The High Court has refused applications by three defendants to strike out a personal injury action over delay, allowing the claim against them to proceed. The court found that the delay between 2016 and 2019 was excusable and that the balance of justice would favour continuing the case even if that delay had been inordinate and inexcusable.
The proceedings arise from a collision on the N71 near Cronin’s Filling Station in Ballylickey, Co Cork, on 3 August 2011. The plaintiff’s pleaded case is that his vehicle encountered an unknown contaminant on the road, causing him to lose control and hit a stationary vehicle in the filling station forecourt. Liability has not been determined.
The plaintiff alleges that the defendants were negligent or breached their duties. The judgment records that he suffered serious injuries, including fractures and lung injuries, and was cut from his vehicle before being taken to Cork University Hospital. Those injuries were part of the background to the strike-out application, not findings on liability.
The first and second defendants, together with Cork County Council, sought to have the proceedings against them struck out for want of prosecution. The plaintiff’s claims against two other defendants had already been dismissed in 2018 for inordinate and inexcusable delay.
The court reviewed the case’s procedural history, including that the plaintiff’s former solicitor had progressed the action and obtained discovery before coming off record in 2016. The plaintiff did not obtain new solicitors until February 2022. His counsel said he had serious physical and psychological injuries, could not work, lacked funds to engage another solicitor and had pressing family circumstances, including travelling to Wales in a custody dispute. The defendants argued that the delay was inordinate and inexcusable and that the passage of more than 11 years created prejudice, including faded memories.
Applying the principles in Primor v Stokes Kennedy Crowley, the court held that the three-year period after the former solicitor left was excusable. That was sufficient to refuse the applications. The judge added that, even if the delay were both inordinate and inexcusable, the balance of justice would not favour striking out the claims.
The court noted that relevant witnesses for the Council remained employed and that no specific prejudice had been identified. It considered that Gardaí who attended the scene and records held by the Council could be important evidence on whether a contaminant was present. It also said the remaining defendants’ position regarding the two defendants already dismissed from the plaintiff’s claims had not necessarily been lost, because notices of indemnity or contribution had been served on them.
The court refused the applications. It did not decide whether a contaminant was present, who was responsible for the collision, or whether the plaintiff is entitled to compensation.