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Neutral Citation No: [2003] IEHC 429

THE HIGH COURT

1994 No. 2823P

BETWEEN

NOREEN McCARTHY

PLAINTIFF

AND

SOUTH INFIRMARY – VICTORIA HOSPITAL LIMITED

AND MARGARET O'CONNOR IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF DR. THOMAS O'CONNOR DECEASED

DEFENDANTS

JUDGMENT of Mr. Justice Abbott delivered on the 7^th day of March, 2003.

These applications are brought by the defendants who seek to strike out the claim of the plaintiff in these proceedings on the grounds of an inordinate and inexcusable delay of the plaintiff in the commencement and prosecution of the proceedings, and, also, to have the proceedings dismissed for want of prosecution pursuant to the Rules of the Superior Courts.

The plaintiff's cause of action arises from the performance of an operation on her by the late Dr. Thomas O'Connor, deceased, now representented by the second named defendant, at the first named defendant's hospital in Cork in 1986. Central to the claim is the fact that the plaintiff claims that she was told by the late Dr. O'Connor that she had a total hysterectomy performed when in fact the operation carried out by him was only a partial hysterectomy, leaving the ovaries intact. The plaintiff did not discover that the hysterectomy was partial only, until 1993, and claimed that as a result, her medical treatment and lifestyle was affected to her detriment, as a result whereof she suffered personal injuries, loss and damage.

Sequence of events.

1. The sequence of events insofar as pleadings go are as follows:

In May 1994 proceedings were instituted against the first named defendant only.

2. In January 1996 the plaintiff sought discovery against the first named defendant.

3. In February 1996 an affidavit of discovery was sworn and delivered on behalf of the first named defendant.

4. Dr. Thomas O'Connor was joined in the proceedings as second named defendant in April 2^nd 1996.

5. A Statement of Claim was delivered on the 7^th May 1996 and this Statement of Claim bore the record number 1996 No. 2976P.

(It is accepted that despite the different record numbers the proceedings remained the same and may be regarded as one).

6. The second named defendant swore an affidavit of discovery on the 12^th July 1996.

7. The second named defendant delivered a defence on the 27^th day of September 1996.

8. The first named defendant sought particulars from the plaintiff on the 19^th September 1996 and they were responded to on the 18^th August 1999.

9. On November 29^th 1999 the first named defendant sought further particulars and the plaintiff responded thereto on the 11^th February 2000.

10. On 1^st July 2000 the second named defendant, Dr. O'Connor, died.

11. In June 2001 an order was made for the substitution of the personal representative of Dr. O'Connor to the proceedings.

12. On the 12^th September 2001 further particulars were delivered by the plaintiff as against the first named defendant.

13. A motion for judgment in default of defence as against the first named defendant was issued on the 24^th October 2001.

14. On the 23^rd November 2001 a defence was delivered by the first named defendant.

15. Notice of Trial was served on the 29^th November 2001.

16. The first named defendant issued the Notice of Motion claiming that the proceedings be dismissed on the 27^th November 2001.

17. The second named defendant issued a similar Notice of Motion on the 2^nd October 2001.

18. These motions are the subject of the present hearing.

Correspondence

A number of relevant streams of correspondence occurred during the course of

the pleadings and may be summarised as follows:

(a) Correspondence commencing with letter from Arthur Cox and Co., solicitors for the second named defendant preceding medical examination of the plaintiff which culminated in an appointment for an ultra sound scan on the 12^th February 1999. The reason for the protracted correspondence and delay was by reason of the reluctance of the plaintiff to submit to a physical examination and difficulty in obtaining the requisite medical experts to carry out the scan.

(b) Four letters commencing with the 29^th April 1998 and ending with the 23rd February 1999 from the plaintiff's solicitors to the solicitors for the first named defendant demanding the swearing of an affidavit of discovery in the proper format and finding fault with the format of the affidavit of discovery sworn by Brendan Murphy on behalf of the first named defendant on the 19^th February 1996.

(c) Five letters from the solicitors for the plaintiff to the solicitors for the first named defendant commencing with the 19^th August 1999 and ending with the 2^nd October 2001 calling upon them to furnish a defence on behalf of the first named defendant.

The applications

It is appropriate to deal with the second named defendant's application as it was the first in time to be presented. The Notice of Motion is grounded on the affidavit of Margaret O'Connor, the second named defendant, and personal representative of Dr. O'Connor, sworn on the 28^th September 2001.

Having referred to the manner in which the proceedings developed the second named defendant sets out her case in the following paragraphs:

"Relevant historical details

7. In 1987 the first named defendant hospital ceased to provide gynaecological services at its hospital. My late husband retired towards the end of 1987 and he died on the 1^st July 2000 at the age of 76 …

8. Having attended a consultation of my late husband at the offices of his solicitors to discuss the records which are available, I remember that the 1986 operation notes were acknowledged to be missing. I am informed by my solicitors that the said 1986 operation notes together with anaesthetic notes for the operation and the outpatient department notes following the operation are all missing. I believe that all those records were kept by the first named defendant hospital. Those records certainly are not within the power, possession or procurement of myself or of the estate of my late husband.

9. The time lapse between the plaintiff's claim against the first named defendant and the closure of the gynaecological section of the first named defendants hospital appears to have given rise to the mislaying, loss or destruction of those records.

