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Coleman, Gilmartin v Depuy International Ltd and Ors, Depuy International Ltd and Ors (Approved)
Factual and Procedural Background
This judgment determined two related motions seeking the same relief in personal injury actions arising from hip replacement surgeries and alleged injury from a defective hip product, and the parties agreed that both could be resolved together because the legal issues were substantially the same. [Para 23][Para 24] Both claims had been struck out after failure to comply with unless orders requiring discovery of medical records within fixed time limits, and each Plaintiff sought to have the dismissal set aside or, alternatively, to extend time for compliance. [Para 24][Para 25]
In the first case, Plaintiff A’s claim arose from hip surgery in 2009, revision surgeries in 2010 and 2020, a personal injury summons issued in 2020, a discovery request in 2021, a consent order in 2023, and an unless order made on 6 February 2025 after a contested dismissal motion; discovery was ultimately delivered about three to four weeks late. [Para 27][Para 28] In the second case, Plaintiff B’s claim arose from hip surgery in 2009 and revision surgery in 2018, a personal injury summons issued in 2018, a consent discovery order in 2024, and an unless order made on 16 January 2025 after a contested motion to dismiss. [Para 31][Para 32]
Legal Issues Presented
- Whether “special circumstances” existed to justify relief from the consequences of the unless orders under Order 27, rule 15 and/or the Court’s inherent jurisdiction. [Para 25][Para 36][Para 40]
- Whether non-service of the relevant order under Order 27, rule 18(4) materially affected the strike-out consequences. [Para 41][Para 42][Para 87][Para 115]
- Whether the Court should set aside the dismissal outright or instead grant a shorter extension for discovery in the interests of justice. [Para 96][Para 100][Para 133]
Arguments of the Parties
Plaintiff A’s Arguments
- The unless order was never served, so it did not enter counsel’s critical dates register and the Plaintiff lacked proper notice of a draconian strike-out consequence. [Para 84][Para 86][Para 87]
- The Plaintiff had acted in good faith and tried to comply, but hospital delays and the breadth of the discovery request made compliance difficult. [Para 88][Para 89][Para 90]
- Discovery had been provided in substance and the remaining disputes were said to concern clarification rather than non-compliance. [Para 93]
Plaintiff B’s Arguments
- Severe personal and medical difficulties, including depression, cognitive impairment, anxiety, and medication-related side effects, materially affected the ability to give instructions. [Para 103][Para 105][Para 106][Para 107]
- The discovery exercise was unusually difficult because of fragmented recollection, GDPR-related issues, and the need to pursue records from multiple providers. [Para 110]
- The unless order was not served, and discovery had already been provided in substance through earlier affidavits and correspondence. [Para 112][Para 114][Para 115]
- The seriousness of the claim was said to matter in the context of a court-sanctioned ADR process for these claims. [Para 118]
Defendants’ Arguments
- Non-service should not amount to special circumstances because the order was made in contested hearings attended by legal representatives, who knew the consequences. [Para 84][Para 86][Para 116][Para 117]
- The Plaintiffs’ evidence was said to be vague, unsupported, or overstated, and therefore insufficient to establish special circumstances. [Para 108][Para 109][Para 111]
- In Plaintiff B’s case, the Defendants urged consideration of reputational damage to the surgeon and argued that the plaintiff’s default was not excused by the lack of service. [Para 128][Para 42]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Power v CJSC Indigo Tajikistan, Telia Company AB and AGA Khan Fund For Economic Development SA [2025] IESC 55 | “Special circumstances” should be assessed in the round; the term is not a separate “gateway” test. [Para 44][Para 51] | The Court treated this as the leading authority and used it to frame the entire analysis in both motions. [Para 48][Para 100][Para 120][Para 121][Para 132] |
| Murphy v HSE [2021] IECA 3 | Inadvertence or inattention by legal advisers will rarely amount to special circumstances. [Para 49][Para 54] | The Court adopted this as part of the governing approach to procedural default. [Para 51][Para 80] |
| Nolan v. Board of Management of St. Mary's Diocesan School [2022] IECA 10 | Part of the Court of Appeal line of authority considered in Power. [Para 49] | The case was noted as part of the development of the modern “special circumstances” analysis. [Para 49] |
| Kearns v. Evenson [2023] IECA 297 | The renewal test is not a two-stage process with different tests at each stage. [Para 49][Para 51] | The Court relied on this to reject any rigid gateway analysis. [Para 51][Para 75] |
| Bowe v Sherriff & others [2025] IECA 14 | “Special circumstances” is higher than “good reason” and must involve something beyond the ordinary. [Para 56] | The Court adopted that formulation in its summary of principles. [Para 57][Para 78][Para 79] |
