The High Court has dismissed Carol Fox’s claim against Cherry Orchard Hospital and the Health Service Executive, finding that inordinate and inexcusable delay in prosecuting the proceedings justified striking them out.
In a judgment delivered on 3 May 2019, Mr Justice Max Barrett said the court would grant the defendants’ application to dismiss the claim for want of prosecution. The hearing focused on the alternative ground of inordinate and/or inexcusable delay. The judge did not consider the defendants’ separate application under Order 122, rule 11 of the Rules of the Superior Courts.
Fox, a care worker employed at Cherry Orchard Hospital between January and October 2008, claimed she was bullied and harassed at work and had no choice but to resign. The judgment records 5 October 2008 as the date of the alleged wrongful dismissal or resignation. These were claims in the proceedings, not findings made in this judgment.
The judge found no inordinate delay up to the perfection of a Court of Appeal order in April 2015. He noted a delay in delivering Fox’s affidavit of discovery, which was due in June 2015 and sworn in November. He then found entirely inordinate delay in the proceedings, with no action until Fox issued a notice of trial in July 2018.
The court found no good excuse for inactivity from November 2015 to July 2018. It rejected explanations concerning efforts to obtain information from Fox’s GP and to engage an expert. The judgment described a 13-month effort between February 2016 and March 2017 to establish when Fox first attended the GP for treatment related to symptoms attributed to the alleged bullying. It also said Fox had sought to engage an expert in 2013 but did not take the matter up again until January 2018.
In weighing the balance of justice, the judge referred to 13 potential defence witnesses who might be asked to recall events from 2008. He said their memories might no longer be fully intact, potentially hindering the defendants’ ability to challenge evidence at trial. He also cited the unfairness to healthcare professionals of allegations concerning conduct said to date back to 2008, and that a hearing date would not be available before later in 2019.
The order dismissed Fox’s claim for want of prosecution on grounds of inordinate and inexcusable delay. The judgment does not determine whether the underlying bullying and harassment allegations were true.