Prejudice.

10. The death of my husband means that my late husband's professional reputation and the defence of this claim will be greatly prejudiced by the delay and the commencement and prosecution of these proceedings. The plaintiff's allegations relating to facts about advise given to the plaintiff in particular cannot be challenged now. Counsel, who will be engaged to defend my late husband's professional reputation, will be deprived of the opportunity to discuss the allegation with my late husband. The particulars of negligence and specifically the additional particulars of negligence furnished with the letter the 12^th September 2001 will have to be left without an input from my late husband.

11. Compounding all these difficulties is the absence of the records for the relevant 1986 operation together with the anaesthetic outpatient records around that time. I am advised by my solicitors that the experts engaged to defend my late husband's professional reputation would have reviewed these records if they were available.

12. All of this prejudice has arisen as a result of the failure of the plaintiff to commence and prosecute these proceedings in a timely manner.

13. Further, I am advised by my solicitors and counsel that the statute of limitations plea has been compromised because of my inability to adduce evidence on behalf of my late husband concerning the information which he would have given to the plaintiff or her advisers subsequent to 1986."

The plaintiff replied to the application and grounding affidavit of the second named defendant by filing an affidavit of Mary McCarthy, her solicitor, sworn on the 13^th November 2001. That affidavit points out that the plaintiff's proceedings were not statute barred as the Statute of Limitations (Amendment) Act 1991 specifically provided that time does not begin to run until a plaintiff becomes aware that he has been injured and that the injury in question was significant, and that the injury was attributable in whole or in part to the act or the omission which is alleged to constitute negligence. The affidavit further avers that the plaintiff would have the benefit of this provision insofar as she did not find out until 1993 that the second named defendant had performed a sub-total hysterectomy. She challenges the assertion by the second named defendant that nothing occurred within the proceedings against the second named defendant from September 1996 to the 19^th June 2001 and refers to the difficulties and correspondence relating to obtaining an examination of the plaintiff by pelvic ultra sound scan on behalf of the second named defendant. The affidavit sets out how the plaintiff first heard of the late Dr. O'Connor's death in August 2000 and promptly set out to have a representative nominated so as to reconstitute the proceedings leading to the proceedings being reconstituted by order of the 23^rd July 2001 against the present second named defendant who is the legal personal representative of the late Dr. O'Connor. The affidavit states that the first intimation the deponent had of an application to dismiss the proceedings on the grounds of delay for want of prosecution was by Notice of Motion dated the 2^nd October 2001 and that this was after the solicitors to the second named defendant had consented to the substitution of Margaret O'Connor's personal representative of the second named defendant by letters dated the 16^th March and the 17^th March 2001 and that there was no indication at that time that an application to dismiss for want of prosecution delay would be brought. She explains that the Notice of Trial had not been filed in the proceedings in part because the first named defendant had failed to file a defence and refers to the most recent letter of the 2^nd October 2001 warning the first named defendant's solicitors of the intention to apply for judgment in default of defence. In paragraph 10 she refers to the grounding affidavit of Margaret O'Connor and continues

"It is set out in paragraph 8 of the said affidavit that notes in relation to the plaintiff's operation in 1986 were acknowledged to be missing by the second named defendant at a consultation which took place some time after the proceedings herein were issued. There is no indication as to when the said consultation took place but it is clear that these notes were missing at the time these proceedings were commenced and it is not alleged that same were lost, mislaid or destroyed as a result of any alleged delay on the plaintiffs part in prosecuting these proceedings. I say and believe that the death of the second named defendant does not prejudice his estate having regard of the fact that the operation notes were missing at all stages since the commencement of proceedings. Furthermore, I say and believe that if the second named defendant's notes are missing it is not because of any act or omission of the plaintiff. If the second named defendant has suffered prejudice because of the absence of these notes then this has occurred by virtue of the second named defendant's own fault. The said notes have been missing since at least 1994 and I say and believe that it is unreasonable of the second named defendant to now use their absence as a ground for seeking the dismissal of the plaintiff's claim herein."

A further affidavit of Nessa O'Roarty, solicitor, for the second named defendant, was sworn on the 16^th January 2002 and puts matters of further detail in issue but does not alter the picture emerging.

The first named defendant's application

The Notice of Motion of the first named defendant seeking to dismiss was returnable on the 3^rd day of December 2001 and grounded on the affidavit of Gerard O'Callaghan, sworn on the 26^th day of November 2001 the Notice of Motion is substantially the same as that of the second named defendant's Notice of Motion served earlier. The affidavit sets out the details of the commencement of the proceedings against the first named defendant and the process of furnishing documents to the plaintiff from 1994 culminating in the affidavit of discovery of Brendan Murphy of the 19^th February 1996 and refers to the period which elapsed between letter dated the 19^th September 1996 from the first named defendant's solicitors seeking particulars of aspects of the plaintiff's claim and the replies to that letter received on the 18^th August 1999 indicating that on the 29^th November 1999 the solicitors for the first named defendants sought further particulars which he replied to on the 11th February 2000 and the further notification of particulars on behalf of the plaintiff to the first named defendant of the 12^th September 2001. It is instructive to set out the manner in which the affidavit on behalf of the first named defendant put the case in relation to prejudice to the first named defendant consequent upon delay as follows:

8. "I believe it clear from the foregoing history of these proceedings that there has been extreme delay of the prosecution of these proceedings. The matters of which complaint is made are alleged to have occurred over 15 years ago. The first communication from the solicitors representing the plaintiff occurred seven years after those events, and this fact notwithstanding, the proceedings have been punctuated by very considerable periods of inactivity.

