THE COURT OF APPEAL
Neutral Citation Number:  IECA 27
Appeal No. 2014/578
[Article 64 Transfer]
The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
JUDGMENT of the Court delivered on the 19th day of February 2015 by Ms. Justice Mary Irvine.
1. This is an appeal against the judgment and order of the High Court (Cross J.) delivered on 23rd July 2012, in which he refused the defendants’ application to dismiss the plaintiff’s claim on the grounds of inordinate and inexcusable delay. The within appeal falls to be determined by this Court pursuant to a direction of the Chief Justice (with the concurrence of the other members of the Supreme Court) further to the provisions of Article 64 of the Constitution.
Relevant background facts
3. The plaintiff purported to deliver a statement of claim on 1st June 2007 wherein she identifies some eighteen instances of abuse allegedly perpetrated by Gardaí. These include allegations of arrest and searches of her person, some of which were purportedly carried out when exercising their powers under the Misuse of Drugs Act 1997, as amended. She maintains that these incidents were motivated by spite and malice and were intended to humiliate her. The plaintiff contends that each arrest and detention was unlawful and amounted to false imprisonment. Her final claim relates to an incident which she maintains occurred in November 2000 when she was allegedly subjected to an unlawful and negligently performed highly invasive and terrifying internal examination which left her bleeding and requiring further medical treatment. All of these events, she maintains, have caused her great anxiety, loss of reputation, humiliation as well as other loss and damage.
4. The defendants’ solicitors refused to accept delivery of the Statement of Claim in circumstances where a Notice of Intention to Proceed, which had been served on 8th February 2006, had expired. As a result a further notice of intention to proceed was served on 30th August 2007 and yet another on 3rd September 2007. However, notwithstanding the delivery of these documents the statement of claim was never served.
5. On 19th October 2009 the defendants brought an application seeking to dismiss the plaintiff’s proceedings pursuant to O. 27 r. 1 of the Rules of the Superior Courts and/or O. 122 r.11 thereof and/or pursuant to the court’s inherent jurisdiction to dismiss the claim on the grounds of inordinate and inexcusable delay.
6. At the hearing of that motion the plaintiff’s solicitor sought to excuse the delay in the prosecution of the proceedings by relying upon a number of factors, namely:
ii. That the plaintiff was out of contact because she had moved address twice between the time the plenary summons was issued and May 2007.
iii. That the litigation file had been handed to another colleague within the same firm of solicitors after which it had been mislaid and then inadvertently closed when that solicitor left the firm.
8. The statement of claim was delivered on 21st January 2010. A notice for particulars was then raised by the defendants on 4th May 2010 and a defence delivered on 12th October 2010. In their defence, the defendants admitted that records had been located detailing the detention of the plaintiff on eight occasions between August 1998 and February 2001. However, they went on to deny every allegation of impropriety and wrongdoing alleged against them in the Statement of Claim.
9. The plaintiff’s solicitors replied to the defendants notice for particulars on 18th January 2011 and later served notice of trial on 21st July 2011. Given that the nature of the claim advanced by the plaintiff included an allegation of assault, that notice of trial sought that her action be determined by a judge sitting with a jury. Consequently, the proceedings appeared in the jury list to fix dates on 12th October 2011.
10. It is common case that the Notice of Trial was struck out on 12th October 2011 due to the fact that neither solicitor nor counsel attended the list to fix dates on the plaintiff’s behalf. While the defendants were represented before the court it remains unclear as to whether or not they asked the court to strike out the notice of trial or whether the court, of its own motion, decided upon such an approach. It is however accepted that in the aftermath of the event that the defendants’ solicitor did not notify the plaintiff’s solicitor as to what had occurred.
11. The next step in the proceedings was taken by the defendants on 23 May 2012. On that date they issued their second notice of motion seeking to dismiss the plaintiff’s claim on the grounds of inordinate and inexcusable delay. That application was heard by Cross J on 23rd July 2012 and it is his judgment and order made on that motion that is the subject matter of the within appeal.
12. This Court has been furnished with a note of the ex tempore judgment of the learned High Court judge. That note, taken at face value, would suggest to the reader that the trial judge had confined his consideration to one issue, namely, whether or not there had been inordinate and inexcusable delay during the period post dating the order of Quirke J made on 14th December 2009. However, on the hearing of this appeal, counsel for the plaintiff maintained that Cross J. had in fact considered the entire period of delay, even though in pronouncing his decision he made reference only to the fact that he was satisfied that the plaintiff had established a valid excuse for the delay which had occurred subsequent to the hearing of the first motion, that being a mistake on the part of her solicitor which had resulted in the notice of trial being struck out for non attendance .
