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URL: http://www.bailii.org/ie/cases/IESC/2005/S46.html
Cite as: [2006] 1 IR 345, [2005] 2 ILRM 508, [2005] IESC 46

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Judgment Title: Keogh -v- Wyeth Laboratories Inc. & ors

Neutral Citation: [2005] IESC 46

Supreme Court Record Number: 64/04

High Court Record Number: 1989 No. 973P

Date of Delivery: 12/07/2005

Court: Supreme Court

Composition of Court: Geoghegan J., McCracken J., Kearns J.

Judgment by: McCracken J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
McCracken J.	Appeal allowed - set aside High Court Order	Geoghegan J., Kearns J.

12

THE SUPREME COURT

64/2004

Geoghegan J
McCracken J
Kearns J

Between:

Joan Bernadette Keogh

Plaintiff/ Respondent

AND

Wyeth Laboratories Incorporated
and John Wyeth & Brother Limited

Defendants/ Appellants

Judgment of Mr Justice McCracken delivered the 12th day of July 2005
___________________________________________________________

This is an appeal from the refusal of the High Court (McKechnie J) to dismiss the Respondent’s claim for want of prosecution or in the alternative to dismiss the Respondent’s claim pursuant to the inherent jurisdiction of the Court on the grounds of the Respondent’s delay in the prosecution of her case.

The Appellants are manufacturers of a drug called Ativan which is a drug for treating anxiety conditions and is available only on prescription. The drug was initially prescribed to the Plaintiff by her general practitioner in 1979 for the purpose of reducing anxiety and panic attacks. She continued to take Ativan on prescription until 1984 when she became aware through a television programme that there were allegations that some people had difficulties with the drug. She tried to reduce her dosage and claims that she suffered serious withdrawal symptoms including panic attacks, fear of leaving the house on her own, depression, difficulty making decisions and poor memory. In 1985 she was referred by her general practitioner to her local health board psychiatric clinic.

In these proceedings the Respondent claims damages for personal injuries, loss and damage sustained by her by reason of the negligence and breach of duty of the Appellants. Her basic claim is that the Appellants were negligent in that they knew that Ativan could be addictive, but failed to give adequate warnings to this effect either to patients who took the drug or to the medical profession who prescribed it. These proceedings were commenced by plenary summons dated 27th January 1989, and a statement of claim was delivered dated 3rd March 1989. On 14th December 1990 the Appellants filed a defence pleading, inter alia, that the claim was statute barred. However, that issue is not relevant to this motion.

On the hearing of this motion in the High Court the Appellants contended that the delay since the issue of the proceedings was both inordinate and inexcusable. This was disputed by the Respondent, but in his judgment the learned High Court Judge found that the delay generally was inordinate and further found that the delay from February 1996 until the issue of this motion on 4th December 2001 was also inexcusable. However, he went on to find in the exercise of his discretion and on the balance of justice that if he were to strike out the action he would have a real sense of doing an injustice to the Respondent, and accordingly he dismissed the application.

On the hearing of this appeal, the Respondent, very sensibly, accepted the learned trial Judge’s findings in respect of inordinate and inexcusable delay. The only issue before this Court, therefore, is whether the learned trial Judge correctly exercised his discretion in refusing to strike out the proceedings notwithstanding the inexcusable and inordinate delay. In determining this point, it is not necessary to analyse the steps taken by the parties over the years in quite the same depth as was done by the learned High Court Judge, although the history of the proceedings does have some considerable relevance to the issue.

It is accepted by both parties that the principles applicable to the consideration of the balance of justice in these circumstances are clearly set out in the judgment of Hamilton CJ in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 where he said at page 475:-

“……

(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 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:-

(i) The implied constitutional principles of basic fairness of procedure,

(ii) whether the delay and consequent prejudice in the special facts 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 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 expenses 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 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 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 at (vi) above may arise in many ways and be other than merely caused by delay, including damage to the defendant’s reputation and business.”

It should be emphasised that the consideration of the balance of justice is primarily a matter for the discretion of the learned trial Judge, and therefore, as in all considerations of the exercise of a discretion, it should not be interfered with lightly. However, it is a discretion exercised in the light of facts deposed to on affidavit, with no cross-examination, and accordingly this Court has before it exactly the same material as that upon which the learned High Court Judge made his decision. In those circumstances, this Court may more readily interfere with the discretion of the learned High Court Judge.

The position where the delay has been found to be inordinate and inexcusable, and only the balance of justice is considered, has been dealt with in several other cases. In O’Domhnaill v Merrick [1984] IR 151 Henchy J said:-

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or the inability on the part of an infant plaintiff to control or terminate the delay of his or her agent.”

