Courts usually tend to allow cases to proceed rather than dismissing them on grounds of delay. The recent decision of Mr Justice Simons in Rooney v Health Service Executive [1](Rooney) shows a departure from this tendency. Significantly, the plaintiff’s claim was dismissed on the grounds of an inordinate and inexcusable delay in prosecuting the proceedings.

The facts and timeline

The facts of the case related to a femoral angioplasty in the defendant hospital in May 2014. The summons was issued in March 2016 and served in February 2017. No details of negligence were pleaded. Following a motion to dismiss brought by our team as solicitors for the defendant hospital in February 2020, the court dismissed the claim and delivered a detailed written judgment in March 2022.

The Primor test to be applied

The relevant test to be applied in cases of delay, is the test in Primor plc v. Stokes Kennedy Crowley[2] (Primor). In this three limb test, the courts look at the following issues in sequence:

  1. Has there been inordinate delay
  2. Has the delay been inexcusable, and
  3. If the answer is positive to both of the first two limbs, it then becomes necessary to consider whether the balance of justice is in favour of or against allowing the claim to proceed

The Decision

In applying the first two limbs of this test in Rooney, it was found that there had been inordinate delay and that this delay of eight years was inexcusable. The court rejected the reasons for the delay that

  • From February 2017 onwards the plaintiff’s solicitor attempted to find a suitable expert to prepare a report
  • The closing of the plaintiff’s solicitors’ office due to coronavirus, and
  • The plaintiff was not in a financial position to fund a report.

The court found there were lengthy periods of inactivity. The court highlighted the judgment of Gallagher v. Letterkenny General Hospital[3], which held that a delay in obtaining expert reports, even where the delay is attributable to financial difficulties on the part of a plaintiff, does not excuse delay.

Applying the Primor test

Court Orders to dismiss plaintiffs’ claims have traditionally been difficult for defendants to successfully obtain. It is not unusual for defendants to be successful in the first two limbs of the Primor test, however in many cases, they fail on the third limb. The courts generally find that the prejudice suffered by a plaintiff in having their claim dismissed trumps the prejudice to a defendant except in the most extreme cases. The judgment in Rooney was especially important due to the manner in which it balanced that prejudice and identified the following issues as imposing significant prejudice to the defendant:

  • Damage to the defendant’s reputation as well as the reputation of the medical practitioner involved
  • Potential increased insurance premiums for both the defendant hospital and named medical practitioner, and
  • The effect of the delay on the defendant’s ability to join third parties

The court also differentiated Rooney from the recent judgment of Walsh v Mater Misericordiae University Hospital and Ashley Poynton[4]. In Walsh, the court found that the balance of justice between the parties favoured the plaintiff. This is because the Walsh case would be determined almost exclusively on the medical records, rather than on oral evidence. Therefore the prejudicial effect of the defendant’s reduced recollection was lessened. In Rooney, the evidence would relate to the intricacies of the key surgery. As a result, the defendant’s oral evidence and recollection would be at least as important as the medical records, where operative notes are generally a mere short summary of a significant operative procedure.

It is also relevant that Walsh was a ‘diagnosis’ case where the medical records tend to be much more detailed in describing the thought process leading to a diagnosis. Also, particulars of negligence were provided before the hearing of the dismissal application in Walsh. After making this distinguishment, the court dismissed the Rooney case for inordinate and inexcusable delay.

Key messages emerging

As a result of this decision, it is likely that applications by defendants to dismiss medical negligence claims will have a better chance of success than before. Critically, by considering and ultimately distinguishing Walsh, the Rooney case opens up the possibility of successful dismissals in cases where the medical records are not as detailed and the recollection of the treating clinician is of significant importance. It will be interesting to see how the courts deal with further cases of delay in the future.