Supreme Court dismisses appeal on medical negligence claim where delay was not shown to prejudice the defendant.

THE SUPREME COURT

Appeal No. 074, 76, 77 & 99/2008

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

CHRISTOPHER McBREARTY (A PERSON OF UNSOUND MIND NOT SO FOUND BY INQUIRY SUING BY HIS MOTHER AND

NEXT FRIEND, ANNA McBREARTY)

Plaintiff/Respondent

and

THE NORTH WESTERN HEALTH BOARD, ANDREW McFARLANE AND BY ORDER OF THE HIGH COURT JOHN GLYNN AND JASPAL

SINGH

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of May 2010

Due to alleged negligent mishap at birth on New Year’s Day 1981, the above-named plaintiff/respondent (hereinafter

referred to as “the plaintiff”) suffers from severe cerebral palsy of the spastic quadriplegic type with attendant learning

difficulties and mental handicap. As stated in the judgment appealed from “he is substantially disabled and requires an

electronically powered wheelchair. He is unable to live independently.” As can be seen from the title to the proceedings,

the plaintiff is suing as a person of unsound mind and not so found by inquiry by his mother and next friend, Anna

McBrearty. According to sworn evidence by the mother, the family was given no reason for the disaster resulting from the

birth but was told “it is just one of those things”. The McBreartys are of modest means and of limited education. When

the plaintiff had reached the age of eighteen, the family general practitioner, Dr. Hegarty, called in the parents and told

them that he felt “duty bound” to inform them in the presence of the plaintiff that they should investigate what happened

to the plaintiff around the time of his birth.

I will pause in the narrative at this point, to explain the general nature of the proceedings and the appeal. As a

consequence of the recommended investigation which then took place this negligence action was instituted initially in the

name of the plaintiff alone against the North Western Health Board (whose liabilities are now vested in the Health Services

Executive) and the second-named defendant, Andrew McFarlane, a consultant gynaecologist and obstetrician attached to

the Donegal hospital who was erroneously believed at the time to have been in overall charge of the birth on the night in

question. Subsequently, it was discovered that he was not in the hospital on that occasion and proceedings against him

were discontinued.

The case then had a long history due to a number of factors. Among them was:-

1. Confusion about the role of the second-named defendant as already explained. That confusion extended to his

purported solicitors McCann FitzGerald who had been nominated by the Medical Defence Union.

2. The application by the health board at a relatively late stage, i.e., 11th March, 2005 to join the third and fourth-

named defendants as third parties. That application was successful and the High Court went on to join the two

third parties as co-defendants. The third-named defendant, Dr. John Glynn, senior House Officer on duty at the

time of the birth and Dr. Jaspal Singh, the locum consultant supervising him and who now lives in Canada. Dr.

Singh is not an Irish citizen.

3. Procedural delays ensued due to having to amend the plenary summons and statements of claim. In the case of

Dr. Singh, problems and understandable delays arose in relation to service. It was originally believed that the

Medical Defence Union would take over Dr. Singh’s defence and nominate McCann FitzGerald as solicitors. When

that turned out not to be the case Dr. Singh was given every opportunity to nominate an Irish solicitor to accept

service. When he failed to do so, an order of the High Court had to be obtained to permit service of a notice of a

concurrent summons out of the jurisdiction.

There were, of course, other routine delays due to having to procure appropriate medical reports etc.

Eventually, three separate motions were brought, first by Dr. Glynn on the 14th February, 2007, then by Dr. Singh on the

16th February, 2007 and finally but significantly later by the health board on the 31st May, 2007. There are some not

particularly notable differences in the reliefs sought in these three notices of motion and I will return to them in due

course. The important aspect of all three of the motions was that in each case a particular defendant was invoking the

inherent jurisdiction of the court to strike out the proceedings for delay. The three motions were heard in the High Court

together by MacMenamin J. In accordance with the established jurisprudence to which I will obviously be referring in more

detail, the learned High Court judge approached his task by analysing whether there was inordinate and inexcusable delay

and holding that there was. Having made that finding, the judge went on to consider whether the balance of justice lay in

striking out the proceedings in each case or in permitting them to proceed. He decided that the balance of justice

favoured permitting them to proceed.

The H.S.E. (though still in the name of the former health board), Dr. Glynn and Dr. Singh have appealed that decision to

this court. The plaintiff has cross-appealed against the finding that there was inordinate and inexcusable delay. This

judgment is concerned with those appeals and the cross-appeal.

I now return to the main narrative. When Dr. Hegarty gave the advice to the McBreartys to have the birth investigated,

the McBreartys consulted their local solicitors, P.A. Dorrian & Co. on the 11th July, 2000. On the 28th May, 2001, that

firm wrote to the health board seeking medical records. It is not clear why nearly a year elapsed before that was done,

but in terms of the overall lapse of time, I do not think it was all that significant. At any rate, the health board released

their records to P.A. Dorrian & Co. on the 19th September, 2001. At that stage, Dorrians advised that an opinion should

be obtained from an independent medico/ legal advisor as to the question of liability and they also advised that it would

be better if the plaintiff was represented by a firm more experienced than they in medical negligence litigation. They

recommended that Damien Tansey & Associates (now Callan Tansey) be retained. McBreartys took this advice and that

firm was duly retained on the 21st November, 2001. Within days, i.e., 27th November, 2001, proceedings were instituted

against the first two defendants. This was in order to keep the action within the statutory limitation period if such period

was to be based on the plaintiff’s minority alone. The second-named defendant, Mr. McFarlane, although served with the

proceedings on the 7th or 8th (both dates have appeared) November, 2002, no appearance was entered by him until the

31st January, 2003. The health board entered an appearance on the 22nd November, 2002. A statement of claim was

delivered to the North Western Health Board on the 10th September, 2003. A medico/legal report had been obtained from

Professor R.W. Taylor for the plaintiff on the 26th July, 2003.

The health board served a notice for particulars on the 7th March, 2004, i.e., almost six months after receiving the

statement of claim. Defences were delivered by Mr. McFarlane on the 23rd March, 2004 but by the health board not until

the 7th March, 2005. The health board defence was only delivered after two separate orders had been made by the High

Court extending time, one for four weeks (Kearns J.) and the other for one week (Gilligan J.). I have already referred to

third party proceedings the ramifications of which took some time. There were problems of service. An amended plenary

summons had to be issued and served and amended pleadings delivered. Around this time, the Medical Defence Union

made a decision not to cover gynaecological negligence claims. It had been assumed that as Dr. Galvin and Dr. Singh

were both members of the MDU, that organisation would nominate a solicitor in Ireland to accept service of proceedings

on Dr. Singh. That, however, did not happen and in the event, a further application had to be made to the court for a

concurrent summons for service out of the jurisdiction be issued and for a notice of it to be served in Canada. The

position was not helped when Messrs Coffey & McMahon, solicitors for the HSE, wrote a letter dated the 4th May, 2005

stating:

“No doubt the MDU will be in a position to let you have a nomination of solicitors from the MDU to accept

services.”

Indeed, the position relating to indemnity was surrounded by confusion. In paragraph 11 of an affidavit sworn by Kate

McMahon, solicitor for the health board on the 31st May, 2007 at paragraph 11 she deposed to the following:

“The State through the offices of the Department of Health has challenged the actions of the Medical Defence

Union in this regard and has taken legal action with a view to a determination of the issues. The substantive issue

has yet to be determined by the court but the Department of Health have undertaken to indemnify all members of

the scheme provided that

(a) there (sic) have paid their indemnity to a recognised body and

(b) that they had insurance cover for the relevant period of time.”