This passage was expressly approved by Fennelly J in the Supreme Court in Anglo Irish Beef Processors Ltd & Anor v Montgomery & Ors (unreported 31st July 2002). After quoting the passage he said at page 5:-

“That statement of the law indicates that the author of delay which is found to be both inordinate and inexcusable will not be absolved of fault unless he can point to countervailing circumstances. If he can, the Court may be able to treat him more favourably when it comes to assess the third consideration in the cited passage from the judgment of Hamilton CJ, namely, whether “on the facts the balance of justice is in favour or against the proceeding of the case”. As I have already suggested, the Respondents were unable to point to any disadvantage or disability affecting them. Nor was there any delay or acquiescence of the Appellants, which might redress the balance of fault.

In such circumstances, when the Court comes to strike that “balance of justice” in application of the comprehensive list of considerations set out in the judgment of Hamilton CJ, it will need to find something weighty to cancel out the effects of the Respondents’ behaviour. It will attach weight to the character of the claim and to the character of the Respondents. When considering any allegation of delay or acquiescence by the Appellants, it will be careful to distinguish between any culpable delay in taking any step in the action and mere failure to apply to have the Respondents’ claim dismissed.”

The tests laid down in the Primor case are of their nature very general. In seeking to apply these tests the Court must look closely at the particular facts of the case before it. However the central thread running through these principles are the concepts of fairness and prejudice, which should be at the forefront of the Court’s consideration as to where the balance of justice lies.

In the present case, the learned trial Judge set out very clearly the matters which he took into consideration at page 42 of his judgment:-

“Under this “balance of justice” consideration I must also take into account the fact that in my opinion the defendants did not simply acquiesce in the time period up to February 1996, but were indeed solely responsible for it; secondly, in the five years which followed, the defendants at least tolerated if not acquiesced in the pace of activity or rather inactivity in this case; thirdly, this action is likely to be tried essentially on documentation; fourthly, there is at least an arguable case that the defendants have still not complied with their obligations in respect of discovery, in that they have not properly or adequately identified the documents contained in the schedule to their affidavit; fifthly, the existence of the other litigation involving the defendants above mentioned, and sixthly, the consequences of denying to the plaintiff her right to seek compensation for events which she claims have had a profound and devastating effect on her life over very many years.

Finally it should be noted that prior to the issue of the motion dated 4th December 2001, the defendants had not previously mentioned or threatened the plaintiff with any motion and had not at any stage warned of prejudice or potential prejudice. They could have served notice of trial themselves, or applied to dismiss the action for want of prosecution at any time since February 1991 – see O.36 R. 12(b) and O.122 R. 11 of the Rules of the Superior Courts. They only sought to dismiss this claim some thirteen years after the plenary summons issued.”

Having had the same opportunity as the learned trial Judge had to review the evidence, I would have to take issue with some of the conclusions reached by him. It was certainly open to him to find that the delay up to February 1996 was excusable, although it may be a little unfair on the Appellants to categorise it as being their sole responsibility. However, while certainly the Appellants took no steps to bring matters to a head between February 1996 and December 2001, I do not think this could in any way be seen as acquiescence on their part. It must be viewed in the light of the fact that discovery was made by the Appellants in February 1996, and despite some skirmishing prior to that time as to who might actually inspect the documents, the fact remains that the documentation has been available for inspection since that date and not one document has ever been inspected on behalf of the Respondent. This is not only inexcusable, it is inexplicable if the Respondent is serious about pursuing her case.

Counsel for the Respondent has sought to support the argument by quoting from a judgment of mine in Whearty v Agricultural Credit Corporation Ltd (unreported 1st October 1997) in which I said:-

“I think it quite clear that the defendants hoped or assumed that the case had gone away, and felt they might be better served by doing nothing. While it is perfectly open for them to take this attitude, if the case does not go away then they must suffer the consequences.”

The background to that case differed materially from the present case. That action had been listed before the President of the High Court in a list of cases to explain the delay in bringing the case to hearing. Nobody attended on behalf of any of the parties and the action was struck out. What was before the Court was a motion to re-enter or reinstate the proceedings. The paragraph from which the passage quoted above was taken commences:-

“I now come to what I consider to be the countervailing circumstances in this case. This is not a case in which the defendants or any of them initiated an application to the Court to strike out the proceedings. These proceedings were struck out because nobody, including the defendants, appeared when the case was listed. Furthermore, while the delays are, in my view, inexcusable, particularly in relation to the period from 1987 to 1992, neither of the defendants took any step to strike out the proceedings or indeed to obtain an order compelling the plaintiffs to reply to the notice for particulars.”

That, of course, is in complete contrast to the present case in which the Appellants have in this motion applied to strike out the proceedings.