9. This had a probable prejudice in connection with the defence of this claim by the first named defendant. By the time these proceedings were intimated, the second named defendant had retired from his practice, having so retired in 1987. As already observed, he died on the 1^st July 2000. A consideration of the Statement of Claim makes it clear, I believe, that this is a claim which is essentially based upon alleged negligence and the conduct by that defendant of an operation; clearly therefore his evidence would have been critical to the defence of both defendants to the claim.

10. The position of the first named defendant in defending this claim since the death of the second named defendant is, I believe, exacerbated by the fact that the treatment of which the plaintiff complained herein, was extended to her as a semi-private patient of the second named defendant. The second named defendant, I understand, did not have any records of the operation as of the notification of this claim. Specifically, I am advised and believe that his representatives have indicated that they do not possess records relating to the operation the subject hereof, nor contemporaneous correspondence indicating what precisely transpired at the operation.

11. The records maintained by the first named defendant in relation to the plaintiff are, I believe, similarly incomplete. The first named defendant does not have any discharge letter which letter having regard to the allegations made herein, would be of considerable importance. At the time of the plaintiff's discharge, I believe that the practice was for discharge letters of private and semi-private patients to be prepared by the attending consultant, and sent to the patient's own general practitioner. The outpatient department notes for this period which in relation to the plaintiff would, I believe have included reference to theatre procedures undergone and discharge reports appear to have been moved on a number of occasions when departments within the first named defendants hospital were being reorganised, and those notes are now missing or destroyed. I believe that notes relating to the operation, the subject hereof, are missing and that anaesthetic notes for the operation and the outpatient department notes following the operation are also missing.

12. The only documentation in the possession of the first named defendant relating to the matters in issue in these proceedings comprise a copy of the plaintiff's chart, nursing notes and a copy of the relevant section of the theatre book from the hospital. …

13. …

14. The fact of the documents being missing are all from the moving of the gynaecological section of the first named defendant a long number of years ago.

15. In consequence of the foregoing, I believe that the first named defendant will be very considerably prejudiced in connection with its defence of the within proceedings and in the circumstances I pray the court do grant the relief herein.

By affidavit sworn on the 13^th December 2001 the plaintiff's solicitor Mary McCarthy replied to the affidavit of Gerard O'Callaghan. In that affidavit Mary McCarthy sets out in the early paragraphs thereof that the first named defendant only intimated the intention to have the proceedings dismissed for a delay in prosecution when the plaintiff pressed for a defence by way of motion for judgment and that the delay on the part of the plaintiff in instituting the proceedings was caused by reason of the fault of the defendants in that they failed to explain to the plaintiff the type of operation which she was to undergo and delayed in furnishing the documentation necessary for her to establish whether she had the total hysterectomy or otherwise.

It is helpful to set out the balance of the affidavit of Mary McCarthy sworn on the 13^th December 2001 as follows:

7. "I beg to refer to paragraph 9 of Mr. O'Callaghan's affidavit.

"I deny that the first named defendant has been properly prejudiced in the defence of this claim. Prior to service of the within Notice of Motion, no notification was ever furnished by the first named defendant that it was prejudiced by any alleged delay. No indication was ever given in correspondence or otherwise that it was important that this matter be brought to trial sooner rather than later on the grounds of Dr. O'Connor's ill health or age. No application was ever made to have Dr. O'Connor's evidence taken on commission nor was their any indication ever given to the plaintiff's solicitors that an early trial should be sought. I say and believe that it has been clear from an early stage in these proceedings that hospital notes and the records maintained by the second main defendant were either sparse or missing.

8. The first named defendant in attempting to rely upon the paucity of records seeks to fix the plaintiff with responsibility for something which is entirely outside of her control and not of her making. In relation to the said records it should be noted that there are a number of references to the plaintiff's hysterectomy in the hospital notes. These include, inter alia, the following:

(a) Admission note of the 20^th July 1986 refers to the plaintiff being admitted for a hysterectomy, fasting for an abdominal hysterectomy and refers to the fact that she had an abdominal hysterectomy performed by Dr. O'Connor this is set out at page 47 of the hospital notes.

(b) On the 21^st July 1986 the plaintiff signed a consent for operation. This was witnessed by K. Donovan. In same the plaintiff purported to consent to the administration of an anaesthetic and to the operation of abdominal hysterectomy. This is referred to at page 40 of the said notes.

(c) At page 46 of the said notes an extract from hospital notes refers to the plaintiff being admitted for a hysterectomy at a later date.

(d) The theatre check list of the 21^st July 1986 refers to the plaintiff having had an abdominal hysterectomy

(e) The theatre record book exhibited in the affidavit, and which was not previously furnished to the plaintiff herein despite the order for discovery, shows the plaintiff was listed under Dr. O'Connor for an abdominal hysterectomy on the 27^th July 1986.

