Significant Recent Legislative Change

One to be aware of, as it will really require the speedy provision of information and documentation to appointed solicitors in the event of a claim, is the introduction of new High Court rules, Rules of the Superior Courts (Procedure on Default) 2021. In a change to previous practice, the judicial discretion to allow an extension of time when Appearances, Defences, and other pleadings have not been delivered within the appropriate time limits has been removed. Instead, only when the Court is satisfied that ‘it is necessary in the interests of justice’ will an extension of time be granted.

Obviously, anything that streamlines the litigation process has the potential to reduce costs, which is to be welcomed.  We are confident that we can rely on our clients to work closely and promptly with appointed solicitors to ensure the timely delivery of pleadings.

Is an Expert Report Required to Sue?

A question that comes up from time to time is whether the patient/plaintiff must have an expert report to sue. The unanimous Supreme Court decision in Mangan v Dockeray [2020] IESC 67 (04 November 2020) (overturning decisions of both the High Court and Court of Appeal) is very relevant. The key message is that a reasonable basis must exist before professional negligence proceedings are issued. It would be irresponsible and, potentially, an abuse of the process of the court, to commence professional negligence proceedings without first ascertaining that there are reasonable grounds to do so. While an expert report is generally required and will be required in the vast majority of medical negligence claims, the absence of one will not always be ‘fatal’.

Proceedings dismissed for Inordinate and Inexcusable Delay

Recent High Court decision in Patrick Rooney v Health Service Executive [2022] IEHC 132 (21 March 2022). Personal injuries action arising out of alleged negligent care in 2014. There was an eight-year failure to plead any particulars of negligence. The judgment that there had been an inordinate and inexcusable delay and that it would be unfair and prejudicial to the hospital and consultant to require them to defend such a vague and unsubstantiated claim. The balance of justice lay against allowing the proceedings to go to full trial. Plaintiff’s case was dismissed.

Comment: Some of our clients express a concern that they perceive that the courts may not always appreciate the consequences of medical negligence claims for the medical profession, even when the claim is fully defendable. The following words of Mr. Justice Garrett Simons in the Rooney case may provide some solace:

Compliance with these procedural requirements has an especial importance in the context of a claim for professional negligence. The courts have long since recognised the specific difficulties which a claim for professional negligence presents for a defendant. Even if the claim is groundless, the publicity engendered by the proceedings can be damaging to the defendant’s professional reputation and practice. The mere existence of a claim may result in the defendant having to pay increased insurance premiums. Having regard to these considerations, a defendant may be under duress to settle the proceedings by making a payment to a plaintiff notwithstanding that the claim lacks any merit, i.e. to dispose of the “nuisance value” of the claim.

The same rationale which underlies the practices governing the issuance and service of proceedings alleging professional negligence extends to an application to dismiss such proceedings on the grounds of delay. There would be little point putting in place procedural safeguards at the outset of the proceedings, only to allow those proceedings to drag on indefinitely thereafter. The detriment suffered by a professional defendant in terms of, for example, damage to their reputation or having to pay increased insurance premiums, will be prolonged by the delay in prosecuting the proceedings. Indeed, a defendant will suffer additional prejudice in terms of their ability to defend the proceedings as witnesses’ recollection of events fade.

by Josephine Breen

Challenge Helpline Team Medico-Legal Advisor.

Josephine has extensive experience in the area of medical negligence defense litigation and health law generally.

Read her full bio here