The High Court set aside an order renewing a personal injury summons against Dunnes Stores (Cornelscourt) Limited and declined to renew it. The court found no good reason for the delay. It did not formally dismiss the proceedings, though the judge said he would be minded to do so if that question arose.
Yvonne Flood alleged that she injured her back at work on 29 or 30 May 2001 while unloading crockery from a dishwasher at the Timepiece Restaurant in Cornelscourt, Dublin. She said the tray was heavy and that her symptoms began immediately. The judgment records these as her account, not findings on the alleged accident or liability.
A plenary summons was issued on 13 May 2004, shortly before the limitation period was due to expire. It was not served within the period for service, which expired in May 2005. In March 2010, almost six years after issue, Peart J. renewed the summons for six months on an ex parte application. The defendant later sought to set that order aside and also asked the court to dismiss the case for inordinate and inexcusable delay. Flood had separately sought judgment in default of defence.
The plaintiff relied in part on difficulty obtaining a medical report. Her solicitor first requested one in February 2002, but the report was not received until December 2006. The court found that explanation unconvincing: the early correspondence linked the symptoms to the workplace incident, and the solicitor could have followed up the report request. The judge also found the period between the report and the 2010 renewal application unjustified. He concluded there was no good reason to renew the summons.
The court also considered whether the interests of justice supported renewal and whether the proceedings should be struck out for delay. It found the delay inordinate and inexcusable, and no countervailing circumstances such as acquiescence by the defendant. The judge considered the defendant’s ability to defend the case impaired, including because memories might have faded and the medical link between the alleged incident and continuing symptoms would be harder to examine. He acknowledged the plaintiff’s reported continuing symptoms and MRI findings, but said the delay was not the defendant’s fault.
The court set aside the 2010 renewal order and declined to renew the summons. It said a formal decision on dismissal for delay was not strictly necessary after that ruling. The plaintiff’s motion for judgment in default of defence was not determined in the judgment. The judge noted that the defendant’s failure to respond to correspondence seeking a defence had contributed to the costs of that motion, an issue that might be considered in any costs application.