(f) Admission notes made on the 13^th October 1989 referred to the plaintiff having had a "hysterectomy X three years ago in South Infirmary". There were numerous references to a hysterectomy in the hospital notes relating to the admission on this date.

(g) A letter from the plaintiff's general practitioner (Dr. Sinead O'Connor), to the medical records section of the South Infirmary dated the 9^th June 1993 states that "the above patient of mine had a hysterectomy under Dr. O'Connor in the South Infirmary Hospital in 1986."

(h) A letter from the South Infirmary dated the 3^rd November 1983 states that the plaintiff had on the 22^nd July 1986 a hysterectomy performed for fibroids. Her ovaries were not removed.

(i) A radiological report prepared by Mr. Val Moore dated the 10^th November 1993 refers to a "subtotal hysterectomy." He stated that both ovaries were present and that no abnormality was detected.

9. I say and believe that it is clear from the above extracts that the plaintiff was told at all times that she was having an abdominal hysterectomy. This is not what occurred in fact, the plaintiff had a subtotal hysterectomy. Her ovaries were left in situ as was her cervix.

10. I say and believe that the first named defendant has been aware since at least the 19^th February 1996, when an affidavit of discovery was sworn on behalf of the first named defendant, that a significant portion of the hospital notes and records relating to the operation, the subject matter of these proceedings, were missing. Despite this no application to dismiss the plaintiff's claim was brought at that time nor was there ever any indication of an intention to do so up until service of the within Notice of Motion."

The submissions

Submissions on behalf of the second named defendant.

Counsel on behalf of the second named defendant opened the following authorities in relation to the jurisdiction of the court to strike out proceedings for delay:

1. O'Domhnail -v- Merrick [1984] 1 I.R. 151-168

2. Toal -v- Dignan, The Board of Guardians and Directors of the Coombe Lying-in Hospital & Ors. (Supreme Court, 27.11.1987 and 26.7.1990) [1991] I.L.R.M. 135 – 139, 140 – 159.

3. Kelly -v- Cullen and Mid Western Health Board (Unreported) (Supreme Court) – Barron J. – 27.7.1998.

4. Brennan -v- The Western Health Board (Unreported) [High Court Judgment of Macken J. of 18.5.1999].

5. JO'C -v- the Director of Public Prosecutions (Supreme Court – 19.5.2000) [2000] 3 I.R. 478 – 535

6. Kelly –v- O'Leary (High Court 26.6.2001) [2001] 2 I.R. 526 – 544

Counsel for the second named defendant cited three areas of delay which alone entitled the second named defendant to a dismiss under the jurisdiction of the court as follows:

1. The delay in initiating the action from 1986 to 1996

2. The delay from 1993 to 1996 in initiating proceedings during a time when the alleged wrongdoing of the second named defendant had come to the knowledge of the plaintiff.

3. The further delay from 1996 to serve of Notice of Trial or at least from 1996 to 2001 when the proceedings were reconstituted against the personal representative of the second named defendant.

4. He stated that any of these periods were longer than would have been tolerated by many of the judgments in the authorities cited. The lapse of 16 years from the occurrence of the events complained of now cause general prejudice in as far as memories would naturally have faded, in addition the operating notes, outpatients notes and anaesthetist notes had been lost.

5. The delay and loss of records as outlined were extremely prejudicial, and became critically prejudicial on the death of the second named defendant on the 1^st July 2000 leaving the second named defendant in a position where it would be impossible for him to defend the action and a grave denial of his constitutional rights to fair procedures. Not only was the death a significant setback to the capacity of witnesses to recall the matters complained of in 1986 but also the evidence of the deceased second named defendant was crucial in relation to the defence of the Statute of Limitations Amendment Act 1991 insofar as the deceased second named defendant was a crucial witness in determining just what details were given to the plaintiff in relation to her operation in 1986 and what these details were.

6. Counsel for the second named defendant also referred to the fact that the second named defendant was 76 when he died and his age and likely deteriorating health were known to the plaintiff as is evidenced by a reference in the proceedings to the fact that the second named defendant was retired.

Submissions on behalf of the first named defendant.

Counsel for the first named defendant in a written submission to the

court relied on the following authorities:

1. O'Domhnail -v- Merrick [1984] 1 I.R.151-168

2. Toal -v- Dignan, The Board of Guardians and Directors of the Coombe Lying-in Hospital & Ors. (Supreme Court, 27.11.1987 and 26.7.1990) [1991] I.L.R.M. 135 – 139, 140 – 159.

3. Southern Mineral Oil Limited (in liquidation) -v- Cooney [1997]

3 I.R. 549, 562.

4. Primmor -v- Stokes Kennedy Crowley [1996] 2 I.R. 459.

5. Kelly -v- Cullen and Mid Western Health Board (Unreported) (Supreme Court) – Barron J. – 27.7.1998.

6. Martin -v- Moy Contractors & Ors. (Unreported) Supreme Court 11^th February 1999.

7. O'Reilly -v- C.I.E. [1973] I.R. 283

It was submitted that the court enjoys the jurisdiction to dismiss proceedings where there had been a delay in connection with same, even if instituted within the limitation period (which the first named defendant did not accept these proceedings were). – and referred to the following cases as authority for that proposition:

O'Domhnail -v- Merrick [1984] 1 I.R151-168

Toal -v- Dignan, The Board of Guardians and Directors of the Coombe Lying-in Hospital & Ors. (Supreme Court, 27.11.1987 and 26.7.1990) [1991] I.L.R.M. 135 – 139, 140 – 159.

