A [A person with Disabilities] v Health Service Executive & Anor (Approved)

Factual and Procedural Background

The Plaintiff, a young man born prematurely at 24 weeks and three days, alleges medical negligence arising from treatment received shortly after birth at The Hospital. The claims focus on events between 19 January and 23 January 2003, including the contraction of MRSA and sepsis, delayed diagnosis and treatment of septicaemia, alleged doctoring of medical records, non-disclosure of infection, and fraud. The Plaintiff suffered partial amputation of his left foot and toes and was later diagnosed with autism spectrum disorder and depressive disorder, which he alleges were caused by the defendants' negligence.

The proceedings were initiated without legal representation and have a complex procedural history involving multiple prior sets of proceedings related to the Plaintiff’s birth injuries and associated medical treatment. Earlier litigation, including proceedings commenced in 2011 and 2021, were settled or struck out, often due to lack of sufficient expert medical evidence. The current proceedings were brought by the Plaintiff represented by his mother as next friend, with no solicitors on record. The Defendants applied to strike out the proceedings on the basis that they disclose no cause of action, are frivolous and vexatious, bound to fail, or an abuse of process, invoking the court's inherent jurisdiction and also seeking relief under section 10(3) of the Civil Liability and Courts Act 2004.

An application for a Litigation Restriction Order ("LRO"), akin to an Isaac Wunder order, was also made to prevent the Plaintiff and his mother from issuing further proceedings without prior court permission, due to a history of repetitive litigation on the same issues.

Legal Issues Presented

1. Whether the proceedings disclose a reasonable cause of action or are bound to fail or constitute an abuse of process, justifying dismissal under the court’s inherent jurisdiction.
2. Whether the Plaintiff’s claim should be stayed or dismissed under section 10(3) of the Civil Liability and Courts Act 2004 for failure to comply with pleading requirements.
3. Whether a Litigation Restriction Order should be granted to restrain the Plaintiff and his mother from issuing further proceedings without court permission, given the history of repetitive litigation.

Arguments of the Parties

Defendants' Arguments

• The proceedings should be struck out as they disclose no cause of action, are bound to fail, frivolous and vexatious, or constitute an abuse of process.
• There is a lack of credible expert medical evidence supporting the Plaintiff’s claims of negligence and causation.
• The pleadings fail to comply with the detailed requirements of section 10(3) of the Civil Liability and Courts Act 2004.
• A Litigation Restriction Order is justified due to the Plaintiff and his mother’s repeated attempts to litigate the same issues, imposing significant burden on the Defendants and court resources.

Plaintiff's Arguments

• The Plaintiff, represented by his mother, contends the Defendants’ application is unjustified and that the claims are neither frivolous nor vexatious.
• The Plaintiff relies exclusively on the expert reports of Dr. Fogarasi to support the claims of negligence and causation.
• The Plaintiff objects to the Litigation Restriction Order, asserting it would unjustly hinder access to justice and is an aggravation of injury and waste of resources.
• The Plaintiff’s mother indicated an intention to bring further proceedings and disputed the Defendants’ characterization of the litigation as vexatious.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined the Defendants’ motion to dismiss based on the absence of credible medical evidence. It reviewed the expert reports, notably those of Dr. Rothburn, Dr. Sweet, and Dr. Fogarasi. The first two reports failed to establish negligence or causation. Dr. Fogarasi’s reports, while critical of certain aspects of care, lacked clarity on causation and contained contradictions, but nonetheless suggested that delayed removal of an arterial line caused the Plaintiff’s foot injury. The court found this evidence borderline yet sufficient to refuse dismissal under the inherent jurisdiction.

Regarding the relief under section 10(3) of the Civil Liability and Courts Act 2004, the court found the pleadings deficient as they failed to reflect the narrowed scope of negligence supported by the latest expert report and contained unsupported claims (e.g., autism diagnosis causation). Consequently, the court ordered a stay of proceedings pending amendment of the personal injury summons to comply with statutory pleading requirements, with a three-month deadline to deliver amended pleadings.

In relation to the Litigation Restriction Order, the court considered the extensive history of repetitive litigation initiated by the Plaintiff and his mother, including multiple sets of proceedings with overlapping issues that were settled, struck out, or discontinued. The court acknowledged the significant burden on the Defendants and the courts, and the public interest in finality and efficient resource management. It balanced this against the Plaintiff’s right of access to courts, noting the absence of bad faith by the Plaintiff’s mother and her motivation to seek justice. The court concluded that a proportionate LRO was justified to require prior court permission before issuing further proceedings related to the Plaintiff’s medical treatment, thereby acting as an early filter to prevent vexatious litigation while preserving access rights.

Holding and Implications

The court’s final decision is as follows:

• The application to dismiss the proceedings is refused.
• The proceedings are stayed under section 10(3) of the Civil Liability and Courts Act 2004 pending the Plaintiff’s delivery of an amended personal injury summons compliant with statutory requirements within three months.
• A Litigation Restriction Order is granted restraining the Plaintiff, the Plaintiff’s mother, and any person acting on their behalf from instituting further proceedings against the Defendants relating to the Plaintiff’s medical treatment without prior permission of the President of the High Court or a delegated judge.
• The Defendants are awarded 75% of their costs with a stay on enforcement until 14 March 2025, with liberty to apply to lift the stay before the personal injury judge.

These rulings directly affect the parties by allowing the current claim to proceed only after amendment and restricting future litigation to prevent abuse of process. No new legal precedent is established beyond the application of existing principles concerning expert evidence, pleading requirements, and litigation restriction orders.