The High Court has directed further steps to bring three long-running cases involving Kevin and Karen Tracey towards trial, after the plaintiffs missed a series of case-management hearings in early 2021.
The litigation forms part of six proceedings previously struck out by then High Court President Mr Justice Kearns in March 2011. That decision was overturned by the Supreme Court in 2016, after which the cases were returned to the High Court for active case management.
Mr Justice Robert Eagar was assigned to manage the litigation in October 2016. Three cases were subsequently sent to the jury list, leaving the three proceedings addressed in this judgment.
The Traceys had earlier sought Mr Justice Eagar’s recusal. That application was dismissed in October 2019 and the Court of Appeal dismissed a subsequent appeal in December 2020.
Case-management conferences were then listed on several dates between February and June 2021. According to the judgment, the plaintiffs did not attend some of those hearings. They later wrote that COVID-19 prevented them from attending in person, that remote hearings were not an option, and that medical advice meant they would not attend orally until fully vaccinated. They also alleged a deliberate 13-year delay by the defendants’ legal teams.
The court rejected that allegation. Mr Justice Eagar said there had been substantial delay associated with the appeal from the 2011 strike-out order and later Supreme Court proceedings, but he did not accept that defence lawyers had deliberately caused the delay.
The judge required the plaintiffs to produce the correspondence in which they said the court had been notified of their inability to attend, provide the medical basis for their vaccination-related position, and explain what steps they had taken to obtain vaccination.
He also directed a voluntary discovery request in one case and indicated that, subject to any further motions, two of the remaining proceedings would be sent to the jury list on 20 July 2021.