| De Souza v Liffey Meats (Cavan) Unlimited Company & Ors [2023] IEHC 402 | “Special circumstances” requires a fact or circumstance beyond the ordinary or usual. [Para 56][Para 57] | The Court used this to support the higher-threshold description of the test. [Para 57][Para 78] |
| Cropper v Smith (1884) 2 Ch. D. 700 | Courts exist to decide rights, not to punish mistakes, and should correct error where justice permits. [Para 58][Para 59][Para 61] | The Court cited this as a core statement of the interests-of-justice approach. [Para 62][Para 69][Para 70] |
| Desmond | The interests of justice require regard to the substance of what is at stake for each party. [Para 63] | The Court used it to support a holistic balancing exercise rather than a formalistic one. [Para 64] |
| Everyday Finance and others v White and others [2023] IEHC 624 | Procedural decisions are fact-specific and should serve the administration of justice. [Para 65][Para 67][Para 68] | The Court accepted its general principles but declined to embark on a merits assessment at interlocutory stage. [Para 69][Para 72] |
| McGuinn v Commissioner of An Garda Siochana & others [2011] IESC 33 | The courts lean toward resolving litigation on its merits. [Para 65][Para 69] | The Court used it to reinforce the preference for substantive determination where possible. [Para 69][Para 72] |
| Murphy v J. Donoghue [1996] 1 IR 123 | Procedural rules exist to serve justice and must not defeat it. [Para 65][Para 70] | The Court relied on this as part of its broader justice-based approach. [Para 70] |
| Bank of Scotland plc v McDermott [2017] IEHC 77 | The Court has an inherent jurisdiction to set aside a default judgment where it is just and equitable. [Para 71] | Used as authority for the proposition that the Rules are additional to, not substitutive of, inherent jurisdiction. [Para 71] |
| AIB v Forde | Approved the same inherent-jurisdiction approach referred to in Bank of Scotland. [Para 71] | It was mentioned only as an approving reference in the chain of authority. [Para 71] |
| Emo Oil -v- Willow Rock [2016] IECA 200 | Supports the principle that procedure should not defeat justice. [Para 71] | The Court referred to it alongside McGuinn and Cropper in summarising the relevant approach. [Para 71] |
| Mercantile Credit Corporation of Ireland v Heelan [1998] 1 IR 81 | Strike-out for discovery default is discretionary and should not be exercised where omission is not culpable, such as where illness or memory loss is involved. [Para 122][Para 123] | The Court treated this as directly relevant to Plaintiff B’s medical difficulties. [Para 123] |
Court's Reasoning and Analysis
The Court began from the proposition in Power that “special circumstances” are to be assessed in the round, not through a separate gateway inquiry, and it rejected any attempt to turn the test into a rigid two-stage exercise. [Para 48][Para 51][Para 72][Para 79][Para 80] It also emphasised that the merits of the underlying action should not be weighed at interlocutory stage as though the Court were deciding the case itself. [Para 72]
For Plaintiff A, the Court accepted that the failure to serve the unless order mattered because Order 27, rule 18(4) required service of dismissal orders and the short period between expiry of the order and delivery of discovery was only three to four weeks. [Para 87][Para 96][Para 97][Para 100] The Court considered that the combination of non-service, the brief delay, and the absence of prejudice to the Defendants made it disproportionate to leave the action struck out. [Para 96][Para 98][Para 101]
For Plaintiff B, the Court treated the medical evidence and resulting difficulty in obtaining instructions as the central consideration. [Para 103][Para 105][Para 106][Para 120][Para 124] It accepted that the discovery process had become unusually difficult, that an affidavit of discovery had already been delivered, and that the consequences of keeping the action struck out would be far more serious for the Plaintiff than any prejudice identified by the Defendants. [Para 112][Para 113][Para 126][Para 127][Para 129][Para 131] The Court therefore concluded that the circumstances, taken together, met the special-circumstances threshold. [Para 132]
Holding and Implications
RELIEF GRANTED IN SUBSTANCE — the Court accepted that special circumstances existed in Plaintiff A’s case and regarded it as disproportionate to keep that action struck out. [Para 96][Para 101]
CONDITIONAL RELIEF IN PLAINTIFF B’S CASE — the Court did not simply set aside the Deputy Master’s order; instead, it extended time for compliance with discovery by three weeks from perfection of the order, while leaving the unless order in place if discovery was still not made. [Para 132][Para 133]
The judgment applies established authorities to two fact-specific discovery defaults and does not announce a new rule beyond the existing “special circumstances” and interests-of-justice framework. [Para 44][Para 64][Para 80][Para 120][Para 121]
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