The Court of Appeal has halted, for reasons of delay, a profoundly disabled man’s case over alleged negligence in the circumstances of his birth at a Co Donegal hospital more than 30 years ago.
Paul Gallagher’s case was initiated in 2007 and his lawyers, in opposing the HSE’s bid to have it dismissed over delay in prosecuting it, said the delay was for reasons including neither his parents nor solicitor had funds to get expert medical reports.
They sought more time to do so, saying the solicitor had spent €20,000 on the litigation so far and would see it to finality.
Giving the three judge court’s judgment this week rejecting Mr Gallagher’s appeal over a High Court order granting a HSE bid to dismiss the case for delay, Ms Justice Caroline Costello said Mr Gallagher’s financial difficulty was a “very genuine and significant” explanation for inability to progress his case but did not excuse the inordinate delay.
The court was satisfied it would not now be possible to conduct a fair trial affording the defence the basic requirements of fair procedures, she said.
If a plaintiff cannot progress a case for lack of funds, the case “cannot continue indefinitely without progressing or concluding” and the solicitor’s assurances as to future funding did not really assist in meeting this difficulty.
Even now, the plaintiff is far from being in a position to present his full case and it seemed there could be no possibility of a trial less than 35 years after the events in question, she said.
Blame
While some small degree of blame for delay could be attached to the HSE, that was not such as to disentitle it from an order halting the case, she said, and the interests of justice required that the case be dismissed.
Mr Gallagher, of Ballyraine Road, Letterkenny, was born at Letterkenny General Hospital on December 12th, 1986. It was alleged he suffered a catastrophic injury immediately before, or shortly after, his birth as a result of which he is profoundly disabled with cerebral palsy, cannot speak or walk, and is wholly dependent on his parents, who had in 1998 instructed Sean Boner & Co Solicitors to advise on his behalf.
The solicitor, a sole practitioner, made enquiries concerning a possible claim and took preliminary advice in 2001 from Dr Roger Clements, a consultant based in England.
A personal injury summons was issued in March 2007, just before the limitation period for bringing the proceedings was due to expire. Various other steps were taken before a HSE motion was issued in July 2014 to strike out the case on various grounds including delay. That motion was adjourned in April 2015 to explore mediation and the mediation was adjourned several times to await a report from Mr Clements.
Mediation
After a further adjournment was sought on January 20th 2016, a day before the mediation was due to resume, the HSE discontinued the mediation process and its strike out motion was ultimately heard in late January 2017.
The High Court held the relevant period of delay was eight years and seven months between the issue of the summons in March 2007 and the initial hearing of the strike out motion. It noted the plaintiff still lacked the necessary medical evidence to prosecute his claim, had no funds to pay for the necessary reports and the defence still did not know the case it had to meet.
The High Court adjourned the motion for three months to allow the plaintiff assemble the necessary evidence. When it reconvened, it said what was before it did not amount to detailed particulars of the alleged negligence and made an order dismissing the case.
