Neiser v Leinster Senior College LTD (Approved)

Factual and Procedural Background

These proceedings arose from an incident on 12 May 2010 at a school operated by Defendant where the Plaintiff, then a student, was forcibly pushed by a fellow student (joined third party) on stairs, resulting in a fall and a fractured right ankle requiring medical treatment. The Plaintiff commenced proceedings by Personal Injuries Summons on 11 May 2012 following a Personal Injuries Assessment Board (PIAB) authorisation issued in July 2020.

Between June 2012 and July 2014, the case progressed with the Defendant delivering a full defence attributing liability to the joined third party, an application to join the third party, particulars being exchanged, and an application for discovery ordered in July 2014 on the Defendant's application. Subsequent procedural difficulties arose including an application to strike out for failure to make discovery and a change of solicitor by the Plaintiff due to professional difficulties with the original solicitor. Discovery by the Plaintiff was completed in February 2017, and the Plaintiff then moved to a new solicitor who pursued discovery, obtaining an order in December 2017. However, the Defendant did not complete discovery until June 2019.

Following service of a Notice of Intention to Proceed in March 2019, additional particulars and witness schedules were exchanged and reports disclosed in January 2020. A hearing date was set for 4 February 2020 but was adjourned on the Defendant's application due to late delivery of Plaintiff's reports enlarging the claim. A second hearing date was fixed for 12 May 2020 but could not proceed due to COVID-19 restrictions. An application to dismiss for want of prosecution was issued in August 2020, approximately three months after the aborted second hearing date.

The Defendant's solicitor sent multiple letters between July 2020 and March 2022 seeking progress from the Plaintiff's solicitor, all of which went unanswered. The Defendant indicated an intention to apply for dismissal given the delay and lack of progress, particularly as nearly 12 years had elapsed since the incident. The Plaintiff served a Notice of Intention to Proceed in January 2023, and the case was ready to be listed for hearing.

Legal Issues Presented

1. Whether the delay in prosecuting the Plaintiff's claim was inordinate.
2. Whether any such delay was inexcusable.
3. Whether, in the exercise of the Court's discretion, the balance of justice favoured dismissal of the proceedings.

Arguments of the Parties

Defendant's Arguments

• The delay of over twelve years from the incident to the application to dismiss was inordinate and prejudicial.
• The claim relies heavily on oral testimony, which is vulnerable to fading memories, thus causing prejudice.
• The Plaintiff failed to respond to repeated correspondence requesting progress, evidencing a lack of intent to prosecute.
• The Plaintiff's explanations for delay, including financial difficulties and loss of employment, lacked supporting documentation and did not excuse the delay.
• The Defendant emphasized the public interest in timely administration of justice and cited relevant case law supporting dismissal for want of prosecution.

Plaintiff's Arguments

• The Plaintiff acknowledged the delay was inordinate but attributed some delay to changes in legal representation and the COVID-19 pandemic.
• Personal circumstances, including loss of employment and lack of financial resources, contributed to the delay and should be considered excusable.
• The Plaintiff highlighted that the case had been listed for hearing twice and was now ready to proceed, distinguishing it from cases where dismissal is usually granted.
• The Plaintiff contended that engagement with Defendant's experts during the delay period was a step in the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court accepted that the delay in prosecuting the claim was inordinate, noting that a period exceeding thirteen years before reaching a hearing was excessive. The Court recognized that some delay was contributed to by the Defendant, particularly regarding the late completion of discovery. The most significant delay was the final period post-summer 2020, during which the Plaintiff's solicitors failed to respond to repeated correspondence from the Defendant's solicitors over approximately twenty months.

Regarding excusability, the Court found the Plaintiff's explanations of financial difficulty and loss of employment insufficient, especially given the absence of communication or responses to the Defendant's solicitor's letters. The Court emphasized that it is not acceptable for a party to cease prosecuting proceedings without informing the opposing party, and that the lack of response was a serious factor weighing against excusing the delay.

In balancing justice, the Court acknowledged the significant prejudice dismissal would cause the Plaintiff, who had a claim for substantial personal injury. The Court also noted the Plaintiff's right to access the courts is constitutionally protected but subject to a duty of expedition. The Defendant's right to expedition was impaired, but the Defendant had also contributed to delays, and no specific prejudice such as loss of witnesses or documents was demonstrated.

The Court further observed that the Defendant had notice of the claim shortly after the incident and had opportunity to investigate early on, mitigating the risk of prejudice from faded memories. The nature of the claim—a single, dramatic event—also reduced the risk of evidential injustice. The fact that the case had been listed twice for hearing and was now ready to proceed was a key factor against dismissal.

Ultimately, the Court was not satisfied that the balance of justice clearly favored dismissal. The hardship to the Plaintiff of denying access to trial was disproportionate to any prejudice claimed by the Defendant. However, the Court expressed concern over the Plaintiff solicitor's non-response to correspondence and indicated this would be relevant to any costs orders.

Holding and Implications

The Court REFUSED to dismiss the Plaintiff's proceedings for want of prosecution or on grounds of inordinate and inexcusable delay. The delay, while inordinate and partially unexplained, did not produce sufficient prejudice to the Defendant to justify dismissal. The case was ordered to proceed without further delay.

The direct effect is that the Plaintiff's claim remains extant and must be progressed promptly to hearing. No new legal precedent was established. The Court signaled that the Plaintiff's solicitor’s failure to respond to extensive correspondence over a prolonged period was a serious matter and may influence costs decisions in this or related applications.