The general principle operative of these circumstances was submitted to be equally clear and was stated by Keane J. in Southern Mineral Oil Limited (in liquidation) -v- Cooney [1997] 3 I.R. 549, 562 as follows:

"It is clear that the jurisdiction to strike out proceedings where there has been delay can be exercised even though the proceedings were instituted within the relevant limitation period. Where the delay has been so extreme that it would be unjust to call upon a particular defendant to defend himself or herself the guarantee under the Constitution of Fair Procedures cannot be defeated by the operation of a particular limitation period."

Counsel stated that the principles governing the exercise of the court's discretion in this regard are as stated by the Chief Justice in Primor -v- SKC [1996] 2 I.R. 459 and consistently applied in the cases as follows:

"The principles of law relevant to the consideration of the issues raised in this appeal may be summarised as follows:

(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 parties seeking a dismissal for want of prosecution on the ground that it lay 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 judgment on whether, in its discretion on the facts the balance of justice is in favour or against the proceedings of the case,

(d) In considering this latter obligation the court is entitled to take into consideration and have regard to,

I. The implied constitution of principle of basic fairness of procedures,

II. Whether the delay in consequences prejudiced in the special factor of the case are 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 amount to acquiescence essence on the part of the defendant at 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 taking out a striking 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 weight to be attached to such conduct depending upon all the circumstances of the particular case,

VI. Whether the delay gives rise to a substantial risk that it is not possible to a fair trial is likely to 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 a defendant's reputation and business."

Counsel further submitted that it was clear from the principles expressed in Primor that the first question to be addressed by the court relates to the period of time that has elapsed as the wrongful acts, and to whether this is such as to activate the jurisdiction of the court to dismiss. In this regard, the first named defendant finds itself in a position where the claim against it relates to events that occurred almost 16 years ago. While the plaintiff responds by observing that it was only in 1993 that she became aware of the matters which it was alleged now give rise to a claim on her behalf, it is clear that in these circumstances the burden imposed upon her to bring the proceedings speedily to trial was increased. Thus in Kelly -v- Cullen Barron J. stated at (page 10) "the longer it is since the cause of action arose, the less likely it is that circumstances giving rise to delay will be regarded as excusable."

It was submitted that the burden was not discharged and in this regard the particular periods of delay were as follows:

1. Although it took two years for the Statement of Claim to be delivered after serving the summons in May 1994, and entry of appearance in June, it is important to note that it was only at this stage that the first named defendants knew the particulars of the wrongdoing alleged against them.

2. Shortly after the delivery of a Statement of Claim in May 1996 the second named defendant having been joined, the first named defendant delivered a Notice for Particulars in September 1996. These were not responded to until three years later.

3. Even then the matter was not moved along with any expedition by the plaintiff with the further Notice for Particulars being responded to at a relative leisurely place, and no steps being taken insofar as first named defendants were concerned between February 2001 (when replies were delivered to that further notice for particular) and in September 2001 (when further particulars were delivered).

It was argued that the sequence of events in Kelly -v- Cullen (also an action arising from alleged professional negligence) is particularly instructive. The events of which the complaint in Kelly –v- Cullen was made occurred in 1976. The proceedings were instituted (within the limitation period) in 1990 the summons was issued in 1990, and (as here,), it took two years for the Statement of Claim to be delivered. Again, (as here,), it took three years for a Notice of Particulars to be replied to. The application to dismiss the proceedings brought in July 1997 (indeed a similar time having elapsed there between the institution of the proceedings and the bringing of the application) it was submitted that the court in these circumstances had little difficulty in concluding that there had been inordinate and inexcusable delay in prosecuting the action (at page 12).

Similarly it was argued that in Martin -v- Moy Contractors a court dismissed personally injury proceedings arising from an accident occurring in February 1988 where the summons was issued in 1991, served in January 1992 and followed by a Statement of Claim in November 1993. A Notice of Particulars was delivered in January 1994 but not responded to until December 1997. In the meantime an essential witness died. It was submitted that the court had little difficulty in concluding than these delays were both inordinate and inexcusable (at page 13).

It was submitted that the plaintiff had not made out any excuse for the delays. It was claimed that no explanation at all was proffered for the period of time that elapsed between the issuing of the summons and the issue of the Statement of Claim, nor of the period that elapsed within the delivery of Notice for Particulars in September 1996 and the provision of a reply three years later. In this regard it was noted in the submissions that complaint is made in the affidavit delivered on behalf of the plaintiff that the first named defendant was motioned to deliver a defence and failed to bring a motion to strike out earlier. However it was submitted that it is clear from the Primor case that this is not a decisive factor. Counsel on behalf of the first named defendant recognised that Primor required that the court would have to balance the prejudice to the defendant by reason of the delay with the rights of the plaintiff to a trial and set out in detail the considerations he submitted should apply as follows:

14. "By definition of parties seeking to defend a claim relating to events occurring 16 years ago is prejudiced. Recollection is dim, it becomes more difficult to locate and identify witnesses, and documents are less likely to be available. As observed by Lynch J. in Martin -v- Moy Contractors, (Unreported) Supreme Court 11^th February 1999, at page 13, the context where at the time of the Supreme Court appeal the proceedings related to events occurring some eleven years before,

"It is manifest from the foregoing summary of the facts that there has been both an inordinate and inexcusable delay on the part of the plaintiff on the prosecution of this claim. That being so an inference of prejudice by the mere dimming of recollection of witnesses on events so long ago must arise."

