The High Court has struck out James O’Reilly’s claim against O’Neill and Brennan Limited over a work accident, ruling that the delay in prosecuting the case was inordinate and inexcusable and caused moderate prejudice to the company.
Mr Justice Tony O’Connor delivered the ex tempore judgment on 6 February 2017. The first defendant had applied to dismiss the claim for delay. The court’s order applied only to the action against that company; it did not decide the claims against the two other defendants.
The accident occurred on 12 June 2006 at the Green Isle Hotel on the Naas Road, which the pleadings described as a construction site. The judgment says the first defendant had delivered its defence in March 2010. A motion by that company to strike out the case for delay was determined in February 2013, granting the plaintiff a reprieve. The company brought a second motion in July 2016.
The plaintiff accepted that the delay was inordinate but argued that it was excusable. His lawyers submitted that the other defendants’ failure to engage had held up the case, that the first defendant had not provided information needed to identify those companies, and that uncertainty over the plaintiff’s spinal fusion prognosis had also contributed. The judge was not persuaded. He said the plaintiff could not rely on a defendant to obtain information the plaintiff was responsible for finding, and should have advanced the proceedings after the 2013 reprieve.
On prejudice, the judge noted that the accident site had long since changed and that engineering advice had been sought in 2012 and again in 2016. The first defendant’s counsel confined the claimed prejudice to the effect of delay on witnesses’ ability to recall events and the quality of evidence. The judge found moderate prejudice in the context of the inordinate and inexcusable delay.
The judgment also discussed possible arguments under the Civil Liability Act 1961 involving the other defendants, including potential contribution or indemnity. The judge made no determination on those issues, noting that the other defendants were not before him for that purpose. He struck out the claim against the first defendant after weighing the delay, prejudice and other circumstances under the established principles.