That statement was corrected by a supplemental affidavit of the said Kate McMahon sworn on an unspecified date in

June, 2007. In paragraph 2 of that affidavit, she said the following:

“I say and believe that at the time of the swearing of the said affidavit I mistakenly believed that the State had

undertaken to indemnify all members of the Medical Defence Union who are left without assistance/indemnity from

the Medical Defence Union in respect of the their defence of medical negligence claims. However, I now

understand that that is not the correct position. It would appear that in any medical negligence claim brought

against any particular consultant where he/she has sought assistance/indemnity from the Medical Defence Union

and where that assistance/indemnity has been refused by the Medical Defence Union the consultant may following

a trial of the issues (to include any third party issues) apply to the Minister for Health and Children for assistance

on an ex gratia basis with meeting, the costs of any damages or costs arising from that action and that the

Minister for Health and Children will consider such request for assistance on its merits.”

Personal service on Dr. Glynn was ultimately effected on the 9th August, 2006 and no appearance was entered by him

until the 4th April, 2007. In this entry of appearance, he contested the jurisdiction of the Irish courts notwithstanding

that he had earlier issued a motion in the proceedings. The affidavit of Anna McBrearty sets out details of correspondence

to the nominated solicitors for the third-named defendant relating to the entry of appearance describing how a motion for

judgment in default of appearance was withheld at the request of that solicitor.

In her affidavit which was in response to an affidavit filed on behalf of the health board, Anna McBrearty deals with an

allegation that there was a serious risk of an unfair trial and it was unfair to ask the health board to defend the action at

this remove in time from the events giving rise to the proceedings. In relation to those issues she said the following in

paragraph 24:

“(i) I say and believe and I am advised that there is a full set of record (sic) in relation to the birth of Christopher.

These were provided by staff of the first-named defendant and have at all times been available to their solicitors.

My medico/legal advisors had no difficulty from those records in establishing what the key facts are. Nowhere in

the affidavit is there any suggestion of any gap in the records or any suggestion that any documents including in

particular the foetal heart traces are missing. They have been given the obstetrical chart and a full CTG Trace. In

particular paragraph 18 points out that Mr. Peter Linehan (sic) (should read ‘Lenihan’), consultant obstetrician, had

provided an expert report. There is no suggestion that he had any difficulty in giving an opinion from the records

available to him. There is no suggestion that Mr. Lenihan identifies any gap in the information which is

determinative of liability.

(ii) Nowhere in the affidavit of Kate McMahon is there any suggestion that any witness has died or is unavailable.

(iii) In relation to the insurance issue, in so far as that is relevant to the court, there is no suggestion at

paragraph 13 that the first defendant’s insurer is refusing to indemnify it. I say and believe and am advised by my

solicitors that the third and fourth-named defendants as an SHO and a locum carrying out public work in a public

hospital are clearly employees or servants or agents of the first defendant.

(iv) It is accepted that there is a difficulty with the MDU refusing to indemnify certain doctors, the decision of the

MDU is not suggested to be on the basis that the case dates back to 1981, but because the MDU is involved in a

political campaign to obtain cover for past claims from the State. That is something entirely outside the control of

the plaintiff. Furthermore, it now appears from paragraph 11 of the affidavit of Ms. McMahon that the Department

of Health have now undertaken to indemnify members of the MDU/MPS who had paid into those bodies at the

relevant time. That being so the actions of the MDU have caused no disadvantage to the first defendant.

(v) As I have averred I first wrote to them on the 11th July 2000. ed (sic) above, no one (including the fourth

defendant) at the time in 1981 or thereafter told me that there had been negligence in or about the birth of

Christopher. Instead I was brushed off with vague comments that it was “just one of those things”. Only when our

GP raised the issue in 1999 was I aware that there were grounds to look into the circumstances of the birth.

(vi) The proceedings were issued as soon as possible following receipt of the medical notes. At no stage thereafter

has the plaintiff sat back. He has consistently tried to advance the proceedings forward. The joinder of further

defendants has undoubtedly added to that process. The expert reports of the plaintiff are now complete and the

case could be set down for trial rapidly once the Defences of the added Defendants are received.

(vii) The delay since July 2006 is entirely due to delay by the defendants.

(viii) In bringing this action the plaintiff and your deponent have been exposed to substantial costs including the

costs of solicitors and substantial outlay in relation to expert witnesses. As I have set out above, part of this

outlay has been incurred since service on the first defendant and has been ongoing during the periods of their

delay.”

he affidavit of Anna McBrearty goes on to exhibit medical reports obtained on behalf of the plaintiff which according to

the advice given to the deponent established a strong case. The second last paragraph of the affidavit which was sworn

on the 12th June, 2007 reads as follows:

“27. My solicitors and counsel have done a substantial amount of work to ready this case for trial. In March 2006,

my solicitors flew over at their own expense, my medical advisors including Dr. Hill from Canada, for a detailed

consultation in Dublin. My case on special damages has been thoroughly proofed, with reports from an actuary,

vocational assessor, occupational therapist, nursing expert, assistive technology experts and an architect. My

solicitors have procured reports from an obstetrician, a neuro radiologist, a paediatrician and a paediatric

neurologist. The cost of these reports is in excess of €10,000.”

That affidavit of Anna McBrearty which I have summarised constituted her response to the applications to strike out the

proceedings.

I intend now to refer to other affidavit evidence which has significance for the purposes of determining the appeal and

cross-appeal. I will start with the affidavits of Kate McMahon, a partner in the firm of Coffey & McMahon, solicitors for the

health board. She swore an affidavit in June 2005 for the purposes of seeking leave to join Dr. Singh as a third party.

Paragraphs 4, 5 and 6 of that affidavit read as follows:

“4. More particularly, the plaintiff alleges that he was caused to suffer and sustain personal injury arising from

foetal hypoxia prior to his birth or caused during the delivery process itself or from a combination thereof in

consequence of which he developed cerebral palsy of the spastic quadriplegic type.

5. During the course of the labour the plaintiff’s mother was attended by Mr. Jaspal Singh, locum consultant

assisted by Dr. John Glynn and it was the said Mr. Singh who was responsible for the decision to deliver and, the

delivery of the plaintiff by way of ventouse.

6. I say that if the plaintiff suffered hypoxic insult during the course of his delivery then I believe that Mr. Singh as

the consultant in charge of the plaintiff’s delivery and birth, who made the decisions pertaining to the manner and

mode of the plaintiff’s delivery and birth and, who was present throughout the course of the plaintiff’s delivery and

birth should properly be joined as a third party to those proceedings. It is to be noted that at that stage the

health board were seeking to join Mr. Singh only as a third party he being the locum consultant. I should of course

have mentioned that proceedings were discontinued against the second-named defendant, Mr. McFarlane. A

separate application was brought by the health board to join Dr. Glynn as a third party. The affidavit grounding

that application was in more or less similar terms but placed joint responsibility on Mr. Singh and Dr. Glynn. As

already mentioned the two proposed third parties were ultimately joined as co-defendants. In a further affidavit of

Kate McMahon sworn on the 31st May 2007 and which appears to have been connected with some procedural

matter. The deponent in paragraph 5 said the following:

‘I say that in investigating the plaintiff’s claim I your deponent obtained expert medical opinion on the

management of the plaintiff’s mother’s labour/delivery and birth of the plaintiff. It was clear from the

reports furnished by Mr. Peter Lenihan, consultant obstetrician that the attending doctors, Dr. Glynn

and Dr. Singh had a case to answer on liability on the basis the first-named defendant had sought to

join both doctors as parties to the proceedings’.”