Evidence before Cross J.
14. Ms. Duchene, for the purposes of demonstrating to the court the delay in the prosecution of the action, then set out a chronology of events post dating the order of Quirke J. on 14th December 2009.
ii. 1st March 2010: Plaintiff’s solicitors demand delivery of the defence
iii. 4th March 2010: Defendants serve a notice for particulars.
iv. 12th October 2010: The defendants deliver their defence.
v. 24th November 2010: The defendants send twenty one day warning letter in
regarding the defendants outstanding notice for
vii. 18th January 2011: Plaintiff replies to the defendants notice for particulars.
viii. 26th January 2011: Defendants call for the service of a notice of trial.
ix. 21st July 2011: Notice of trial is served for a trial before a judge sitting
with a jury.
x. 12th October 2011: The proceedings appear in the jury list fixed dates.
Notice of trial is struck out as the plaintiff fails to
xi. 23rd May 2012: Defendants issue second motion to dismiss on the
grounds of delay.
16. In his replying affidavit, Mr. Fitzpatrick, stated that it had taken nine months for him to deliver a reply to the defendants notice for particulars due to the fact that he had had to meet with his client to seek clarification of certain matters raised therein and also to request her to obtain certain medical information from her gynaecologist in circumstances where she had advised him that she had been unable to have children and he felt clarification was required as to whether this might have been as a result of the internal examination complained of. He then served a notice of trial on 21st July 2011 seeking that the trial be heard before a judge sitting with a jury.
17. Mr. Fitzpatrick sought to excuse the delay following the service of the Notice of Trial on 21st July 2011 by reference to a misunderstanding on his part as to the appropriate procedure to be adopted when seeking to obtain a trial date for this type of action. He said that he thought the procedure was the same as that which applied in respect of personal injuries actions where, following the service of a notice of trial, a date could be obtained by applying to the judge in charge of the list once proofs had been complied with. He was unaware that the case would appear in a list to fix dates. Consequently, he did not know the case was before the court in the jury list to fix dates on the 12th October 2011 and he complained that after the notice of trial was struck out that he was never informed of this fact. He said that had he been made so aware he would have immediately arranged to issue a fresh notice of trial so as to bring the matter on for hearing.
18. As to the prejudice alleged by the defendants arising from Dr. Maloney’s death, Mr Fitzpatrick advised that Dr. Maloney was possibly close to eighty years of age when he attended the Garda station on 17th November 2000 and that consequently he may not, regardless of any delay, have been available to give evidence at the trial. He also stated that the plaintiff had been so traumatised by Dr Moloney’s examination that another doctor, Dr. Declan Lawless, was called to the station later that night and that he would be available to give evidence, thus mitigating any potential prejudice as might arise from Dr Moloney’s unavailability.
20. In relation to the excuses proffered for the relevant delays, counsel contended that:
(ii) the explanation proffered for the 10 month delay for the delivery of the reply to the defendants notice for particulars, i.e. the procurement of medical evidence, did not withstand scrutiny as no medical issue had been raised in the notice,
(iii) in relation to the final period of delay, counsel submitted that the plaintiff must take responsibility for the error of her legal team. That error in any event provided no explanation for the failure to call the case on for trial and there was no indication as to when, if ever, in the absence of the defendants’ motion, that would have occurred.
22. In addition, counsel claimed that the defendants had suffered both general and particular prejudice arising from the delay. Counsel accepted that Dr. Maloney’s death had occurred in 2007 and had only been discovered after the judgment of Quirke J. However, he highlighted the key role of Dr. Maloney in relation to the issue of consent to the internal examination complained of by the plaintiff and to her claim that this had been negligently carried out as a result of which she had sustained some bleeding and had required medical attention.
23. Finally, counsel emphasised the “tightening up” of the court’s attitude to delay which was alleged to be inordinate following the decision in Comcast v. Minister for Public Enterprise (Unreported, Supreme Court, 17th October, 2012).
24. In response, counsel for the plaintiff, Mr. Treacy S.C., maintained that Cross J. had indeed considered the delay that had occurred throughout the entire proceedings. He highlighted the chronology of events that had been handed up by counsel for the defendant during the hearing and he asserted that the judge had engaged with counsel in relation to the delay from the inception of the claim.
25. Counsel submitted that the plaintiff’s legal team had made a procedural error as a result of which the notice of trial had been struck out. He submitted that the defendants, who were in attendance when the court made this order, ought not to be allowed to rely upon any delay resulting therefrom, as they had not advised the plaintiff’s solicitors as to what had occurred. Mr Treacy submitted that had the defendants made the position known to Mr Fitzpatrick the high likelihood is that he would have immediately endeavoured, by whatever means was necessary, to obtain a date for the hearing.
