The Court of Appeal has dismissed a surgeon’s appeal against a decision allowing a medical negligence claim to continue despite inordinate and inexcusable delay. It set aside the High Court’s costs order and made no order for costs of the motion there.
The case concerns claims by Julie Walsh against Mater Misericordiae University Hospital and Ashley Poynton. Walsh alleges that negligent care between April and May 2011 led to a below-knee amputation of her left leg on 1 June 2011. Those allegations have not been determined.
Poynton asked the High Court to strike out the claim against him for want of prosecution. The High Court refused. At the appeal hearing, Walsh’s counsel accepted that the delay in progressing the proceedings was both inordinate and inexcusable. The dispute was whether the balance of justice nevertheless favoured allowing the claim to proceed.
The Court of Appeal concluded that the High Court judge was entitled to find that the delay had not caused sufficient prejudice to justify striking out the claim. It noted that medical notes and records would be central to the case and that expert evidence would address the treatment and records. The court also considered the argument that Poynton’s recollection and evidence about medical practice in 2011 could be impaired by time. It found no evidence before the High Court establishing likely difficulty on that point.
The court rejected the contention that the judge had treated the case as turning only on whether a fair trial remained possible. It held that the judge had considered the applicable question of moderate prejudice and the wider balance of justice. The court also addressed arguments about reputational harm, the burden of proceedings, Walsh’s possible claim against her solicitor, and Poynton’s constitutional and Convention rights to a timely resolution. It said reputational damage and additional burden had not been supported by evidence, and that an alternative remedy against the solicitor did not, by itself, justify dismissal.
The appeal against the refusal to strike out the claim was dismissed. The appeal court separately allowed the challenge to the High Court costs ruling: given the solicitor’s inexcusable delay and the reasonableness of bringing the motion, it set aside the order awarding Walsh her costs and made no order as to costs in the High Court. Its view on appeal costs was provisional: no order should be made, but either party could submit written arguments within 14 days.