Although those reports of Mr. Lenihan have never been furnished or produced, an inference has been drawn by the

plaintiff which was not seriously disputed at the hearing of the appeal that the contents of the indemnity and contribution

notice served by the health board on the two doctors in question were based on those reports. The indemnity notice set

out very precise particulars of negligence. They were listed as follows:

“(a) Exposed the plaintiff to a risk of injury of which he knew or ought to have known.

(b) Failed to diagnose the difficulty which the plaintiff’s mother was experiencing during the second

stage of labour and failed to deliver her as soon as possible.

(c) Failed to carry out a proper assessment of the plaintiff’s mother during the course of her second

stage of labour.

(d) Failed to recognise and/or take cognisance of the fact that the plaintiff’s mother had a narrow sub-

pubic arch.

(e) Failed to take cognisance of the fact that the combination of a long labour and the presence of

meconium would place the plaintiff at a high risk of asphyxia and catastrophic injury and, failed to

react appropriately.

(f) Attempted a ventouse delivery without consulting with other members of staff and in particular the

consultant on duty.

(g) Failed to discuss and/or to seek the advice and expertise of the senior consultant in charge.

(h) Attempted a vacuum delivery when it was not safe to do so.

(i) Failed to consider a caesarean section in all the circumstances.

(j) Failed to carry out a caesarean section.

(k) Failed to manage the second stage of labour properly or at all.

(l) Failed to exercise all reasonable skill and care in and about the delivery of the plaintiff having regard

to his specialist knowledge, skill and status.

(m) Caused permitted or occasioned the plaintiff to be subjected to hypoxic insult.

(n) In all the circumstances failed to follow general and approved medical practice in and about the

management of the plaintiff’s mother’s labour and delivery of the plaintiff.”

It is perfectly obvious that those particulars came from the reports of Mr. Peter Lenihan, the well-known obstetrician and

gynaecologist. It has, however, been expressly stated by Mr. Richard Keane S.C., as counsel for the HSE that the HSE,

as successor of the North Western Health Board, would be vicariously liable for any negligence on the part of either Dr.

Glynn or Dr. Singh. That concession which is clearly correct is of some importance when I come to consider how the

appeals and cross-appeal should be determined.

I think that I should signpost at this stage one matter mentioned by Anna McBrearty in her principal affidavit referred to

above. What she stated about the MDU was based on information coming from the health board itself which, as it turned

out, was not correct. The error was admitted by the solicitor for the health board. Indeed it is still not entirely clear what

the true position is but I will be elaborating on what emerged at the hearing of the proceedings at a later stage in this

judgment.

At the hearing of the appeal, the court was furnished with a document headed “Chronology of significant dates” which

were stated to be the following.

Date Event

30th December 1980 Plaintiff’s mother admitted to hospital for delivery.

1st January 1981 Date of birth. Soon after 1st January 1999 plaintiff’s parents

were advised by G.P. to investigate birth of plaintiff.

11th July 2000 Plaintiff’s parents initially sought advice from P.A. Dorrian & Co.,

solicitors.

28th May 2001 Letter from P.A. Dorrian & Co. to health board seeking medical

records.

19th September 2001 Health board releases records to P.A. Dorrian & Co.

21st November 2001 Plaintiff’s current solicitors were retained.

27th November 2001 Plenary summons issued, only North Western

Health Board and Andrew McFarlane were

named as defendants.

6th December 2001 Letter from health board insurers to Medical

Defence Union on behalf of doctors Singh and Glynn advising

them of potential claim.

24th October 2002 Letter from Medical Defence Union to Irish public bodies

confirming that they have identified Dr. Singh as a member of

the MDU and have located him in Canada.

8th November 2002 Service on solicitors for Mr. McFarlane –

McCann FitzGerald.

19th November 2002 Service on solicitors for North Western Health Board – Coffey &

McMahon.

22nd November 2002 North Western Health Board entered an appearance.

31st January 2003 Appearance second-named defendant (Mr.McFarlane) McCann

FitzGerald.

6th May 2003 Statement of claim delivered to Mr. McFarlane.

26th July 2003 Medical report obtained by plaintiff from Professor R.W. Taylor

and subsequently referred to in reports of another of the

plaintiff’s experts, Mr. Clements dated 28th November 2005.

10th September 2003 Statement of claim delivered to North Western Health Board.

7th March 2004 Notice for particulars raised by North Western Health Board.

23rd March 2004 Defence of Andrew McFarlane, notice for particulars of Andrew

McFarlane

21st June 2004 Order (Kearns J.) giving the health board four weeks to deliver

the defence.

30th January 2005 Medical report of Dr. Philip Anslow (for plaintiffs).

7th March 2005 Order (Gilligan J.) giving the health board a further one week

extension to deliver a defence.

7th March 2005 Defence of health board delivered.

11th March 2005 Notice of motion issued by health board to join Dr. Singh and

Dr. Glynn as third parties.

25th April 2005 Order of the High Court (Johnson J.) joining Dr. Singh and Dr.

Glynn as co-defendants.

23rd May 2005 Plaintiff’s replies to notices for particulars to first and second-

named defendants.

26th May 2005 Medical report of Dr. Alan Hill also an expert for the plaintiff.

10th November 2005 Letter from plaintiff’s solicitors to defendants including Dr. Singh

asserting the cerebral palsy of the plaintiff was caused by the

alleged negligence and breach of duty of the defendants and

requesting them to confirm that they would compensate the

plaintiff.

28th November 2005 Medical report of Mr. Alan Clements (for plaintiff).

16th December 2005 Plenary summons was purportedly amended.

16th December 2005 Concurrent summons issued with respect to Dr. Singh.

13th January 2006 Master of the High Court granted liberty to amend title of

plenary summons to read Christopher McBrearty (a person of

unsound mind not so found suing by his mother and next friend

Anna McBrearty).

22nd February 2005 The Master of the High Court extended the time within which to

comply with that order of the 13th January 2006 by two weeks.

8th March 2006 Plenary summons duly amended in accordance with the court

orders.

20th April 2006 Letter from plaintiff’s solicitors to Dr. Singh advising that Dr.

Singh had been joined by co-defendant pursuant to the order

dated 25th April 2005.

12th May 2006 Amended statement of claim delivered to first and second-

named defendants.

29th May 2006 Order of High Court (Peart J.) extending the time for applying

for renewal of the amended plenary summons and concurrent

summons to the 29th May 2006.

(ii) Renewing the summonses for a period of six months as

against Dr. Glynn and Dr. Singh.

(iii) Granting liberty to serve notice of the said concurrent

summonses on Dr. Singh at his address 70 Exhibition Street,

Kentville, Nova Scotia, Canada or elsewhere in Canada.

(iv) Granting Dr. Singh eight weeks from the date of service of

the notice of summons within which to enter an appearance to

the summons.

12th July 2006 Amended plenary summons and statement of claim delivered to

health board solicitors.

17th July 2006 Purported notice of summons was served on Dr. Singh

25th July 2006 Appearance entered on behalf of Dr. Singh.

27th July 2006 Plaintiff’s solicitors deliver a purported amended statement of

claim to Dr. Singh’s solicitors.

9th August 2006 Plenary summons served on third-named defendant Dr. Glynn.

23rd January 2007 Notice of motion by plaintiff for judgment in default of defence

against fourth-named defendant.

14th February 2007 Dr. Glynn’s motion the subject of this appeal issued.

16th February 2007 Mr. Singh’s motion the subject of this appeal issued.

8th March 2007 Motion for judgment in default of appearance.

12th March 2007 First return date for motions brought on behalf of Dr. Glynn and

Mr. Singh.

4th April 2007 Limited appearance entered on behalf of Dr. Glynn.

23rd April 2007 Return date for plaintiff’s motion in default of appearance.