26. Mr Treacy also argued that the defendants should not be entitled to rely upon Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms in an attempt to reconfigure the law in that no reliance had been placed upon the Convention and it had not formed part of the courts consideration when it had dealt with the motion at first instance.
27. In relation to where the balance of justice in this case lay, counsel argued that such part of the defendants submission as related to plaintiffs likely whereabouts or which were destined to undermine her stated intention to progress her claim, were more suited to an application to dismiss a claim as being vexatious or an abuse of process rather than one based on delay
28. In considering where the balance of justice lay, Mr Treacy submitted that the court must take into account the extraordinarily serious nature of the plaintiff’s claim and the public interest in proceedings concerning an allegation that a female member of the public had been subjected to a malicious, unwarranted and unlawful internal medical examination.
29. Counsel for the plaintiff further disputed the particular prejudice alleged by the defendants arising from the death of Dr Maloney in circumstances were a second doctor, Dr Lawless, was available to give evidence on behalf of either party. He further highlighted that, as was apparent from the defence, the defendants had available to them documentary records upon which they could rely in respect of the majority of the complaints made by the plaintiff.
Principles to be applied.
31. The first matter of importance in relation to this jurisdiction is that the onus of proof to establish that the delay complained of has been both inordinate and inexcusable lies on the party who seeks to have the proceedings dismissed, as was advised by Finlay P. in Rainsford v. Limerick Corporation  2 ILRM. If the court is satisfied that the delay can be so described it must then decide whether the balance of justice is in favour of or against the case proceeding. This is a difficult task because it involves, as was stated by Henchy J. in O’Domhaill v. Merrick  IR 151, the court in trying to “strike a balance between a plaintiff’s need to carry on his or her delayed claim against the defendants basic right not to be subjected to a claim which he or she could not reasonably be expected to defend”.
32. The principles which govern the circumstances in which proceedings may be struck out for delay were laid in some detail by Finlay P. in Rainsford and were approved of by the Supreme Court in Primor plc v Stokes Kennedy Crowley  2 I.R. 499 where they were expanded upon by Hamilton C.J. in the following manner: -
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:
(ii) whether the delay and consequent prejudice in the special facts of the case I such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant - because litigation is a two-party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the way to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in(vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business.”
34. It is also important to note, in the context of the Draconian nature of the type of relief claimed, that the use of this jurisdiction is not intended to be a punishment for a plaintiff’s delay but rather to ensure that justice is done, as was advised by O’Flaherty J. in Primor where he stated at p.516 that:-
37. The courts’ inherent jurisdiction to dismiss a claim where the length of time which has elapsed between the events giving rise to the claim and the date at which the action comes on for trial may only be exercised by the court, in the absence of culpable delay on the part of the plaintiff, where the delay is so great that it would be unjust to ask the defendant to defend the claim. As Henchy J. stated in O’Domhnaill v. Merrick:-
38. More recently, the constitutional imperative to end stale claims so as to ensure the effective administration of justice and basic fairness of procedures has been emphasised in a number of judgments dealing with cases of delay. In addition, it must be recalled that Article 34.1 of the Constitution requires the courts to administer justice and that Article 40.3.2 guarantees the citizen the right to protect their good name. Quite independently of guarantees of basic fairness of procedures, these specific constitutional obligations also pre-suppose that litigation will be conducted in a timely fashion. If, to adopt the graphic phrase of Henchy J. in O’Domhnaill, justice is put to the hazard in a given case by undue and excessive delay, how, then, can the courts fulfil their constitutional mandate under Article 34.1? Moreover, where - as in the present case - the right to a good name of individuals is potentially put at issue by the litigation, the effective protection of that right as guaranteed by Article 40.3.2 requires that such claims be adjudicated upon within a reasonable time.
39. In Quinn v Faulkner t/a Faulkner’s Garage and another  IEHC 103 Hogan J. criticised the courts’ prior tolerance to inactivity on the part of litigants when he stated:-
42. Further consideration was given to the extent to which the Primor principles might need revision in Michael McGrath v. Irish Ispat Limited  IESC 43 where Denham J. concluded that the court’s discretion to decide whether it was in the interests of justice that a claim be dismissed for want of prosecution was to be exercised both in accordance with settled constitutional principles and “in light of developing European jurisprudence on reasonable time”.