The learned trial Judge also held that the action in the present case is likely to be tried essentially on documents. The Appellants hotly contest this finding, and argue that they will not only suffer the general prejudice of having to give evidence of matters which took place very many years ago, but that they will suffer actual prejudice. They point to the fact that the psychiatrist first consulted by the Respondent is not available, and while they accept that she was seen by other psychiatrists subsequently in the public health system, nevertheless the evidence of the first psychiatrist would be particularly important. While documentation may certainly go a long way towards showing the origins of the drug, and the tests which it underwent, it must be remembered that the negligence alleged against the Appellants relates, not to the fact that they put a dangerous drug on the market, but that they failed to warn either the medical profession or the patients being treated with the drug as to the possibility of addiction. To meet this, the Appellants will certainly have to try to adduce evidence of the knowledge of members of their staff back in 1979 when the Respondent was first prescribed the drug. In addition, the Plaintiff’s own medical condition between 1979 and 1984 will be of vital importance and will require substantial oral evidence. At page 41 of his judgment the learned trial Judge acknowledged that it might not be possible for the Appellants to rely on witnesses whom they might have wished to do so if the trial had taken place earlier, but said that he could not accept that they could not engage alternative experts who could just as ably assist the Court. While this may well be true as to expert witnesses who simply review the documents, the learned trial Judge went on to say “equally so with regard to employees of the defendants”. It seems to me that there must of necessity be many former employees of the Appellants who will not now be available to give evidence of events which occurred over twenty years ago, and they could not be replaced by alternative witnesses. In my view the Appellants would have serious difficulties in relation to meeting the Respondent’s case by reason of the unavailability of witnesses.

The learned trial Judge also found that there was an arguable case that the Defendants had not complied with their obligations in relation to discovery. This may or may not be so, but the fact remains that discovery was made by the Appellants in February 1996, and since that date the Respondent has not inspected any documents nor made any complaint whatsoever until a motion for discovery was served on 10th December 2001, some five years and nine months after the affidavit of discovery was served.
The learned trial Judge was perfectly correct in identifying the fact that there was considerable other litigation in place in relation to the drug Ativan. However, it appears that such litigation as existed in this jurisdiction has largely lain dormant in the same way as the Respondent’s case, and the litigation in the United Kingdom had almost entirely been disposed of as long ago as 1996. It can hardly effect the delay which took place in the present case since that date.

Finally, the learned trial Judge commented that he must consider the consequences of denying the Plaintiff her right to seek compensation for events which she claims have had a profound and devastating effect on her life over very many years. If these proceedings are struck out, then the consequences undoubtedly are that the Plaintiff has lost her right to seek compensation, but that is the consequence of every order made under these circumstances. The Respondent has sought to call in aid certain passages from the judgment of Finlay P(as he then was) in Rainsford v Limerick Corporation [1995] 2 ILRM 561, and in particular a passage at page 567 where he said:-

“Whilst a party acting through a solicitor must to an extent be vicariously liable for the activity or inactivity of his solicitor, consideration of the extent of the litigant’s personal blameworthiness for delay is material to the exercise of the Court’s discretion.”

At page 569 he said:-

“I am not, however, satisfied on the evidence before me that the plaintiff himself can fairly be blamed for an inordinate and inexcusable delay. It is clear from the summary of the injuries in the evidence before me and from the agreed statement of Counsel as to the general nature that the plaintiff has, since the happening of this event, been severely handicapped and has been involved in long and protracted medical treatment involving considerable difficulties for him in the carrying on of his ordinary life and a considerable degree of immobility. That of itself would be to some extent an excusing circumstance for a failure on his part expeditiously and strenuously to press on his litigation.”

These remarks were made in the context of a case in which the Court expressly held that the delay on the part of the plaintiff’s solicitors was both inordinate and inexcusable. This arose from changes of personnel in the solicitors’ office and from the serious illness of the partner dealing with the plaintiff’s case. Finlay P made the distinction that the delay on the part of the solicitors was inordinate and inexcusable, but that the plaintiff himself could not fairly be blamed for that delay.

It is urged in the present case that the Respondent is a person of very limited means and that the solicitor for the Respondent is a sole practitioner. This is of course true, but it is also a situation which arises in a large number of claims for personal injuries. This is not a case where specific blame can be laid at the door of the solicitor, as was so in the Rainsford case, and the Court has no evidence of what, if any, attempts were made by the Respondent personally to progress her case.

The fact that the Appellants may be large multi-national pharmaceutical companies does not mean that they are not entitled to a consideration of fairness by the Court, nor that any prejudice suffered by them should be ignored. Having considered the same evidence as the learned trial Judge, I am of the view that he erred in the exercise of his discretion and in some of the conclusions which he drew from the evidence. In the light of the enormous delay in this case, I believe that justice would be served by allowing this appeal and striking out the Respondent’s claim and I would order accordingly.

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