It was submitted this is particularly the case in a context where the allegations made against the first named defendant as set forth on the Statement of Claim are characterised by very considerable vagueness,

It was agreed that in this case the general prejudice sounds a very particular dimension for two reasons:-

The first relates to the death of the second named defendant. His importance as a witness is self evident. The allegations as made against the first named defendant, revolve around what the second named defendant did or did not advise the plaintiff. His unavailability as a witness thus deprives the first named defendant of critical evidence. The position in this regard is not altered by the new particulars (delivered after the reconstitution of the proceedings). The critical question continues to depend upon what the plaintiff was told, and the person who was alleged to have imparted the information referred to, who is the second named defendant.

The second relates to the absence of records the second named defendant did not have any records of the operation in question (affidavit of Gerard O'Callaghan).

The only documents which the first named defendant has are the nursing notes and theatre book. However, in a context where the critical allegations made against the first named defendant appear to involve a failure to properly advise the plaintiff of the nature of the operation carried out on or following same this is a critical impairment of this defendant's ability to defend the claim. This is a factor that has been taken into account on similar cases or (see Toal -v- Dignan).

It was submitted that the plaintiff's response to these difficulties appears in the first instance to assert that in fact the documents that have been discovered demonstrate that "the plaintiff was told at all times that she was having an abdominal hysterectomy" (affidavit of Mary McCarthy 13^th December 2001 paragraph 9). This is not the case. First, the documents do no such thing, the nursing notes actually referring to her having had "a sub total" hysterectomy (see page 48). Secondly the whole point is that there is no record of what the plaintiff was or was not told. Thirdly, in fact, the very reference on the documents relied upon demonstrate the necessity to have the defendants to have available to them the evidence of the now deceased witness.

It has also been suggested that in some sense the defendants were to blame for not taking steps in relation to the matter themselves, by for example taking the evidence of Dr. O'Connor on commission (affidavit of Mary McCarthy). It was submitted that the authorities create no such obligation (see Primor page 494-496 and Martyn).

The plaintiff's submissions

Counsel on behalf of the plaintiff submitted that the difficulty in obtaining records and discovery meant that there was a considerable delay in instituting and processing the proceedings by serving a Statement of Claim and replies to particulars. He pointed to the protracted correspondence relating to the adequacy of discovery and the piecemeal production of records such as they were. He instanced the protracted correspondence in relation to discovery as a cause for delay in replying to Notice of Particulars delivered in 1996 and replied to in 1999. He argued that both defendants acquiesced in the delay insofar as they never brought any motion to have the proceedings dismissed for want of prosecution and were only spurred into action when the proceedings were reconstituted and the motion in default of defence was served against the first named defendant in 2001. The first named defendant was guilty of long delay in delivering a defence as evidenced by the numerous letters from 1999 pressing the first defendant for such defence. He stated that once the death of the second named defendant was made known to the plaintiff no time was wasted in having the proceedings reconstituted but that the solicitors for the second named defendant were tardy in furnishing the information required for such reconstitution and that the plaintiff could not be blamed for any delay arising therein. He submitted that if the solicitors had the same concern which they suggest the plaintiff should have had for the advancing years of the second named defendant then they should have moved to have his evidence taken on commission as suggested in Kelly -v- Cullen. He submitted that notwithstanding the death of the second named defendant the existence of the nursing notes showing a preponderance of records regarding a full hysterectomy essentially made the case one which could be heard on documents, and would not be reliant on the evidence of the deceased, the second named defendant. He also referred to the correspondence showing the difficulties experienced between the plaintiff and the second named defendant regarding the examination of the plaintiff. This was because the plaintiff preferred (as was her right) not to have a physical examination carried out on behalf of the defendants but to have an ultra sound scan done instead. There was delay and confusion relating to the carrying out of such an examination requested by the solicitors for the second named defendant which were not of the plaintiff's making.

The Law

The court accepts that the test as set out in Primor quoted in submissions made on behalf of the first named defendant herein sets out the principles upon which the court is to exercise its jurisdiction to dismiss proceedings by reason of delay in their commencement and/or prosecution. The court has found the many cases referred to in submissions of counsel helpful in relation to determining the manner in which these principles evolved and the ways in which the courts have exercised their discretion in applying them in various situations. Since the hearing of the motions herein the Supreme Court decided in Anglo Irish Beef Process Ltd. & DJS Meats Ltd. -v- Derek Montgomery & Ors. & Stokes Kennedy Crowley & Co. (Unreported Judgment dated 31^st July 2002). In that case the Supreme Court indicated that particular weight should be attached in deciding delayed cases to the death of a witness being either a party or an important witness of a party.