43. In Stephens v. Paul Flynn Ltd  IEHC 148 and Rodenhuis & Verloop BV v. HDS Energy Ltd  1.I.R. 611, Clarke J. also questioned whether there should be a recalibration or tightening up of the criteria by reference to which the actions of the parties might be judged. He stated that while the overall test and applicable principles remain the same, the application of those principles might require some typing up to avoid excessive indulgence: At para.11 of his judgment he stated as follows:-
(ii) Reasonableness is to be assessed by reference to the circumstances of the case, its complexity, the conduct of the applicant and of the relevant authorities and the importance of what is at stake.
(iii) The state is obliged to organise its legal system to comply with the reasonable time requirement of Article 6.
Scope of appeal from the decisions of the High Court
46. In addition, Article 64.3.1 also permitted the Chief Justice with the concurrence of the other members of the Supreme Court to transfer certain categories of existing appeals to this Court. Where the cases were so transferred, then this Court was to have “jurisdiction to hear and determine each appeal the subject of that direction.” As the present appeal was so transferred to this Court pursuant to Article 64.3.1, it follows, accordingly, that the appellate jurisdiction of this Court vis-à-vis decisions of the High Court is co-extensive with that previously enjoyed by the Supreme Court pursuant to the (then existing) Article 34.4.3.
47. What, then, was that jurisdiction so far as decisions of this kind were concerned? As will next be seen, there are, in fact, two different strands of the Supreme Court authority on this point. We are accordingly obliged for present purposes - as the Supreme Court itself, but for the transfer of this appeal to this Court pursuant to Article 64.3.1 would have been obliged - to choose as between these divergent lines of authority.
48. In any consideration of this question, the starting point remains the decision of the Supreme Court in In bonis Morelli, Vella v. Morelli  I.R. 11, a case where the scope of that Court’s Article 34.4.3 jurisdiction was fully examined by both Walsh and Budd JJ. That case was a probate action where it was contended that a particular will had been irregularly executed. This claim was rejected by the High Court and the defendants (but not the plaintiffs) were awarded their costs. The plaintiffs appealed this costs order, contending that by reference to established practice, an unsuccessful party was entitled to be paid his or costs out of the estate where there were reasonable grounds for the litigation. The defendants contended in response that a decision of this kind should not be interfered with unless the trial judge erred in principle in some manner in the way in which his discretion was exercised.
49. In his judgment, Walsh J. traced the error in principle approach back to the practice which had emerged following the enactment of s. 52 of the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”). Section 52 of the 1877 Act had provided that:
51. Having described this practice, Walsh J. then examined the circumstances in which the old Court of Appeal entertained appeals against costs order, even in the absence of leave pursuant to s. 52 of the 1877 Act. While it might have been thought that a statutory court of this kind could never entertain such appeals in the face of a statutory requirement that leave be obtained, a practice had nevertheless evolved whereby such appeals were, in fact, entertained in cases where it was shown that the trial judge had erred in principle. Walsh J. then explained ( I.R. 11, 20-21):
53. As Walsh J. then explained ( I.R. 11, 21):
That is not to say that this Court will not give great weight to the views of the trial judge and to any reasons stated by him for the course he has taken with regard to costs…”
56. As it happens, in the aftermath of Vella, there were a number of authorities dealing with applications for security for costs under s. 390 of the Companies Act 1963 which confirmed that the Supreme Court was free to exercise its own discretion in the matter and that it was not confined to those cases where it could be shown that the High Court judge had erred in principle. Some of this case-law can now be briefly mentioned.
57. In Jack O’Toole Ltd. v. MacEoin Kelly Associates  I.R. 277, 283 Finlay C.J. dealt with this argument in the following terms:
61. In the High Court Morris P. struck out the proceedings on the ground on inordinate and inexcusable delay. The relevant defendants had suffered prejudice in that the supervising engineer who was responsible for safety at the time had since died. This decision was upheld by the Supreme Court, with Lynch J. stating:
63. The matter was considered again by the Supreme Court in another undue delay case, Stephens v. Paul Flynn Ltd.  IESC 4,  4 IR 31. In that case, Clarke J. had struck out the proceedings on the grounds of inordinate and inexcusable delay. In the Supreme Court Kearns J. dismissed the appeal, saying:
65. A majority of the Supreme Court (Geoghegan and Macken JJ., Kearns J. dissenting) dismissed the appeal. On the question of the scope of review, Kearns J. adhered to the view which he had expressed in Stephens. Having quoted the words of Lynch J. in Martin (which has been quoted above), Kearns J. continued:
69. This is issue was further considered, albeit briefly, by MacMenamin J. in Lismore Builders Ltd (in Receivership) v. Bank of Ireland Finance Ltd.  IESC 6. That case concerned an appeal from the decision of Quirke J. in the High Court dismissing the plaintiff’s claim on the grounds of inordinate and inexcusable delay. Delivering the judgment of the Supreme Court, MacMenamin J. dealt with the circumstances in which an appellate court might review an order made by a High Court judge in the exercise of his discretion in the following manner: -
71. So far as the balance of authority is concerned, it must be noted that neither judgments in Martin or Stephens had referred to the earlier judgment of a five member Supreme Court in Vella where the point had been examined in almost exhaustive detail. Nor was there any reference to Jack O’Toole Ltd., another judgment of a five member Supreme Court where the issue received extensive consideration.
