plaintiffs’ solicitor sent a consolidated freedom of information request to the designated body, and about four and a half years before replies were provided to their notices for particulars. Justice Barr found both periods inordinate and inexcusable, meeting the first two parts of the legal test for striking out a claim.
However, he concluded that the balance of justice favoured letting the actions continue. The defendants had made only a bare assertion of prejudice, with no evidence that relevant witnesses or documents were unavailable or that records had been lost. The court considered the claims against the State bodies likely to turn mainly on documents about inspections and their response to the outbreak. It also took account of the defendants’ failure to use available procedures to obtain the overdue replies, describing their conduct as acquiescence in that delay, and of the plaintiffs’ solicitor’s work progressing the claims against the nursery.
The court directed that, if the plaintiffs seek discovery from Tusla or the HSE, they must request voluntary discovery within three weeks after those defendants deliver their defences. It reserved the defendants’ right to renew their strike-out applications if the actions are not set down for hearing within a reasonably short time. The judgment also noted concern that the plaintiffs’ solicitor did not appear to have an expert report addressing alleged negligence or breach of duty by Tusla or the HSE.
The court refused the applications at this stage. It left final orders and costs for written submissions and listed the matter for mention on 23 May 2023.