Factual and Procedural Background
The proceedings arose from spinal surgery performed on the Plaintiff at The Hospital in The City on 26 June 2014. The Plaintiff alleged that the surgery was performed without informed consent and that the Defendant was negligent in preparing him for the procedure. [Para 13]
The Personal Injuries Summons issued on 1 November 2018 and was served on the Defendant on 23 October 2019. The Defendant entered an appearance on 22 November 2019, reserving its position that the claim was statute-barred, and repeatedly sought proper particulars, verification affidavits, and confirmation of expert support. [Para 15][Para 16]
The Plaintiff served updated particulars and confirmed expert support on 23 August 2021, and the verification affidavits were filed on 22 September 2021. The Defendant treated that filing as the last substantive procedural step before bringing the present motion on 5 February 2026. [Para 17]
The Plaintiff later sent a 28-day warning letter on 23 October 2023 and issued a motion for judgment in default of defence only after the Defendant had brought the present application. By the hearing on 23 July 2026, no pleading had been delivered particularising the personal injuries alleged or the causal connection between those injuries and the pleaded negligence. [Para 19][Para 20][Para 21]
Legal Issues Presented
- Whether the Defendant was entitled to dismissal of the claim for want of prosecution under Order 122, rule 11 and the Court's inherent jurisdiction because of inordinate and inexcusable delay. [Para 11][Para 23][Para 76][Para 77]
- Whether the Plaintiff's 23 October 2023 warning letter constituted a "proceeding" for the purposes of Order 122, rule 11. [Para 19][Para 38][Para 40][Para 42]
- Whether the Plaintiff's explanations for delay were legally sufficient to excuse approximately four years and four months of inactivity. [Para 50][Para 51][Para 52][Para 54]
- Whether the oral-evidence-driven nature of the case, together with the Defendant's lack of acquiescence and the absence of particulars, meant the balance of justice favoured dismissal. [Para 58][Para 59][Para 62][Para 63][Para 68][Para 74]
Arguments of the Parties
Plaintiff's Arguments
- The 23 October 2023 warning letter amounted to a "proceeding" and therefore interrupted the period of inactivity under Order 122, rule 11. [Para 19][Para 38][Para 40]
- The delay was said to be explained by the dissolution of a former partnership, staffing difficulties, Covid-19 restrictions, bereavement, and maternity leave. [Para 50]
- Counsel also relied on observations in Kirwan v Connors concerning voluntary discovery by analogy. [Para 44][Para 45]
Defendant's Arguments
- The claim should be dismissed for want of prosecution because there had been no substantive step since 22 September 2021, leaving a period of roughly four years and four months of inactivity. [Para 17][Para 46][Para 48]
- The warning letter did not amount to a proceeding and could not restart the clock. [Para 38][Para 40][Para 42]
- The Plaintiff still had not identified the personal injuries alleged or the causal connection said to exist between those injuries and the pleaded negligence. [Para 20][Para 68]
- The case depended heavily on oral evidence about consent, advice, risks, and what occurred in 2014, making it vulnerable to delay. [Para 57][Para 58][Para 59][Para 69]
- The Defendant had not acquiesced in the delay; it repeatedly sought particulars, expert evidence, and discontinuance or progression of the case. [Para 16][Para 62][Para 63]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kirwan v Connors [2025] IESC 21 |
Confirmed the significance of Order 122, rule 11; identified about two years and four years of inactivity as important milestones; stated that after four years a claim dependent on oral evidence should generally be dismissed unless compelling reasons are shown; and emphasised that the plaintiff bears responsibility for prosecuting the case. [Para 23][Para 29][Para 30][Para 34] |
The court used Kirwan to hold that the relevant inactivity period was approximately four years and four months, that the case fell within the four-year category, and that dismissal was the presumptive outcome absent compelling reasons. [Para 37][Para 46][Para 48][Para 71][Para 74] |
| McBrearty v North Western Health Board [2007] IEHC 431 |
Referred to on the principle that solicitor difficulties, staffing shortages, office disorganisation, and professional pressures do not ordinarily provide a legally sufficient excuse for prolonged inactivity. [Para 35] |
The court relied on this authority in rejecting the Plaintiff's explanation for delay as legally insufficient. [Para 54] |
| McAndrew v Egan [2017] IEHC 345 |
Referred to on the principle that internal law-office difficulties are ordinarily not enough to excuse prolonged delay. [Para 35] |
The court grouped this authority with the others supporting the conclusion that the Plaintiff's explanations did not justify the period of inactivity. [Para 54] |
| Power v Creed [2018] IEHC 688 |
Referred to on the same principle that administrative or staffing problems do not usually excuse lengthy inactivity. [Para 35] |
The court applied this authority together with McBrearty and McAndrew in rejecting the delay explanations advanced by the Plaintiff. [Para 54] |
Court's Reasoning and Analysis
The court first identified the filing of the affidavits of verification on 22 September 2021 as the last substantive procedural step. It rejected the Plaintiff's submission that the 23 October 2023 warning letter was a "proceeding" because the letter neither advanced the litigation nor altered the parties' procedural position. [Para 37][Para 38][Para 40][Para 42]
Judge Coffey held that the Rule itself supported that conclusion, since even a motion on which no order has been made is not a proceeding, and a mere threatened motion could not have greater procedural significance than the motion itself. [Para 40]
Applying Kirwan v Connors, the court found approximately four years and four months of inactivity, placing the case squarely within the category where dismissal is generally expected unless the Plaintiff can show compelling reasons to proceed. [Para 46][Para 47][Para 48][Para 71]
The court accepted that the Plaintiff's explanations were genuine, but held that they did not account for the full period of dormancy and therefore did not amount to a legally sufficient excuse. [Para 50][Para 51][Para 52][Para 54]
The court also treated the case as one that depended substantially on oral evidence about consent, advice, and what occurred in 2014, and it found that the Defendant had not acquiesced in the delay. Those features, together with the continuing failure to plead the personal injuries claimed, led the court to conclude that the balance of justice favoured dismissal. [Para 58][Para 59][Para 62][Para 63][Para 68][Para 69][Para 74]
Holding and Implications
DISMISSED FOR WANT OF PROSECUTION. The court ordered that the proceedings be dismissed under Order 122, rule 11 and, if necessary, under the inherent jurisdiction of the Court. The parties were to be heard on the precise terms of the order and on costs. [Para 76][Para 77][Para 78]