10th May 2007 Notice of indemnity and contributions served by the first-named

defendant on Dr. Singh and Dr. Glynn.

10th May 2007 Amended defence served on behalf of the health board

24th May 2007 Trial of motions brought by Dr. Singh and Dr. Glynn against

plaintiff and plaintiff’s motion against fourth-named defendant

(adjourned).

21st May 2007 Notice of motion herein issued on behalf of the health board.

6th June 2007 First returned date of aforesaid notice of motion.

27th June 2007 Aforesaid motions listed for hearing (adjourned).

30th October 2007 Trial of the aforesaid motions.

It may be of some relevance to note that the health board’s motion now the subject of this

appeal seems to have been brought as an afterthought and indeed quite a long time after the

motions brought by Dr. Glynn and Dr. Singh. They were brought respectively on the 14th

February, 2007 and the 16th February, 2007. The health board’s equivalent motion was not

brought until the 31st May, 2007 although in fairness to the board, in the first defence

delivered by it on the 7th March, 2005 and repeated in later amended defences, paragraphs 1

and 2 were pleaded under the heading “Objection”. Those paragraphs read as follows:

“1. The bringing and maintenance of these proceedings at this remove in time from the events the subject matter

of the proceedings is unfair, unjust and contrary to the principles of natural and constitutional justice.

2. The defendant contends that the plaintiff’s claim should be dismissed by reason of inordinate and

unconscionable delay in the initiation and processing of the plaintiff’s claim.”

Nevertheless, the procedure invoked by the two doctors was, in my view, the correct one in the circumstances. A

medical negligence action arising from events which took place many years ago may well be struck out for delay, to use

that expression loosely. But if such an approach is being seriously adopted by a defendant, a motion should be brought at

an early stage and before substantial time and expense are incurred in obtaining expert reports, legal advices etc. and

indeed stress and worry caused.

As I have already mentioned the three motions heard together by MacMenamin J. are not identically worded though I

think that the real issues arising from them are the same. For the sake of accuracy however, I will refer to each of the

motions in turn.

Dr. Glynn’s motion first seeks an order setting aside the order renewing the plenary summons. This was another minor

issue in the proceedings and I have not so far referred to it. It is sufficient to state that I am in agreement with the

decision and reasoning of the High Court judge in relation to this matter. The second relief sought on the motion

additionally or alternatively was an order dismissing the plaintiff’s claim “on the grounds of inordinate and inexcusable

delay”. That was the main issue dealt with by MacMenamin J. and I will, in due course, return to it.

Dr. Singh’s motion sought in the first instance a declaration that he was not a party to the proceedings by reason of the

failure on the part of the plaintiff to amend the plenary summons within the period prescribed by O. 28, r. 8 of the Rules

of the Superior Courts. Again, this was a minor issue and I agree with the treatment of it in the High Court judgment. The

notice of motion then went on to seek reliefs in the form of dismissal of the proceedings on grounds of delay, those

grounds being set out much more elaborately. They were four in number.

1. Inordinate and inexcusable delay in the commencement and prosecution of the proceedings resulting in

prejudice to Dr. Singh such that the balance of justice required dismissal.

2. The continuance of the proceedings would be contrary to the interest of justice and would be a breach of Dr.

Singh’s constitutional rights and in particular his rights to fairness of procedures and a fair trial.

3. The continuance of the proceedings would breach Dr. Singh’s rights under the European Convention for the

Protection of Human Rights and Fundamental Freedoms and the European Convention on Human Rights Act, 2003

with particular reference to the right to a fair hearing and a trial within a reasonable time.

4. The continuance of the proceedings would be an abuse of process.

The health board’s motion was also seeking a dismissal on grounds of delay and those grounds were particularised in

almost identical terms (though not in wording) as in Dr. Singh’s motion.

Before dealing with the legal issues, I think it useful to set out the aspects of delay which seemed to concern the learned

trial judge and which led him to hold that the delay was inordinate and inexcusable.

First of all, the learned High Court judge, correctly in my view, considered that in applying the “inordinate and inexcusable

delay” test, he was concerned in the main with what happened after the commencement of the proceedings and not with

what happened before the commencement. I have used the expression “in the main” because as is clear from case law, it

has been well established for a long time that even in cases where the court is only concerned with delay post the

commencement of the proceedings, it will view the obligation of expedition after the commencement much more strictly

when there has been a considerable lapse of time before the commencement. That is the approach the learned High Court

judge expressly adopted and I believe it to be correct. However, the learned judge seems to me to have fallen into some

error in the application of the test. He correctly held that, certainly in the circumstances of this case, any culpability on

the part of the plaintiff’s solicitors could be imputed to the plaintiff himself. In that context, the first area of delay to

which the learned judge refers is the period between the issue of the plenary summons which was the 27th November,

2001 and the entry of appearance of the health board on the 22nd November, 2002. The judge makes the point that no

motion for judgment in default of appearance was brought against the health board. This criticism does not appear to me

to be well-founded because the plenary summons was merely issued on the 27th November, 2001. It was not served on

the health board until the 19th November, 2002. The health board entered an appearance within three days of that

service i.e. on the 27th November, 2002. It does not appear to me, therefore, that there could have been any question of

a motion for judgment in default of appearance. Of course, a quite different point could be made. Why was there a delay

in the service? I think it is reasonably clear that there was an explanation for that time lapse and I do not think that it is

seriously complained of. I have already recounted the background as to how the original Donegal solicitors recommended

the plaintiff to move to Callan Tansey & Co. By the time that firm received the instructions, the limitation period in favour

of the plaintiff based simply on his infancy was about to run out. At a later stage the proceedings were amended to give

the plaintiff a next friend, the plaintiff being thereafter described as a person of unsound mind not so found and that still

remains the position. Investigations would have had to be made by the new solicitors and medical opinions obtained

before the plenary summons could be served. This does not mean that the health board was not fully aware of the

intended claim from an early stage. The previous solicitors P.A. Dorrian & Co. had written to the board for medical records

as far back as the 28th May, 2001 and those records had been released by the health board on the 19th September,

2001. There was a letter from the health board insurers to the Medical Defence Union on behalf of Doctors Singh and

Glynn advising of their potential claim on the 6th December, 2001. In my view, the learned trial judge was not entitled to

take that period into account.

The judge’s next criticism is in the following terms:

“Then there was an elapse of time of six months between that date (22nd November 2002) and 6th May 2003 at

which point the original statement of claim was delivered to the health board. This would appear to have predated

the receipt by the plaintiff’s solicitors of a medical report on the 26th July 2003. Thereafter a significant delay up

to 10th September 2003 occurred prior to the delivery of the statement of claim to Dr. McFarlane.”

There is no doubt that on the papers before me there is some ambiguity about the dates of delivery of the original

statement of claim. It must be borne in mind, of course, that in a sense the date of delivery of the statement of claim in

its original form became irrelevant as an amended statement of claim had necessarily to be served later when as a

consequence of a health board motion the two other doctors were joined. But quite apart from that point, it does appear

that in fact the statement of claim was delivered to the health board (whatever of Dr. McFarlane although there is some

evidence that it was also served on him on the same date) on the 10th September, 2003. An affidavit by Mr. Roger

Murray of Callan Tansey makes that quite clear. The judgment itself makes clear that the medical report of the 26th July,

2003 was a report of a Professor Taylor advising the plaintiff and although not formally exhibited was referred to in the

exhibited report from Mr. Roger Clements, the consultant obstetrician gynaecologist, advising the plaintiff. That report

would have had to be considered and digested by the legal advisors and therefore the period between its receipt and the

delivery of the statement of claim on the 10th September, 2003 could not, in my view, be described as “a significant

delay”.

