Application to Dismiss: Rooney v HSE
A Review of a recent application to dismiss a personal injuries action
Patrick Rooney v Health Service Executive –  IEHC 132
The personal injuries action in question, which arose out of a medical negligence action, was the subject of an application to dismiss the claim on the following grounds:-
- failure to provide full and detailed particulars of the claim as required by the Civil Liability and Courts Act 2004, (2004 Act),
- continued failure to obtain a report from an independent expert supporting the claim for medical negligence, and
- the inordinate and inexcusable delay in prosecuting the proceedings.
The Plaintiff alleged that following treatment at the Mater Hospital Dublin, the remnant of an angioplasty balloon and catheter remained in his leg, resulting in both a below and above knee amputation. Although the treatment was provided in the Mater, the action was brought against the Health Service Executive and it was flagged to the Plaintiff’s solicitors at an early stage that the HSE was not the correct Defendant in circumstances where the HSE does not operate the Mater Hospital.
The leading judgment is that of the Supreme Court in Primor plc v. Stokes Kennedy Crowley which set out that a Court must consider three issues in such applications:
- has there been inordinate delay;
- has the delay been inexcusable; and
- if the answer to the first two questions is positive, it must be considered whether the balance of justice is in favour of or against allowing the case to proceed.
It was noted that these principles are complemented by the separate but overlapping power of the Court to dismiss proceedings where there is a real and serious risk of an unfair trial and/or an unjust result.
In applying the above principles, Mr Justice Simons held that there had been inordinate delay in this case in circumstances where almost eight years had passed since the treatment itself and six years had elapsed since the proceedings had been instituted. He further opined that there was not merely delay in progressing the proceedings but rather “in a very real sense, the proceedings were never properly commenced”.
In considering whether the delay was inexcusable, the Court noted that there were lengthy periods of inactivity on the part of the Plaintiff’s Solicitor in pursuing an independent medical report, as required under the 2004 Act.
In addition to dismissing the claim for inordinate and inexcusable the delay, it was also held that:
It was in the interest of justice to dismiss this case for failure to comply with the statutory requirement to particularise a personal injuries action. The delay in the case was unreasonable such that to continue without the expert report had now become an abuse of process.
The claim was also dismissed on the separate ground that no reasonable cause of action was disclosed against the HSE where the Mater Hospital is neither owned nor operated by the Health Service Executive.