Conclusions and findings

(Second named defendant)

As regards the delay from the date of the operation in 1986 to May 1994 it can be said that this is excusable and explained by reason of the lack of knowledge of the plaintiff. However, in May 1994 the plaintiff had sufficient knowledge to initiate proceedings against the first named defendant and her further delay in initiating proceedings against the second named defendant to the 2^nd April 1996 should be queried having regard to the decided cases. The best that may be said for such delay is that proceedings against the second named defendant awaited development of proceedings against the first named defendant, and this judgment, in dealing with the issue of delay as against the first named defendant sets out the assessment of delay relating to this period as it affected the proceedings against the first named defendant and the excusing factors for such delay. On balance, the delay in initiating proceedings against the second named defendant until 2^nd April 1996 could not be justified or excused but the court in assessing this aspect of delay must consider at this stage that the proceedings at least may be assumed at this stage of the proceedings to have been initiated within the period prescribed by the Statute of Limitations as amended. The fact that the second named defendant delivered the defence and swore an affidavit of discovery in 1996 means that the second named defendant had a right to expect a speedy and efficient conclusion of the proceedings against him by service of notice of trial. While the interests of efficiency dictate that as far as possible trials against the defendants with a joint interest in proceedings should be tried at the same time, it is clear from Martin -v- Moy Contractors & Ors. that this interest is not regarded to be absolute and that one defendant in such situations may demand that the trial proceeds notwithstanding delays in preparing for the trial against the other. The delay from the swearing of the affidavit of discovery of the second defendant until the application to reconstitute the proceedings by way of initiating correspondence to the solicitors of the second named defendant was inordinate delay. It was to a large extent inexcusable if the difficulties the plaintiff was experiencing with the first named defendant's case are to be regarded as not having significant weight in relation to the matter. The delay of four years approximately from 1996 to 2000 being the death of the second named defendant itself is indicative of some prejudice, but this prejudice became critical by reason of the death of the second named defendant in 2000. On the authority of Primor and Anglo Irish beef Processors Ltd. the court, in such circumstances, should, and does attach a considerable weight to the prejudice suffered by the representative of the second named defendant by reason of the adverse effect on the trial through the inability of the second named defendant to give an account of the events surrounding the operation, and the conversations and communications of any other kind he had with the plaintiff in relation to the detail of information given regarding her operation, and the dates of such communication.

In ordinary circumstances the weight which would attach to the prejudice suffered by the death of the second named defendant, coupled with the long delay of approximately 16 years since the operation, would be more than sufficient to outweigh the interest of the plaintiff in seeking redress and compensation before the court in respect of her alleged complaints.

However there are two aspects of the case pointing to the opposite view arising from the criteria set out by Primor. The first arises from the fact that correspondence between the parties show that the plaintiff consented to the production of Dr. Murphy (the plaintiff's GP), of his records and in particular a letter from the deceased second named defendant to him, which may have contained details of the second named defendant's specialist report to Dr. Murphy. Notwithstanding the consent of the plaintiff to the production by Dr. Murphy of these records, and the letter of such consent furnished to them, the solicitors for the second named defendant do not appear to have taken up these records. The only fair way to approach the case after the death of the second defendant is to assume that he would say in evidence that he told the plaintiff that she had a partial hysterectomy. The ultimate test of such statement would be to compare it with what he wrote relatively contemporaneously to Dr. Murphy regarding the matter.

The second aspect arises from the further correspondence relating to the difficulties of securing an ultra sound scan of the plaintiff given her excusable reluctance to undergo a physical examination on behalf of the second named defendant. The correspondence shows a continued joint effort between the second named defendant's solicitors and the plaintiff's solicitors to ensure a resolution of this difficulty for which the plaintiff cannot be blamed.

This joint effort culminated in an agreement in the correspondence relating to the sharing between the plaintiff and the second named defendant of the results of the ultrascan. To date, no such results appear to have been shared.

In these circumstances notwithstanding periods of inexcusable delay on the part of the plaintiff in the proceedings against the second named defendant. I am of the opinion that it would be unjust to strike out the proceedings by the plaintiff against the second named defendant by reason of delay, having regard to the probable estoppel arising from the belated joint efforts to effect an ultra sound test. The results of such an ultrasound test would have not only assisted in assessing the present physical position of the plaintiff, but also would have substantially, if not totally, remedied the deficiencies of information arising from inadequate hospital notes and records.

In addition to these two factors of estoppel and/or acquiescence which I find to be of sufficient weight to sway the consideration of the case on the basis of the criteria of Primor in favour of the plaintiff's proceedings I find that the failure of the second named defendant to obtain Dr. Murphy's records constitutes a deficiency in the proofs in this motion showing the inadequacy of the records. While I accept that the burden would have been on the plaintiff to obtain these records to discharge the onus of the plaintiff to disprove prejudice arising from the death of the deceased, the second named defendant's as the person undertaking the burden in the first instance should be the person to suffer the first disadvantage. I have, in making my decision dealt with this deficiency on the part of the second named defendant's case as a matter to be weighed in the consideration of the estoppel – considerations in the issue. I have also taken into consideration that the application has been made late in the day by the second named defendant and that the plaintiff has extended and incurred considerable expense and effort in bringing the proceedings this far. However these two latter considerations by themselves would not have been of sufficient weight to tip the decision in favour of the plaintiff.

