Background
Daniel Coleman and Patrick Gilmartin each sued over injuries allegedly caused by DePuy ASR hip products. Their actions had been automatically dismissed after they did not comply within the deadlines set by Deputy Master unless orders requiring medical-record discovery.
Mr Coleman delivered the required discovery around three to four weeks late. Mr Gilmartin had previously delivered an affidavit of discovery, but further discovery remained outstanding. Both plaintiffs sought to set aside the dismissals or, alternatively, extend time for compliance.
The Court’s Holding
Mr Justice Nolan set aside the dismissal of Mr Coleman’s action. Taken together, the defendants’ failure to serve the dismissal order as required by Order 27, rule 18(4), the resulting failure to activate the solicitors’ critical-dates register, the short delay, and the absence of prejudice to the defendants were special circumstances justifying relief under Order 27, rule 15(1).
The Court reached a different procedural result for Mr Gilmartin. His depression, cognitive impairment, anxiety, medication-related neurological effects, difficulty providing instructions, prior discovery, and the severe consequence of losing his claim amounted collectively to special circumstances. But rather than setting aside the unless order outright, the Court extended the time to comply by three weeks from perfection of the order; if discovery is not made, the action will again stand struck out.
Key Takeaways
- “Special circumstances” must be assessed holistically and in the interests of justice, rather than as a separate gateway test.
- Failure to serve a dismissal order as required by the Rules can materially support relief, particularly where the delay is short.
- Personal and medical difficulties affecting a claimant’s ability to provide instructions may justify an extension, but compliance conditions can remain in force.
Why It Matters
The decision applies the Supreme Court’s approach in Power to self-executing unless orders. It confirms that procedural defaults are serious, but that dismissal should not be disproportionate where the circumstances, viewed as a whole, justify relief and no unfairness is caused to the opposing party.