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Casey v Skehan and Ors (Approved)
Factual and Procedural Background
The Plaintiff commenced proceedings for personal injuries allegedly caused by professional negligence arising from a gynaecological mesh insertion on 30 January 2015 at The Hospital. The Plaintiff alleges ongoing pain and successive investigations between 2015 and 2019, including a cystoscopy on 27 April 2017 and additional procedures in August 2017 and February 2019. The Sixth Named Defendant (a Consultant Urologist) treated the Plaintiff between late 2015 and April 2016 and was alleged to have failed to offer Botox or to recommend total mesh excision. Proceedings were issued by Personal Injuries Summons on 18 April 2019 against the First to Fifth Named Defendants. The Sixth Named Defendant was joined by order of the Court in March 2022. The Sixth Named Defendant died on 24 March 2024. The Sixth Named Defendant brought a motion to strike out the Plaintiff's proceedings against him for inordinate and inexcusable delay (pre‑ and post‑commencement), seeking dismissal for want of prosecution. Judge Jackson delivered judgment on 25 February 2026.
Legal Issues Presented
- Whether the Plaintiff's pre‑ and post‑commencement delay in prosecuting the claim against the Sixth Named Defendant is inordinate and inexcusable and therefore warrants dismissal for want of prosecution.
- Whether, having regard to the Sixth Named Defendant's death, any prejudice arising from delay justifies striking out the claim against him.
- How the principles set out in Kirwan v. Connors and O'Domhnaill v. Merrick apply to the facts of this case (including the appropriate threshold for dismissal based on periods of inactivity).
Arguments of the Parties
Sixth Named Defendant's Arguments
- The Plaintiff delayed almost six years between cessation of the Sixth Named Defendant's care (April 2016) and commencing proceedings against him (March 2022), with additional delays after commencement.
- The substance of the claim against the Sixth Named Defendant was known by 2017 and the delay is therefore inordinate; reference made to Celtic Ceramics Limited v. IDA, Hunt and Others.
- The claim is relatively narrow and not complex, so delay is not excused by overall case complexity.
- Prejudice is severe because the Sixth Named Defendant is deceased and direct input/treating notes are unclear or possibly minimal, making a fair defence difficult or impossible.
- Accrued delays, including late replies to Notices for Particulars and delay in taking instructions, increase the risk of an unfair trial.
Plaintiff's Arguments
- The case falls within a period of inactivity of less than two years for relevant steps and, under O'Domhnaill v. Merrick principles and Kirwan v. Connors, dismissal should only follow if there is abuse of process or prejudice to the level required by O'Domhnaill.
- Expert evidence confirming a distinct breach by the Sixth Named Defendant was not received until November 2020; clarification and procedural steps followed thereafter, including pandemic court closures and the Plaintiff's significant ill health and ongoing complex treatments.
- The Amended Summons was served promptly after the joinder order and substantial medical discovery was provided in December 2022; no identifiable prejudice has been shown by the Sixth Named Defendant.
- The balance of justice favours permitting the claim to proceed; the claim against the Sixth Named Defendant is said to be narrow and amenable to resolution by expert evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Celtic Ceramics Limited v. IDA, Hunt and Others 1992 WJSC-HC 3185 and 1998 WJSC-SC 656 | Referenced by the Sixth Named Defendant in support of dismissal for delay. | Cited as authority relied upon by the moving party; the Court considered but did not base dismissal solely on this authority. |
| Cunningham v. Neary [2004] IESC 432 | Invoked by the Sixth Named Defendant; relates to date of knowledge under statute of limitations. | The Court noted Cunningham concerned a different statutory issue (date of knowledge) and is not directly determinative of the present delay application. |
| O'Domhnaill v. Merrick [1984] I.R. 151 | Principles for dismissal for want of prosecution where delay may amount to abuse or cause prejudice. | The Court applied O'Domhnaill in balancing prejudice to plaintiff and defendant but found the O'Domhnaill threshold was not met on the evidence. |
| Kirwan v. Connors [2025] IESC 21 | Sets the modern test for dismissal for inactivity: two‑year, four‑year and five‑year milestones and related presumptions. | The Court applied paragraph 26(i) of Kirwan (pre‑two‑year rule): until two years inactivity, dismissal only for abuse or O'Domhnaill‑level prejudice; concluded the case fell to be considered under that limb. |
| Dennis Guilfoyle Developments Limited v. Wardrop [2025] IEHC 414 | Example of post‑Kirwan case law on lengthy inactivity and need for oral evidence. | Referred to as illustrative of longer‑delay cases; distinguished on facts (longer delays than present). |
| Nowak v. Institute of Chartered Accountants in Ireland [2025] IEHC 408 | Another post‑Kirwan example involving extended inactivity. | Referred to for comparison; the Court noted those cases involved far longer inactivity than here. |
| Neister v. Leinster Senior College Limited [2026] IEHC 15 | Restatement and application of Kirwan principles in High Court decisions. | Used to reinforce Kirwan principles and to confirm approach to dismissal and case management directions. |
| Holmes v Ireland and Ors [2026] IEHC 2 | Summarises Kirwan principles and factors relevant to dismissal for want of prosecution. | Cited for the articulation of Kirwan principles and their practical application to similar motions. |
| Gilchrist v. Sunday Newspapers Limited [2017] IECA 190 | Dictum on when courts may strike out as abuse of process where plaintiff has no ulterior purpose. | Applied as guidance on abuse of process threshold; Court found abuse not established here. |
| Dunnes Stores v. An Bord Pleanála [2015] IEHC 716 | Guidelines referenced on abuse of process and striking out. | Referred to in considering whether strike out for abuse was appropriate; assisted the Court's analysis. |
Court's Reasoning and Analysis
The Court framed the application by reference to the Kirwan v. Connors framework and related authorities. It identified significant pre‑commencement delay (cessation of care April 2016 to joinder March 2022) and post‑commencement concerns (notably long delays in replying to a Notice for Particulars and in seeking discovery). The Plaintiff's explanations included late expert clarification (November 2020), pandemic court closures, and the Plaintiff's ongoing serious ill health and multiple treatments. The Sixth Named Defendant relied on prejudice resulting from his death and the asserted paucity of treating notes and direct witness input.
The Court accepted that pre‑ and post‑commencement delays exist but concluded the case did not meet the threshold for dismissal under paragraph 26(i) of Kirwan (i.e. the case had not remained inactive for two years without a step). The Court found no sufficient evidence that the Plaintiff's delay was inexcusable or that the O'Domhnaill balancing required dismissal. The Court also emphasised the applicant's lack of evidential material showing attempts to secure the deceased's records or to establish that no other sources of relevant witness evidence existed; had such enquiries been made and shown to be fruitless, the prejudice analysis might differ. On the material before the Court, the balance of justice did not favour striking out the claim against the Sixth Named Defendant.
Holding and Implications
Holding: The Sixth Named Defendant's motion to strike out the Plaintiff's proceedings against him was REFUSED.
Implications: The claim against the Sixth Named Defendant remains extant and will proceed; no new legal precedent was established—the Court applied existing Kirwan/O'Domhnaill principles to the facts and found them not to require dismissal. The Court indicatively reserved costs of the application to the hearing of the action and invited submissions on costs within 14 days.
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