The third period highlighted in the judgment is undoubtedly a puzzle. What the judge said about it was that a further

elapse of time occurred between the 10th September, 2003 and 7th March, 2004 at which point a notice for particulars

was raised by the health board. I have searched through all the books of documentation supplied to the court and have

been unable to discover what exactly happened during that period. That particular gap with no apparent activity would

seem to require explanation on behalf of the plaintiff and as far as I can see, none is given. On the other hand, in the

context of considering whether overall delay in the proceedings was inordinate and inexcusable, it would not be correct to

hold that there was such delay simply on the basis per se of one particular period relatively short, given the entire lapse

of time. At any rate, as far as the health board is concerned, it brought its own motion following on, and I have little

doubt, because of the motions brought by Dr. Glynn and Dr. Singh. Given that the health board served the notice for

particulars and did not follow it up with a motion seeking an order for delivery of those particulars, it does not appear that

it was in any way concerned about that particular period.

On the 21st June, 2004 an order was made by the High Court (Kearns J.) giving the health board four weeks to deliver a

defence. This was on foot of a motion for judgment in default of defence instituted by the plaintiff. As of the 7th March,

2005, the health board had still not delivered a defence and on that date Gilligan J. gave a further extension of one week.

The health board defence was duly delivered on the 7th March, 2005.

What happened after that led to further delays which were for the most part, in my view, excusable. There is an element

of discretion in relation to motions to strike out proceedings on grounds of delay. The court should therefore be slow to

interfere with the exercise of that discretion. It does seem to me, however, that a finding of inordinate and inexcusable

delay in this case is in all the circumstances unwarranted and unfair to the solicitors for the plaintiff. My overall impression

of the litigation from the papers before this court is not one of laxity on the part of the solicitors concerned. They appear

to have properly engaged in various problems (and there were a number) which arose. A major problem was the stand off

of the MDU. That coloured everything because it created considerable complications in relation to service of documents. I

do not want to lengthen this judgment unnecessarily by detailing all the procedural steps and problems in connection

therewith relating to the proper joining of Dr. Glynn and Dr. Singh from and after the motion issued by the health board on

the 11th March, 2005 to join those two doctors as third parties. As already mentioned, of course, the High Court on the

25th April, 2005 in fact joined those two doctors as co-defendants.

The learned High Court judge is further including as inordinate and inexcusable delay the period of time between the order

of the High Court made on the 25th April, 2005 joining Dr. Glynn and Dr. Singh as co-defendants and the final amended

plenary summons and concurrent summons of the 16th December, 2005. Some of the various steps are set out in the

judgment of the High Court. MacMenamin J., however, acknowledges that the plaintiff’s solicitors were informed in error by

the health board’s solicitors that McCann FitzGerald would probably accept service in relation to the two doctors. With

this end in view the original amended summons which included Dr. Singh was marked “not for service out of the

jurisdiction”. As the judge himself puts it “it is hard to avoid the conclusion that they were being ‘put through the

hoops’.” Up to November, 2005 there was uncertainty about the position relating to service and acceptance. What is of

some importance is that by a letter of the 10th November, 2005 the plaintiff’s solicitors wrote to the defendants

(including Dr. Singh) asserting that the cerebral palsy of the plaintiff was caused by the alleged negligence and breach of

duty of the defendants and requesting them to confirm that they would compensate the plaintiff. This letter appears to

have been addressed to each of the then four defendants with their separate personal addresses. However, there is a

letter exhibited from McCann FitzGerald solicitors dated 14th November, 2005 which refers to a letter of the 10th

November. I am assuming that that was the same letter a copy of which would have been sent to McCann FitzGerald. It

is not, however, entirely clear. The letter from McCann FitzGerald of the 14th November, 2005 does make it clear that

they had no instructions to act on behalf of Dr. Glynn or Dr. Singh and they refer to an earlier letter in which they stated

that the Medical Defence Union would no longer be assisting Dr. McFarlane (the defendant against whom the proceedings

have been discontinued). This letter went a step further than stating they had no instructions to receive proceedings

against Dr. Glynn or Dr. Singh and stated that their understanding was that the Medical Defence Union had also decided

not to offer assistance to those two doctors.

In connection with any suggestion of procedural delay at this point, I think it relevant to quote paragraph 14 of the

affidavit of the plaintiff’s mother and next friend, Anna McBrearty, sworn on the 8th March, 2007. She said the following:

“14. Of particular note is the fact that while the court was aware that the fourth defendant Dr. Singh

now resides in Canada, it ordered that the summons be marked not for service outside the jurisdiction.

All parties, including it appears the judge, assumed that a nomination of a firm of solicitors would be

made for and on behalf of Dr. Singh.”

She goes on to state that the impression had been conveyed by letters from solicitors of the health board dated 4th May

and 27th June, 2005 that there was likely to be a nomination of a solicitor in Ireland to act for Dr. Singh. It would seem to

me that the solicitors for the plaintiff did their best to obtain such a nomination. That affidavit goes on to explain that

letters were written to Dr. Singh on the 10th November, 2005 and the 20th April, 2006 but that there was no response to

those letters. When it became clear that Dr. Singh would have to be served in Canada, counsel gave advice as explained

in the affidavit that a further application would be necessary for the High Court given the nature of the previous order.

What would now be required would be an extension to the 29th May, 2006 for issuing an amended plenary summons and a

concurrent summons and so as to provide an appropriate time for appearance by Dr. Singh in Canada and also renewing

the summonses for six months and giving liberty to serve notice of the concurrent summons on Dr. Singh. He was not an

Irish citizen. In addition to these complications there was another point subsequently raised by Dr. Singh’s solicitor that

he was not a party to the proceedings by reason of a failure on the part of the plaintiff to amend the plenary summons

within the time prescribed by O. 28, r. 7 of the Rules of the Superior Courts. This point was considered and rightly

rejected by the learned High Court judge.

The combination of these various complexities made it difficult for a solicitor for the plaintiff to progress the case at

speed. I cannot agree with the learned High Court judge that there was evidence of stalling to a degree that rendered

overall inordinate and inexcusable delay. My impression is that the firm of solicitors acting for the plaintiff did their best in

difficult circumstances. As I indicated earlier in the judgment, the major blocking point was the attitude adopted by the

Medical Defence Union. It is obvious that if there was (contrary to my view) inordinate and inexcusable delay, it could not

be the fault of the plaintiff personally. There is no evidence that the next friend contributed to delay. Given the long

delay from the birth there was a duty to expedite the proceedings but I am not satisfied that a breach of that duty has

been established.

Even if the view which I have expressed commends itself to the court that does not per se determine the outcome of the

appeal and cross-appeal. More accurately it does not necessarily follow that the action ought not to be struck out as

against one or more of the defendants on a particular basis of fundamental unfairness in subjecting them to this delayed

litigation notwithstanding the absence of blameworthiness attributable to the plaintiff. At any rate, in case I am

considered wrong in my view that this was not inexcusable delay in relation to all three defendants, I will be considering in

due course the “balance of justice” issue. This issue was the determining factor in the High Court.

Before I elaborate further on these matters, I intend first to outline the most relevant case law more or less in

chronological order.

Most legal practitioners regard, and in one sense, quite reasonably regard the judgment of Finlay P. in Rainsford v.

Limerick Corporation [1995] 2 ILRM 561 combined with the judgment in this court by Hamilton C.J. in Primor plc v.