72. It is not, with respect, easy to see how the dictum of Lynch J. in Martin can be satisfactorily aligned with these earlier decisions. While different views were expressed in Desmond, the approach of Geoghegan J. was approved in unequivocal terms by the Supreme Court’s most recent decision in Lismore Homes.
73. This view is, we think, also supported by first principles. First, while the scope of the right of appeal conferred by the Constitution from decisions of the High Court to the Supreme Court prior to the establishment of this Court in October 2014 was not defined by Article 34.4.3, it may be assumed that it was intended that this right of appeal would be an effective one. As O’Higgins C.J. said in The People (Director of Public Prosecutions) v. O’Shea  I.R. 384, 406:
75. Second, the very structure and language of Article 34.4.3 pre-supposed that the right of appeal from the High Court to the Supreme Court would be a full appeal, subject only to limitations necessarily inherent in the appellate process. If it were thought desirable that the scope of that appeal should be restricted in some fashion then, as both Walsh and Budd JJ. pointed out in Vella, this would have to be done by means of legislation to the this effect enacted by the Oireachtas which sought to “regulate” that jurisdiction in the manner expressly permitted by Article 34.4.3. An ex ante limitation on the scope of that jurisdiction of the kind suggested in Martin requires to be imposed by legislation and not by judicial decision.
76. Third, in any event, as Geoghegan J. pointed out in Desmond, the decision to strike out proceedings could not properly be described as a discretionary decision in this sense. Questions such as whether, for example, the delay has been inordinate or inexcusable or whether the delay has been prejudicial to the defendant are mixed questions of law and fact, not presenting discretionary questions as such.
77. Fourth, the reason for any supposed restriction on the scope of appeal in this manner is not immediately apparent. There are, of course, limitations inherent in the appellate process, as any court hearing the appeal is denied, for example, the benefit of hearing and seeing witnesses, so that the court of trial is much better placed to assess credibility: see generally the judgment of Henchy J. in Northern Bank Finance Co. v. Charlton  I.R. 149, 190-195.
78. Nevertheless, in cases of the present kind where the evidence is invariably set out on affidavit and where much generally turns on the documentary record, it is hard to suggest any reason why the merits of the High Court decision on this question should not be fully re-considered on appeal, given that this Court (or, as the case may be, the Supreme Court) will be in as a good a position as the court of trial to arrive at the appropriate conclusion: see, for example, the comments of McCarthy J. in Jack O’Toole Ltd.  I.R. 277, 288. It is, of course, entirely accepted that the views of the trial judge will carry great weight. Yet if the interests of justice require that a different conclusion should be reached on appeal, it would be wrong and purely formalistic to suggest that that first instance should remain invulnerable to appeal simply because no error of principle was disclosed.
Conclusions on the scope of appeal
81. Having considered the submissions of the parties and the evidence that was before him when he made his decision, the court is satisfied that Cross J. fell into error when he concluded that the plaintiff had not been not been guilty of inordinate and inexcusable delay, a finding without which an application to dismiss on grounds of delay must fail. While he may well have engaged with counsel in relation to all of the delay since the commencement of the proceedings, the court is satisfied that when he came to make his decision he incorrectly focused entirely on the delay post dating the order of Quirke J. in December 2009 or alternatively attributed insufficient weight to a number of factors namely:
(ii) the conclusions of Quirke J. on that application and the nature of the order which he made,
(iii) the direction given by Quirke J. that the plaintiff should pursue her claim with expedition and
(iv) the fact that there were three separate periods of substantial delay post 14 December 2009.
83. A brief analysis of the overall delay in these proceedings is warranted to explain the Court’s conclusions.
84. Given that the complexity of the proceedings is a factor for the court, not only in considering whether or not delay is inordinate and inexcusable, but whether having regard to the importance of the issues raised, the balance of justice would favour allowing the action proceed, it is relevant to identify the particular claims being put forward by the plaintiff.
