Background
The plaintiff sued the Health Service Executive over spinal surgery performed at Merlin Park University Hospital, Galway, on 26 June 2014. He alleged that the operation was performed without his informed consent and that he had been negligently prepared for it. A Personal Injuries Summons was issued in November 2018 and served in October 2019.
After updated negligence particulars and affidavits of verification were served and filed in August and September 2021, the plaintiff took no substantive step to advance the case. In October 2023, his solicitors warned that they would seek judgment in default if a defence was not delivered, but made no such application until after the HSE moved in February 2026 to dismiss the action. The plaintiff had also not particularised the injuries allegedly caused by the claimed negligence or the asserted causal link.
The Court’s Holding
Mr Justice Coffey dismissed the proceedings for want of prosecution under Order 122, rule 11 of the Rules of the Superior Courts and, if necessary, under the Court’s inherent jurisdiction. The last substantive procedural step was the filing of verification affidavits on 22 September 2021. The October 2023 warning letter was not a “proceeding” for the rule’s purposes: it neither advanced the case nor led to the threatened default-judgment motion.
That left about four years and four months of inactivity. Applying Kirwan v Connors, the Court held that dismissal is generally required after four years of inactivity where a claim depends on oral evidence, absent compelling reasons to continue. The explanations offered—practice dissolution, staffing difficulties, Covid-19, bereavement and maternity leave—were genuine but did not excuse the full delay. The HSE had not acquiesced, and the central consent issues depended on recollections of discussions in 2014.
Key Takeaways
- A warning letter threatening a procedural application is not necessarily a “proceeding” that resets time under Order 122, rule 11.
- After roughly four years of inactivity, an orally dependent claim will generally be dismissed unless compelling reasons justify continuation.
- Law-office disruption and personal difficulties may explain parts of a delay but will not necessarily provide a legally sufficient excuse for prolonged inactivity.
Why It Matters
The decision applies the Supreme Court’s recent guidance in Kirwan v Connors to a medical-negligence claim concerning informed consent. It underscores the particular vulnerability of claims turning on what clinicians and patients said, understood and agreed many years earlier.
It also confirms that plaintiffs remain responsible for moving litigation forward. A defendant that presses for particulars, expert confirmation and progress will not ordinarily be treated as having accepted delay merely because it did not itself advance the plaintiff’s case.