Findings in relation to the first named defendant

1. The delay in issuing proceedings while inordinate by any standards is excused by lack of knowledge of the plaintiff,

2. The delay in serving the Statement of Claim of approximately two years was inordinate but excusable by reason of the time taken for discovery,

3. The delay in replying to notice for particulars was inordinate – but this was punctuated by a correspondence regarding the inadequacy of the first named defendant's affidavit of discovery of February 1996. This inadequacy consisted of the non-itemisation of documentation. While I am of the opinion that the plaintiff's solicitors were not justified in delaying the reply to notice for particulars by reason of the stated terms of the order of the master indicating that the affidavit of discovery need only refer to the documents as submitted and not to the detail, the plaintiff's solicitors correspondence relating to discovery can be regarded in short as something of a wild goose chase. They clearly relied on an order which could not produce the kind of information which they required to answer the notice for particulars. Nevertheless in view of the background of the lost records this particular behaviour on the part of the plaintiff's solicitor, while perhaps not fully justified, is understandable and is a credible excuse for some of the delay involved.

4. While the delay in replying to the letter seeking further particulars sent by the first named defendant was inordinate, this delay must be viewed in the context of the further particulars which were sought. In my opinion, such further particulars were not necessary for the defendants to make or deliver their defence. Particulars of negligence and personal injuries set out in the State of Claim contain in my view, the main allegations against the first named defendant, which are now dealt with in the defence. It is doubtful therefore, if the first named defendant was prejudiced by the delay in the reply to notice for further particulars since they were not necessary to prepare the defence which was eventually delivered and filed by the first named defendant. Therefore the delay in delivery by the plaintiff of a reply to the letters seeking further particulars, while inordinate was, excusable insofar as a reply to it was irrelevant to the issues before the court and any issue of defence,

5. The first named defendant's were clearly responsible for the delay in replying to the plaintiff's notice for particulars. The first named defendants were the target of several written reminders to file their defence although the plaintiff could be criticised for not bringing a motion for judgment earlier – but the balance of blame on this issue should not rest against the first named defendant.

While at this stage of the analysis there is some element of delay and lack of purposefulness on the part of the plaintiff which is inexcusable, it would be insignificant in the scheme of things and not in itself such as would give rise to a right in the first named defendants to a dismiss.

However again, I accept that a serious question arises from the prejudice suffered by the first named defendant by reason of the death of the second named defendant. The first named defendant would be as dependent as the second named defendant on the evidence of the deceased, Dr. O'Connor. I do not accept the submission of the plaintiff that this prejudice is a minimal by reason of the fact that there are available certain records, (especially nursing notes), which allow the issue to be decided on the documents. The nursing notes are at best secondary records of what the late Dr. O'Connor had done and there is some ambiguity as to which side of the case such documents support. However, as in the case of the second named defendant, the first named defendants in their affidavit of discovery referred to the existence of an original letter of discharge which had not come into their possession. The plaintiff also consented to the first named defendant's obtaining the original of this letter and any other correspondence from Dr. Murphy. No steps were taken by the first named defendant's to date to augment their available records by obtaining the letter of discharge and any other records from Dr. Murphy. This lack of action has to be judged in the light of the assertion on behalf of the first named defendant's of the importance of this letter in paragraph 11 of the affidavit of Gerard O'Callaghan of 26^th November, 2001 referred to earlier in this judgment. My comments on the importance of the letter of discharge letter to Dr. Murphy and other records made in the context of the second named defendant's motion apply equally to the plaintiff's case against the first named defendant's as do the comments in relation to the consideration to be given to the weight of the case in the event of such records corroborating the plaintiff's account.

Finally two questions remain to be answered in deciding the issue as between the plaintiff and the first named defendant having regard to the foregoing conclusions. The first is whether the death of the second named defendant should be held as a matter which of itself should be a cause for dismissing the action against the first named defendant's given the fact that my conclusion has been that no sustainable argument can be made for such course up to the death of the second named defendant. The second question is whether the failure of the first named defendant's to augment their records, (especially with the letter of discharge), amounts to a matter which should be brought into consideration and weighted against the prejudice which has been undoubtedly suffered by the first named defendant through the death. Such failure may be regarded as estoppel or at least "conduct akin to acquiescence" ala

O'Domhnail –v- Merrick.

I am of the opinion that in relation to the first question the answer is that Dr. O'Connor's death of itself should not in the circumstances, and having regard to the justice of the case be a reason to dismiss the case as death alone has not ever been a reason for not allowing a case to go on. This is especially so, as the balance of delay in this case does not rest heavily against the plaintiff as far as the first defendant's is concerned. Even if I am incorrect in this view, the answer to the second question in relation to the weight given to the lack of action of the first named defendant in augmenting records is that such lack of action in my opinion outweighs the consequences of the death of the second named defendant. Added to this considerable weight are the less influential factors of delay on the part of the first named defendants in bringing this motion, and the considerable expenditure on the part of the plaintiff in bringing the case this far.

Conclusion

I refuse the applications to dismiss of both defendants. However in view of the history of the case, I grant liberty to both defendants to renew the application to dismiss the case against either of them for want of prosecution unless it is set down against both defendants within 8 weeks from the date of this judgment and I shall hear Counsel in relation to such further order or orders as are appropriate to be made in view of the foregoing conclusions.

Approved: Abbott J.