85. The first claim advanced on the plaintiff’s behalf, relates to an assertion that she was maliciously harassed by members of An Garda Síochána who subjected her to a series of arrests on innumerable occasions between 1998 and 2000. She maintains that she has a claim for assault, battery and false imprisonment in relation to each of such events as are set forth in her statement of claim.
86. The second aspect of the plaintiff’s claim relates to an alleged assault and breach of her right to bodily integrity arising from the fact that whilst in Garda custody she was, at the defendants’ direction, allegedly and without justification subjected to an internal physical examination by a Dr. Maloney, in November 2000. Implicit in the plea relating to this claim is the fact that she did not consent to the procedure and that it had been represented to her that the defendants were entitled to remove her undergarments and carry out such an examination without her consent for the purpose of carrying out a drugs search.
87. The final claim made is one allegedly arising from negligence concerning the manner in which the aforementioned internal examination was conducted by Dr. Maloney, for whom she maintains the defendants are vicariously liable. She contends that he inserted a long probe like instrument in a manner that caused her internal bleeding and that this resulted in her receiving medical treatment at Clonmel hospital, where she was admitted some hours later.
88. From the evidence that was before the Court it is clear that the plaintiff had engaged a solicitor, at the very latest, by early January 2001 given that he wrote two letters on her behalf dated the 16th day of January and the 7th day of February 2001 setting out all of the complaints which later became the subject matter of the present proceedings. Further, as appears from the correspondence exhibited on this application, as of May 2001 the plaintiff’s solicitor was in possession of all of his client’s custody records which he had sought in a letter of 16 January 2001.
89. Against the aforementioned backdrop, it took a further two and a half years for the plaintiff to deliver what can only be described as the sparsest possible plenary summons. This was not issued until 16th July 2003. No further step was taken to advance the proceedings in 2004, 2005 or 2006. Then, on 1 June 2007, more than six years after the events complained of, the plaintiff’s solicitors endeavoured to serve a statement of claim. Having had the service of that document rejected on the basis that no notice of intention to proceed had been served, it is remarkable that it was not served expeditiously following the service of a further notice of intention to proceed in September 2007. The statement of claim had still not been served two years later even though it was clearly available for service.
90. In circumstances where the statement of claim had not been delivered six years following the delivery of the plenary summons the defendants issued their first motion to dismiss the plaintiff’s proceedings on the grounds of delay which was returnable for hearing in October 2009. It is hardly surprising that in light of the time that had elapsed between the events the subject matter of the claim and the bringing of that motion that Quirke J. came to the conclusion that the plaintiff had been guilty of inordinate and inexcusable delay. This was not a case in which the plaintiff had maintained that the delay in the delivery of the statement of claim had been because of the complexity of the proceedings or due to the fact that she had been frustrated or delayed, as often happens in more complex proceedings, due to any number of factors including the disappearance of witnesses, documents or the unavailability of expert evidence.
91. From the nature of the order made by Quirke J, whereby he actually dismissed the plaintiff’s claim on terms that she deliver her statement of claim including full particulars by the 21st January 2010, it could not have been clearer that the court was resolute that no further delay would be tolerated. Indeed, it is not disputed that the trial judge actually stated as much when he warned that the plaintiff’s claim had to be pursued thereafter with all due expedition.
92. Far from pursuing her claim with expedition, the plaintiff still had not brought her action to trial some two and a half years later when the defendants issued their second motion to dismiss her claim on the grounds of delay. The court is satisfied that this period of delay, when viewed against the backdrop of the earlier delay in the proceedings prior to the order of Quirke J can only be described as inordinate and inexcusable.
93. In respect of the aforementioned two and a half years, three significant periods of delay emerge. The first is a ten month delay in replying to a notice for particulars served by the defendants on 4th March 2010. In his effort to explain this delay, Mr. Fitzpatrick advised that he had received a draft reply to that notice from counsel on the 18 May 2010. However, because he was then advised by his client that she had suffered significant gynaecological problems and as a result would not be able to have children he wanted her to clarify with her doctor the cause of her condition prior to asserting any nexus between this state of affairs the assault of November 2000.
94. However, as counsel for the defendants pointed out in the course of his submissions, the defendant’s notice for particulars had not raised any query concerning any injury sustained by the plaintiff. Accordingly, while Mr. Fitzpatrick may have wanted to investigate the potential nexus between the plaintiff’s inability to have children and the assault, that does not provide a valid excuse, having regard to the earlier history of the proceedings, for failing to deliver the replies that were to hand in May 2010 until 18 January 2011, some eight months later.