Stokes Kennedy Crowley [1996] I.R. 459 as the seminal case law on applications to dismiss for want of prosecution and

particularly on the inherent jurisdiction of the court to grant such an order quite apart from breaches of time limits under

the Rules of the Superior Courts. Those cases, however, have an older ancestry that is worth considering for the

purposes of this appeal. There is also an important and partly overlapping jurisprudence deriving, in the main, from

decisions of this court in O’Domhnaill v. Merrick [1984] I.R. 151, Toal v. Duignan (No. 1) [1991] ILRM 135 and Toal v.

Duignan (No. 2) ILRM 140. The importance of this latter jurisprudence is that even in a case where there has been no

fault on the part of the plaintiff, the court, in certain circumstances, in the interest of justice may accede to a

defendant’s application to have the proceedings struck out.

Returning first to the earlier jurisprudence, I think it appropriate to start with a well-known case decided by this court in a

judgment of Ó Dálaigh C.J. which has been cited in a number of the cases. It is Dowd v. Kerry County Council [1970]

I.R. 276. Not only does the Primor/Rainsford jurisprudence derive to quite an extent from that judgment and from

English cases on which it, in turn, relied, but the facts of the case contain some elements similar to the facts of this

case. The basic allegation was that there was negligence in the carrying out of a surgical operation in July, 1962. There

was slightly less than a two year delay before the proceedings were commenced but there was serious delay on the part

of the solicitors for the plaintiff in the prosecution of the action partly due to illness of counsel. The judgment of the

former Chief Justice makes, what I think, is an important distinction between inordinate delay that is understandable and

inordinate delay that is excusable. The court considered the case on the same principles as were subsequently

enunciated in Rainsford. It considered that though the delay was understandable for particular collateral reasons, it was

not objectively excusable. The court then went on to consider whether, as a matter of justice, the case should be

allowed to proceed or should be struck out. In this connection Ó Dálaigh C.J. made the following observation which is

relevant to this case.

“Nor can the court fail to take notice of the fact that, for their evidence of the treatment of their patients,

surgeons and physicians do and must rely on their written records to refresh their memories; that is to say,

medical evidence in modern conditions is largely a matter of written records. Here the records are available. It

should also be said that in an action with regard to a surgical operation the patient rarely knows anything; what

has happened is known only to the defendants.”

Every case is different. Factual resemblances are only of limited value. What is important in this case however and which

was obviously held to be important in the Dowd case was that the written documentation was complete and available. It

appears that that written documentation was sufficient for the plaintiff’s expert, Mr. Clements, and the health board’s

expert, Mr. Lenihan, to form a definitive view. It appears not to be a case therefore where oral evidence is all important.

If there is lack of memory on the part of Dr. Singh and/Dr. Galvin, it is a factor that has to be taken into account but a

balance of justice had to be considered having regard (inter alia) to the degree of its importance. Interestingly, in the

Dowd case the attending nurses were not available as witnesses unlike in this case. Before I leave the Dowd case it is

worth noting that when the plaintiff’s uncle in that case who was a doctor in London was making his own investigations

as to what happened he observed in relation to his enquiries from the house physician at the Mater Hospital, Dublin that

he could not get any information from her except that “these things happen”, words remarkably similar to those allegedly

used in this case. In this particular case also, the evidence on behalf of the plaintiff uncontradicted is that that type of

remark was made to the parents by the hospital when the medical procedures went wrong. It is a highly relevant factor in

considering the balance of justice issue because it would have misled the parents into believing that what happened was

a faultless occurrence of a kind that happened from time to time.

Chronologically, the next case of importance is Rainsford. That is because although it was not reported until 1995 the

judgment of Finlay P. was delivered on the 31st July, 1979. Rainsford, although a High Court decision, has been approved

and followed in several cases. Finlay P. set down certain principles that have stood the test of time. Finlay P. relied in

particular on the Dowd case already cited and on the judgment of Diplock L.J. in Allen v. McAlpine [1968] 2 Q.B. 229

whose opinions in that judgment had commended themselves to Ó Dálaigh C.J. in Dowd. Finlay P. extracted from these

decisions four important principles governing the issue of when an action should be dismissed for want of prosecution. As

set out in the judgment they are as follows:

“(1) Inquiries should be made as to whether the delay on the part of the person seeking to proceed has been

firstly inordinate and even if inordinate, has it been inexcusable. The onus of establishing that delay has been both

inordinate and inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the

proceedings.

(2) Where a delay has not been both inordinate and inexcusable it would appear that there are no real grounds for

dismissing the proceedings.

(3) Even where the delay has been both inordinate and inexcusable the court must further proceed to exercise a

judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding

of the case. Delay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his

part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be

an ingredient in the exercise by the court of its discretion.

(4) Whilst the party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of

his solicitor, consideration of the extent of the litigant’s personal blameworthiness for delay is material to the

exercise of the court’s discretion.”

At this point, I think it appropriate to enter a caveat. It seems clear to me from later decisions to which I will be referring

that the second of those four principles is applicable only to what is technically an order dismissing proceedings for want

of prosecution. It does not mean that, having regard to the provisions of the Constitution, the court does not have an

inherent jurisdiction in certain special cases to hold that it would be unfair in all the circumstances to force a defendant

to defend a case even if there has been no inexcusable delay on the part of the plaintiff. This distinction will become

relevant later on in this judgment. Interestingly, major support for making that distinction comes from two later Supreme

Court judgments of Finlay C.J. (as he then was).

At this point, I am going to break away from the strict chronology because I think it more useful to deal separately and

together with O’Domhnaill v. Merrick and the Toal v. Duignan cases all cited above.

It seems to me more appropriate to treat now of Primor, also cited above. Before I do so, I think it useful to refer briefly

to a High Court decision which is still often cited including in a recent judgment of Clarke J. It is a judgment of the Mr.

Justice Francis D. Murphy delivered the 12th January, 1994 in a case called Hogan v. Jones and reported at [1994] 1

ILRM 512. It was a case where Murphy J. refused on balance to dismiss an action for want of prosecution. The learned

judge expressly followed the principles enunciated by Finlay P. in Rainsford. It is not necessary therefore to go into the

case in any detail. But I think it useful to signpost one or two observations made by the learned judge. Among many other

things, he said, for instance, the following:

“The legal principles applicable in deciding whether the proceedings should be dismissed for want of prosecution (or

indeed pursuant to the inherent jurisdiction of the courts) had been considered in many cases…”

He went on to refer to English and New Zealand decisions but followed that with the following sentence:

“However, the topic is amply covered in this country by a series of decisions of the Supreme Court reaching from

Dowd v. Kerry County Council 1970 I.R. 27 to the unreported decision of the Supreme Court delivered on the 4th

February, 1993 in Celtic Ceramics Limited v. IDA affirming the decision of O’Hanlon J. reported in 1993 ILRM

248.”

The learned judge then goes on to observe that the basic principle followed by O’Hanlon J. and by the Supreme Court on

appeal in Celtic Ceramics was that enunciated by Finlay P. in Rainsford. I cited these passages mainly to demonstrate

that Murphy J. was acutely conscious (as indeed was demonstrated in other parts of his judgment) of the two separate

strands of jurisprudence relating to applications by defendants to have actions against them struck out, namely, the

“dismissal for want of prosecution” and quite separately though sometimes overlapping to an extent, the inherent

jurisdiction of the courts deriving certainly from the Constitution but possibly independently of the Constitution.

The second reason I am briefly referring to this case is the clear expression of approval by Murphy J. of a passage in the

judgment of Cross J. in an Australian case of Calvart v. Stollznow the appeal of which only was reported in [1982]

N.S.W.L.R. 749. I merely cite the end of the passage which reads as follows:

“Considerations of justice transcend all other considerations in these matters. Of course justice is best done if an

action is brought on while the memory of the witnesses is fresh. But surely imperfect justice is better than no

justice.”

