The High Court has adjourned a solicitor’s application to strike out a professional negligence case over delay, giving the plaintiff two months to advance the proceedings under conditions set by the court.
Mr Justice Hogan ruled on 9 May 2013 that the delay was “by any standards both inordinate and inexcusable”. But he concluded that the balance of justice did not require the proceedings to be struck out at that stage.
Yvonne Casserly alleges that solicitor Mary O’Connell, practising as O’Connell & Co., failed to pursue in time a personal injury claim arising from a serious traffic accident in Majorca, Spain, on 10 May 2000. The judgment says the claim would have had to be brought in Spain, where the relevant limitation period was typically one year. No such proceedings were brought within time.
O’Connell’s defence was that she had engaged lawyers in Madrid and that any negligence claim lay against those lawyers. The High Court’s decision concerned only her motion to strike out the proceedings for undue delay. It did not decide whether the negligence allegations were made out.
Casserly began the proceedings on 19 September 2005. They were served on O’Connell in August 2006, and a statement of claim followed in December that year. The judgment records extended delays in replying to a notice for particulars and a notice to admit facts, and in making discovery, despite repeated reminders from O’Connell’s solicitor. Discovery was completed in February 2012.
The judge also noted difficulties in obtaining Casserly’s hospital records and a medical report from the orthopaedic surgeon who treated her after her return from Spain. She saw the surgeon in November 2012, and the report arrived the following month. The judge said the case was ready for trial, subject to the outcome of the motion.
In deciding not to strike out the case, Hogan noted that O’Connell had been on notice of a potential claim since at least July 2005 and that no one had argued that the delay had significantly impaired her ability to defend it. He also said the particulars suggested Casserly had been seriously injured. The judgment emphasised the opposing concern: the prolonged unresolved allegations affected O’Connell’s good name.
The motion was adjourned for two months, during which the plaintiff’s conduct of the case would remain under scrutiny. Casserly must apply within weeks for a hearing date and offer O’Connell the option of separate hearings on liability and damages, with the choice left to O’Connell. Casserly was ordered to pay the costs of the motion.