95. The second period of delay relates to service of the notice of trial. In this regard, the defendants’ solicitors, having received the replies to particulars the previous week, called for the service of a notice of trial by letter dated the 26th of January 2011. A further period of six months was allowed to elapse before the notice of trial was ultimately delivered on the 21st July 2011. While at para. 13 of Mr. Fitzpatrick’s affidavit of the 19th July 2012 he maintained that his client had at all times remained anxious to pursue her claim and had been available to render assistance and deal with any enquiries in relation thereto, the timeline of the proceedings would suggest otherwise.
96. Finally, there is a 10 month period of delay between the service by the plaintiff of the notice of trial on 21st July 2011 and the 23rd May 2012 when the defendants issued their second motion to dismiss the claim on grounds of delay.
97. Mr. Fitzpatrick sought to excuse this period of delay by reference to his misunderstanding as to the procedure which pertained for obtaining a date for a jury action. He stated that he thought that the procedure was the same as that which applies in a personal injuries action; namely that an application is made to the judge in charge of the personal injuries list when one is ready to seek a date. He did not understand that this, being a jury action, would be listed, following the service of the notice of trial, in the next jury list fixed dates. This is why nobody attended on the plaintiff’s behalf when the case was struck out for non-attendance at the call over of such list in October 2012.
98. While Mr. Fitzpatrick complains that the defendants solicitors had not appraised him of the fact the notice of trial was struck out for non attendance - a sentiment with which this Court is sympathetic - he nonetheless fails to explain in his affidavit why, at no stage, during the ten month period prior to the issue by the defendants of their second motion to dismiss the claim, he had made no application to obtain a date for the trial of the action. While in the course of the hearing on this appeal is was mooted that counsel’s advice on proofs was outstanding as a potential reason for why no date had been obtained for the action, there is no mention of this fact at all in Mr Fitzpatrick’s affidavit notwithstanding the fact that in respect of other periods of delay he refers to his engagement with counsel.
99. It is, of course, completely understandable that a solicitor might not understand the procedure for obtaining a date for a jury action, particularly given that such actions are not regularly dealt with otherwise than by specialist practitioners. However, the fact that the notice of trial was struck out is somewhat of a red herring as the plaintiff took no step to obtain a date for the hearing between the date of the service of the notice of trial and the issue of the defendants’ second motion.
100. There is authority for the proposition that where a plenary summons is issued close to the expiration of the limitation period provided for the bringing of a particular type of claim, that there is an onus on that plaintiff to proceed with greater diligence or with more expedition than had they commenced the proceedings at an earlier date. As Henchy J. said in Sheehan v. Amond  I.R. 235:
102. The delay in the prosecution of this claim is hard to understand or excuse. On any analysis, this claim is not a complex one. Counsel for the plaintiff has accepted that this is so. It is a claim which effectively rests upon the credibility of the plaintiff’s own evidence when compared to the evidence that may be advanced by the defendants in relation to certain specified events. Such records as the plaintiff identified that she needed to pursue her claim were forwarded by the defendants to her solicitor in May 2001 and the relatively straightforward nature of this claim is perhaps evidenced by the fact that no formal application for discovery has ever been pursued by the plaintiff. Further, she has not considered it necessary to seek any particulars arising from the defence which was delivered by the defendants on 12 October 2010.
103. It is also, in this Court’s view, extremely material that every reason advanced to excuse the delay in these proceedings, relates to matters concerning the plaintiff and her own advisors. This is not a case where the plaintiff maintains that her inability to pursue the action has been thwarted by the actions of the defendants or those of third parties such as witnesses as to fact or expert witnesses. Further, from the affidavit of Mr Fitzpatrick it is clear that the plaintiff has at all times, at least since the order of Quirke J. in December 2009 been available to give instructions in relation to her claim.
104. Finally, it is probably worthy of comment that at no stage subsequent to the order of Quirke J. did the plaintiff at any stage write to the defendants solicitors indicating that they were encountering any difficulties in progressing the case for trial.
105. Overall, Mr Fitzpatrick has failed to satisfy this court that Cross J. had evidence before him sufficient to conclude that the totality of the delay in the proceedings was anything other than inordinate and inexcusable. This is particularly so in light of the fact that some 2 ½ years previously Quirke J had already come to that conclusion.
