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Recent developments in Defence Strike Out Applications
The principles which the Court should use when considering whether to grant a Defendant’s request to have a case dismissed for want of prosecution, due to delay in proceedings, has recently been considered by the Supreme Court.
The seminal decision in this area is Primor plc v Stokes Kennedy Crowley(1) where Hamilton J set down two main principles that apply, namely that a party seeking a dismissal for want of prosecution must show inordinate and inexcusable delay; and even where this has been shown, the Court must exercise its discretion in deciding whether the balance of justice is in favour of, or against, the proceeding of the case, taking into account all circumstances of the case.
Recently in McBrearty v North Western Health Board and Others(2) the Supreme Court had cause to consider this issue again. Here the Defendants Appealed the refusal of the High Court to allow an Order for dismissal for want of prosecution of a claim arising out of the alleged negligence at the birth of the Plaintiff in 1981, which resulted in cerebral palsy. The decision to bring an action came about when the Plaintiff was aged 18 and his GP called his parents and advised them that they should investigate the circumstances of his birth. By the time the negligence action was ultimately instituted, over six years had passed since the GP advised the family to retain Counsel, and for a litany of reasons, nearly twenty-five years had passed since the Plaintiff’s birth.
Geoghegan J pointed out firstly that the “inordinate and inexcusable delay” test is predominantly concerned with post-commencement delays. On the facts of this case, the Court found that delay could be fairly excused as the solicitors acting for the Plaintiff had done their best in the circumstances and that the delay was of no fault on the Plaintiff’s part.
On the “balance of justice” test, and having already found the Plaintiff’s delay to be excusable, Geoghegan J considered whether it would be fundamentally unfair to force the Defendants to defend the case. In particular, he considered the potential unfairness of taking action against two doctors present on the date of the incident, who had been joined to the proceedings in 2005 at a relatively late stage.
Geoghegan J stressed that it would not be considered fundamentally unfair that a doctor in defending a medical negligence claim is required to rely heavily, or even entirely, upon medical records due to the fact they cannot recall the event in question, as medical records are an adequate source. However, he referred to the exceptional circumstances of this case whereby there was doubt about the likelihood of the two doctors being indemnified, leaving them faced with potentially huge legal fees.
On the facts Geoghegan J held it to be fundamentally unfair that the two doctors should have to face Trial and found that the balance of justice favoured striking out the Plaintiff’s action against them, but required them to remain Co-Defendants for the purposes of an indemnity/contribution claim made against them by the HSE.1 .  IR 459 2 .  IESC 27