The High Court has refused to strike out a personal injury action for want of prosecution, although the judge found that the plaintiff’s delay was both inordinate and inexcusable.
The action concerns a trip and fall on 7 June 1998, when the plaintiff was 16. He sought damages for personal injuries. The proceedings began in 2001. The second defendant, Hallinan Construction Limited, delivered its defence on 27 August 2007. The judge said the plaintiff had not served notice of trial or taken further steps since then.
Opposing the second defendant’s motion to dismiss, the plaintiff said his solicitors had been unable to obtain hospital records concerning treatment in the ophthalmology department after the accident. The records were later found under the name Joseph Carrig McCarthy. The plaintiff had moved to the United States around 2000, returned to Ireland in 2009 and said he learned of the dismissal motion in January 2012.
The judge considered the explanation inadequate, observing that it was not clear why the ophthalmology records prevented the case from proceeding to trial. He also reviewed the governing principles for dismissal applications, including whether the delay caused serious prejudice or made a fair trial impossible, and the conduct of both parties.
Despite finding the delay inordinate and inexcusable, Mr Justice Ryan concluded that the action should not be dismissed. He gave three reasons: the plaintiff was under age for most of the relevant period; his explanation for the delay had some factual basis, despite being inadequate; and the second defendant had itself taken more than two years to deliver its defence.
The ruling refused the application to strike out the proceedings. The judgment does not determine the underlying personal injury claim or its merits.