It would seem to me that that passage has some relevance to this case in that while there is undoubtedly a lack of

perfection in terms of actual memory by witnesses, there is very solid evidence in terms of written records and without an

identifiable gap. A passage towards the end of the judgment of Murphy J. is also worth quoting. He said the following just

before he made the decision to refuse to dismiss the action.

“Furthermore, in so far as the defendants assert a constitutional right to have the litigation conducted in

accordance with fair procedures, it seems to me that they and all litigants must view the Rules of the Superior

Courts and the relevant legislation including in particular the Statute of Limitations as part of the structure

designed to give effect to the constitutional rights. The constitutional right to fair procedures is protected not only

by the power of the court to dismiss a case for want of prosecution but also by the other interlocutory steps or

procedures which protect either party from undue delay.”

I move now to Primor. Though there are lengthy judgments from Hamilton C.J. and O’Flaherty J., I think it can be

summarised quite briefly. Fundamentally, it is upholding and applying the Rainsford principles. The case, however, is of

some considerable importance not only because it upholds the Rainsford principles but because Hamilton C.J. laid stress

on the inherent jurisdiction of the court to dismiss a claim in the interests of justice “where the length of time which has

elapsed between the events out of which it arises and the time when it comes for hearing is in all the circumstances

(my emphasis) so great that it would be unjust to call upon a particular defendant to defend himself.”

Having made that comment, Hamilton C.J. then goes on to observe that “while the court has such jurisdiction, it is a

jurisdiction which should not be frequently or lightly assumed” in the words of Finlay C.J. in Toal v. Duignan (No. 2) cited

above but at p. 143:

“There can be no doubt that the issue before the court always remains that which was identified by Henchy J. in

O’Domhnaill v. Merrick [1984] I.R. 151 where at p. 157, in the course of his judgment he stated ‘in all cases the

problems of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her

delayed claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she

could not reasonable be expected to defence’.”

I now turn to the other line of authorities to which I have referred starting with O’Domhnaill v. Merrick cited above. The

first observation I would make is that it is clear from this line of authorities and indeed from other cases that the inherent

jurisdiction to strike out a case for delay in certain circumstances in the interests of a defendant may be exercised taking

into account delay in the institution of proceedings. Notwithstanding that that is not a particular issue in this case, I

mention it to emphasise the paramount inherent jurisdiction derived from the Constitution. Furthermore, on the reasoning

of Henchy J. which is supported in later cases by Finlay C.J., there is no separation of powers issue in this regard. As

Henchy J. put it at p. 158 of the report and having explained the structure of the Statute of Limitations

“so construed, the statute does not bear on a plaintiff’s right to sue either within or after the period of limitations.

What it affects is a plaintiff’s right to succeed if the action is brought after the relevant period of limitation has

passed and if a defendant pleads the statute as defence. In such circumstances the statute provides an absolute

defence to that particular action.”

Later cases would seem to indicate that even though it can form part of an application to dismiss for want of prosecution

as indicated by Hamilton C.J. in Primor, the inherent jurisdiction can be exercised independently of the Rainsford

principles. This becomes clear from the two Toal v. Duignan cases already cited and to which I now want to refer. In

Toal v. Duignan (No. 1) Finlay C.J. summarised the position at p. 139 as follows:

“Where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of

time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay,

irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to

dismiss the action.”

Further clarification is contained in Toal v. Duignan (No. 2). It is sufficient to cite paragraphs 3 and 4 of the head note

which read as follows:

“(3) The courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the

length of time which has elapsed between the events out of which it arises and the time when it

comes on for hearing is in all the circumstances so great that it would be unjust to call upon a

particular defendant to defend himself.”

Paragraph (4) of the same head note then reads:

“The existence of culpable negligence on the part of a plaintiff whose claim is being delayed is of considerable

relevance but is not an essential ingredient for the exercise of the courts’ inherent jurisdiction to dismiss a claim.”

Indeed the head note also cites Finlay C.J. saying that to conclude otherwise than that the courts have an inherent

jurisdiction to dismiss a claim brought within a statutory limitation period in certain circumstances is to give the

Oireachtas supremacy over the courts which is inconsistent with the Constitution. In both of the Toal v. Duignan cases,

Finlay C.J.’s judgment was a majority judgment.

How should the principles emerging from the various cases which I have cited be applied to this particular case? It seems

to me that in this regard a distinction should be made between the health board on the one hand and the two individual

doctors who are defendants on the other.

If I am right in my view that there was not inordinate and inexcusable delay then the action must be allowed to proceed

unless it would be fundamentally unfair to any particular defendant because of his special circumstances to have to

defend the action thereby legitimately invoking the inherent jurisdiction of the court which can be exercised even in the

absence of fault on the part of the plaintiff.

I must now consider therefore whether such fundamental unfairness would apply to any of the defendants. I am satisfied

that, in all the circumstances, it does apply to the personal defendants in this case. There is an exceptional factor which

differentiates them from the health board. That is the indemnity issue.

It would be wrong to consider this issue on the basis of probability that these defendants would not be indemnified. That

would be going much too far in my view. Indeed that is why the learned High Court judge went the other extreme and did

not have regard to it at all as he considered that the concerns relating to it were merely contingent. The reality is that

there are all kinds of possibilities. Litigation to compel the Medical Defence Union to meet these claims might prove

successful. Alternatively, there might be an overall settlement that did not prejudice these particular defendants. In the

further alternative if all else failed, the State might provide indemnity to doctors caught in the situation that these

doctors were in. But all of that is speculation. It seems to me that there is a dimension which the learned High Court

judge overlooked in regarding the concern as merely contingent. Quite simply, these two doctors, a long number of years

after the events in question, are now faced potentially at least with huge expense both in relation to paying their own

lawyers and, of course, in the event of the plaintiff being successful in relation to meeting an award of very large

damages indeed and the plaintiff’s costs. In theory, at least, the two doctors themselves might between them or indeed

one only be faced with the entire award of damages on the basis that the health board was merely vicariously liable and

might be held entitled to claim one hundred per cent indemnity. The aspect which I am suggesting that the learned High

Court judge overlooked is the enormity of the worry and upset this would cause and must already be causing these two

defendants no matter what the ultimate outcome might turn out to be. Therefore, in my view, it is fundamentally unfair

that they should have to face a trial and, it is a circumstance in which the court can exercise its inherent jurisdiction

irrespective of the fact that there is not a finding of inordinate and inexcusable delay by the plaintiff.

For this reason, I do not have to consider “the balance of justice” issue in relation to the two doctors if I am correct in

the view which I have just expressed. Even if I did have to consider that “the balance of justice” issue in relation to the

action against them, I would, having regard to the consequences of the indemnity concerned already referred to have

taken the view contrary to the learned High Court judge that the balance of justice in that instance favoured striking out

the action as against those two defendants rather than permitting the plaintiff to continue the proceedings against them.

It would seem to me that the damage to the plaintiff in striking out the proceedings as against the two doctors would be

less than the damage caused to those doctors by compelling them to defend. In expressing this view, I am particularly

having regard to the fact that there would be vicarious liability on the part of the health board at any rate and, therefore,

the plaintiff would not be precluded from pursuing his action against the board.

The health board (now the HSE) is in an entirely different position. It will be indemnified by its own insurance company.

The doctors were employed by a hospital owned by the HSE. If it turns out that the Medical Defence Union escapes

liability to the doctors on foot of insurance, indirectly that will financially affect the HSE but it does not seem to me to

give rise to any ground on which the inherent jurisdiction could be exercised irrespective of fault. Even if I was in favour

of upholding the High Court finding that there was inordinate and inexcusable delay, I am quite satisfied that the High

Court was correct in applying “the balance of justice” issue in favour of the plaintiff in so far as the action was in relation

to the two doctors. It has been said in many of the cases that the degree of the injuries is of course a relevant factor

that can be taken into account. This plaintiff is injured for life in a very serious way and in circumstances in which his

parents cannot be faulted for not investigating the situation earlier. I am satisfied that justice is on the plaintiff’s side if it

became necessary to consider that issue.

