The Court of Appeal has dismissed a patient’s appeal against the dismissal of his proceedings over an allegedly defective hip implant, finding that the passage of time created a real risk of an unfair trial or unjust result.
The appeal concerned a High Court order made in February 2020 dismissing the proceedings for want of prosecution. The claims alleged medical negligence and product liability arising from a hip replacement in 1995 and later revision surgeries. The Court of Appeal upheld the dismissal on the separate ground that the High Court was entitled to use its inherent jurisdiction under the O’Domhnaill test. It did not decide whether the implant was defective or whether any defendant was liable.
The plaintiff alleged that the implant caused complications and further operations. He also claimed that the surgeon and device suppliers knew of a defect and concealed information from him. The suppliers’ alleged knowledge was linked to a letter dated 19 September 2001. These remained allegations, not findings on the underlying merits.
The High Court had found the delay both inordinate and inexcusable. The plaintiff accepted those findings on appeal. The contested issue was whether the delay prejudiced the defendants enough to justify dismissal. The Court of Appeal considered the claims against the surgeon and the Health Service Executive especially dependent on oral testimony about what the patient was told before later operations. It concluded that memories about events many years earlier could be unreliable, creating the required risk of an unfair trial or unjust result.
The court also upheld dismissal of the claims against the four device-related defendants. It considered that records about product development and testing were likely to exist, and that missing witnesses might cause only marginal to moderate prejudice on the product liability claims. But the case also alleged knowing concealment. The court said that the 2001 letter would need to be explained and put in context, likely requiring testimony from people involved at the time. Given the elapsed years, their recollections could be imperfect or unavailable.
Because the appeal failed on the O’Domhnaill ground, the court did not decide the plaintiff’s separate challenges to the High Court’s application of the Primor test. The defendants were proposed to receive their appeal costs. A party seeking a different costs order was given 21 days from receipt of the electronically delivered judgment to notify the Court of Appeal Office; otherwise, the proposed order would be perfected.