The High Court has refused an employer’s application to dismiss a former employee’s workplace bullying and harassment claim, finding that although the delay was inordinate and inexcusable, the balance of justice favoured allowing the case to proceed.
Ms Justice Siobhán Phelan gave the ruling on 31 May 2022 in proceedings brought by Brid Brannach against Brothers of Charity Services Galway. The employer sought dismissal for want of prosecution under the court’s inherent jurisdiction and Order 122, rule 11 of the Rules of the Superior Courts.
Brannach claims damages for personal injuries arising from alleged bullying and harassment at work. Her pleaded case refers to events from 1997, including concerns she raised about staffing levels for service users, and later workplace investigations, allegations and changes to her work. She resigned in April 2008, saying she could not return because of her work environment. She claims to have developed depression and to need long-term medication. These are allegations in the underlying claim; the court was considering delay, not deciding whether they were proved.
Two Circuit Court proceedings were issued in November 2009 and later consolidated and transferred to the High Court. The judge noted a delay of about two and a half years in replies to particulars and no further step in the case between discovery in September 2018 and the employer’s dismissal motion in June 2020. The employer took about six years to deliver its defence. The judge also found that the employer contributed to delay and did not respond to repeated correspondence about mediation.
The judge accepted that the plaintiff had not abandoned the case and that efforts to find suitable expert witnesses helped explain some of the delay. She nevertheless found the delay in getting the proceedings to hearing was both inordinate and inexcusable, and proceeded to assess whether the balance of justice required dismissal.
The employer’s evidence of prejudice consisted of general assertions. It did not identify a witness or evidence that had become unavailable, or explain a specific difficulty in defending the claim. The judge noted that relevant documentary records existed and could assist with witness recollection. She concluded that the employer had not established even moderate prejudice and that its own contribution to delay weighed heavily against dismissal.
The court found no real and substantial risk of an unfair trial or unjust result. Dismissing the claim would leave the plaintiff without a remedy for the alleged wrongs, while the case appeared capable of being advanced to hearing. The dismissal application was refused. The judge said she would hear the parties on directions and consequential orders, including next steps after the employer’s application to amend its defence and clarification of mediation. No final decision on the underlying claim was made.