Balance of Justice
107. The first matter to be addressed by a court when considering where the balance of justice lies is the extent to which the defendants would likely be prejudiced if the proceedings are allowed to continue. Of significant relevance to that issue must be the nature of the claim being advanced by the plaintiff in the proceedings. In this regard the court is satisfied that the plaintiff’s claim is a very serious one in so far as it makes substantial allegations of wrongdoing against those who are charged with upholding the rights of citizens in this state. In particular, the court considers her claim surrounding the events that she maintains occurred in November 2000 to be extremely serious. A claim by a woman to the effect that she was subjected to an unwarranted, unlawful and negligent internal medical examination is one which the court should be cautious to dismiss because public confidence in An Garda Síochána would best be met by a full hearing and determination of such a claim. Such a hearing not only potentially benefits a plaintiff who has been wronged but also affords a defendant against whom very serious allegations are made the opportunity of clearing their good their name and restoring their reputation.
108. Having considered the affidavit of Ms. Duchene, the court is satisfied that the defendants have established that they would have been significantly prejudiced in their ability to defend all claims arising out of the events of November 2000 if this action had been allowed to proceed to trial, as was intended by Cross J.
109. Insofar as the plaintiff complains that the internal examination was carried out negligently, clearly the absence of Dr. Maloney, who carried out that examination, would leave the defendants, who are alleged to be vicariously liable for his actions, tremendously exposed. In this respect the fact that Dr. Lawless is available to give evidence at the hearing does noting to mitigate that prejudice. He was not present when the examination was carried out and did not arrive until several hours after it had taken place. He is not in a position to give any evidence as to how the procedure was preformed, the condition of the plaintiff during that procedure or as to the environment in which the same was carried out. Further, he could have nothing to offer in terms of evidence on the issue as to whether or not the procedure was carried out with or without the plaintiff’s consent or the circumstances in which any purported consent was obtained.
110. The court rejects the inference that it was asked to draw from the fact that at the time they brought their first application the defendants were not aware of Dr. Maloney’s death that he was not viewed as an essential witness. At the time that motion was issued a statement of claim had not been delivered by the plaintiff and in those circumstances it would be unrealistic to have expected that the defendant’s solicitors would necessarily have been in contact with Dr. Maloney. Further, the fact that Ms. Duchene in her affidavit makes it clear that she only found out about Dr. Maloney’s death when she sought to contact him to ascertain his availability for the trial would support the defendant’s contention that he was advised as an essential witness for the defence of the claim. The Court is therefore satisfied that the delay by the plaintiff in prosecuting her case was causative of the prejudice contended for by the defendants at the hearing before Cross J.
111. The Court must also have regard to the conduct of the defendants in deciding whether or not justice would favour the dismissal of the proceedings. In this case at no stage did not defendants acquiesce in what the court has concluded was inordinate and inexcusable delay. From the earliest of times the defendants made it clear that they expected that the rules of court would be complied with. They sent back the first statement of claim delivered in 2007 because it was not delivered further to the service of a valid notice of intention to proceed. Further, by its conduct in bringing the first motion to dismiss before the court in December 2009 they made it abundantly clear that there were not prepared to acquiesce in the plaintiff’s delay in advancing her claim. The defendants, moreover, as referred to in Ms. Duchene’s affidavit, delivered their defence on 12th October 2010 notwithstanding the fact that they had not at that time received a reply to their notice for particulars which had been raised on 4th March 2010. Further, they had pursued the plaintiff’s solicitors for replies to the notice for particular by warning letters delivered on 24th November 2010 and 13th January 2011. In addition, having received the replies to particulars the defendants, by letter dated 26th January 2011, called upon the plaintiff to serve her notice of trial which was not then delivered until 21st July 2011.
112. In the foregoing circumstances it can hardly be said that the defendants by their conduct added in any material way to the delay in the prosecution of this action.
113. Finally, in considering where the balance of justice lies in this case, it is important to recognise that in dismissing a claim such as the present one the court is, in effect, revoking the plaintiff’s constitutional right of access to the courts. However, that is not an unqualified right and is one which must be considered against the backdrop of the other competing rights in the case, namely; the right of the defendants to protect their good name as is their entitlement under Article 40.3.2. and the court’s own obligation to administer justice in a fair and timely manner as is to be inferred from Article 34.1.. Nobody against whom serious allegations of the nature at the heart of these proceedings are made, particularly where their professional reputation is at stake, should have to wait 10 or more years before being afforded opportunity to clear their good name. Neither should they have to do so in circumstances where a court is satisfied that a fair trial and a just outcome can no longer be assured.
114. Accordingly, having reconsidered all of the evidence before the High Court judge and having given due weight to his conclusions, this court is satisfied that the within proceeding must be dismissed and we will therefore allow the appeal.