There is, in my view, another observation worth making. This particular mishap happened in a relatively small hospital in

Donegal, nevertheless, the doctors maintain that they do not remember anything about the event. This is not really in

dispute but it seems clear that the medical notes are more than adequate. I do not think it is that uncommon for doctors

facing negligence actions in relation to procedures done in busy major hospitals not to rely much on memory but to tend

to rely on the records and notes. This would be so even if there was no question of them leaving the hospital or leaving

the jurisdiction. The fact that these notes enabled Mr. Clements to form an opinion and presumably also enabled Mr.

Lenihan to do so quite apart from other doctors involved would seem to be an important factor in favour of the plaintiff if

balance of justice had to be considered. It does not seem to me that any memory loss on the part of the doctors, as

such, is seriously prejudicial to the board given the comprehensive written material.

It would unduly lengthen this judgment to give a detailed account of Mr. Clements’ report on behalf of the plaintiff. It runs

to nineteen pages but his summary at the end is worth quoting in full:

“Ann McBrearty was pregnant for the first time in 1980. She booked for antenatal care and delivery at Letterkenny

General Hospital. Antenatal care was uneventful. Admitted in spontaneous labour at term, there was clear concern

about the possibility of cephalo-pelvic disproportion for the head was high and free. Mrs. McBrearty’s labour was to

be managed as a trial, an exercise commonly undertaken at that time with a view to managing labour in spite of

the suspicion of cephalo-pelvic disproportion but with ready recourse to Caesarean section.

In this case there was clear indication for Caesarean section at 20.30 and Christopher McBrearty should have been

born by 21.30. In the event, labour was allowed to continue and an attempt was made to deliver the baby by the

ventouse when there was

• incomplete dilatation of the cervix

• a high head

• foetal distress.

This combination of circumstances in 1980/1981 clearly contraindicated an attempt at operative vaginal delivery.

The attempt was incompetent.

Had Christopher McBrearty been born, as he should have been, by Caesarean section before the attempt at

ventouse, he would, on the balance of probabilities, have avoided his handicap.”

On the face of it, by any standards, that is very clear expert evidence being given on the basis of the written material.

I would allow the appeals of Dr. Glynn and Dr. Singh and would order that under the inherent jurisdiction of the court, the

plaintiff’s action against them be struck out though they must still remain co-defendants for the purposes of the

indemnity/contribution claim made against them by the health board otherwise the HSE. In relation to the health board, I

would allow the cross-appeal from the finding of the High Court that there was inordinate and inexcusable delay. Both on

that ground and on the grounds stated by the learned High Court judge, I would take the view that the health board’s

motion should be refused and that, therefore, the health board’s appeal should be dismissed.

The learned High Court judge went on to take into account and, in my view, correctly the contents of the notice of

indemnity and contribution served on Dr. Singh and Dr. Glynn on behalf of the health board. In paragraph 55 of the

judgment, the judge observes as follows:

“In that notice, twelve specific allegations of negligence, breach of duty and breach of contract are made. These

include Dr. Singh’s alleged failure to diagnose the difficulty which the plaintiff’s mother was experiencing during the

second stage of labour, failure to deliver the plaintiff as soon as possible; failure to carry out proper assessment of

the plaintiff’s mother during the course of her second stage of labour; failure to take cognisance of the fact that

the plaintiff’s mother had a narrow sub-pubic arch; failure to take cognisance of the fact that the combination of

long labour and the presence of meconium would place the plaintiff at a high risk of asphyxia and catastrophic

injury; the attempting a ventouse delivery for a second time when the first attempt was unsuccessful; failure to

consider or carry out a caesarean section or to manage the second stage of labour; and causing the permitting

the plaintiff to be subject to hypoxic insult. It can only be inferred that these focused allegations derive from the

report of Dr. Lenihan obtained by the health board. No other proposition has been advanced to the court.”

I would add that that appeared to be accepted on the hearing of this appeal. The judge went on to lay stress also on the

fact that there were no missing relevant notes or records. There are many other points made by the judge in support of

the view he took. I agree with all his points and I am simply summarising some of the principal factors. Paragraph 63 of

the judgment is, however, worth quoting also.

“63. A further unique feature distinguishes this case even despite the very substantial time elapse. Not only are Dr.

Singh and Dr. Glynn both alive, but the nursing records include a narrative of events which, although not full, by

the standards of today, contain the midwives’ records in sequence over the period in question. There is a labour

record as to the facts and circumstances of the plaintiff’s birth. Most remarkably, it has not been suggested that

even one of the persons involved in the events in question is not available or had died, despite the very long period

of 26 years time elapse. Indeed, all but one of the nursing staff involved in the case are actually still working in

Letterkenny General Hospital. It has not been submitted that any one of the named nursing or midwifery staff is

unavailable to give evidence. While the court has been informed by counsel on behalf of the first-named defendant

that interviews have been conducted with the nurses and midwives, no evidence has been adduced by the Health

Board or any one of the moving parties in relation to any question of specific prejudice or lack or recollection by

the other identified participants in the events apart from the two medical defendants.

64. It is also noteworthy that the notes and records have not inhibited the furnishing of reports to the plaintiff

(which have been exhibited) by Dr. Philip Anslow, Consultant Neuro-radiologist, Professor Alan Hill, Professor of

Neurology, Dr. Dewi Evans, Consultant Paediatrician or Dr. Roger Clements, Consultant Obstetrician and

Gynaecologist. The absence of any application asserting prejudice on the grounds of the first-named defendant

until the 31st May, 2007 has already been referred to. Finally, it is noteworthy that the only assertion of prejudice

comes from Dr. Singh himself, not a professional expert retained by him.”

MacMenamin J. went on to comment as follows in paragraph 75 of the judgment:

“In the eyes of the consultants who have been retained, the descriptions of the factual issues are apparently

sufficient to allow detailed assessments to have been made as to what is said to have occurred. No complaint has

been made that the records are inadequate for this purpose by the experts consulted by the plaintiff or

apparently, any expert retained by the first-named defendant. No expert consultants have been relied on by the

medical defendants to make out their case. Apparently, all the relevant witnesses to the fundamental claims are

available …”

There is one other aspect of the law with which I should briefly deal. It is suggested that in the context of dicta by

Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 that Rainsford and Primor need either revision or what Clarke J.

characterised in another case as “recalibration” the general effect of which would be to make the courts much stricter

about delay than they would formerly have been. The High Court judgments in which these views have been expressed

derive in the main from Gilroy v. Flynn which in turn derives from the European Convention of Human Rights Act, 2003

with particular reference to judgments on delay by the European Court of Human Rights. What is important to reiterate is

that the well-established jurisprudence deriving from Rainsford (a High Court decision approved of by this court) and

Primor a decision of this court remain the law. They have stood the test of time. As far as I am aware and as far as

counsel in this case appear to have been aware there is no decision of the Court of Human Rights on any principles to be

applied in striking out proceedings on grounds of delay. It is, of course, true that it is important that courts take to heart

the old adage “delay defeats justice” and be vigilant about culpable delay especially having regard to the Convention.

There is a discretion vested in the judge that may legitimately be exercised in different ways. But there would appear to

be no justification for any major departure from the established and well tried principles. That is simply a footnote to the

views already expressed and the orders which I have advocated.