The Court of Appeal has set aside the order of Mr Justice Max Barrettstriking out personal injuries proceedings on the grounds of inordinate and inexcusable delay.
In June 2015, Shauna Reilly was employed by Campbell Catering Ltd, trading as Aramark, in the cafe it operated at Our Lady’s Children’s Hospital, Crumlin, when she sustained injuries having fallen on the stairwell.
Authorisation issued pursuant to the Personal Injuries Assessment Board Acts 2003 to 2019 s.17 in January 2017 in relation to an application to the Personal Injuries Assessment Board (PIAB) in respect of Aramark and the hospital, and in May 2017 in respect of the second defendant, Momentum Property Support Services Ltd.
In the High Court, Mr Justice Barrett struck out the proceedings for inordinate delay. Ms Reilly appealed.
Court of Appeal
Ms Reilly relied on Cassidy v The Provicialate  IECA 74, Lismore Builders Ltd v Bank of Ireland Finance Ltd  IESC 6 and Collins v Minister for Justice  IECA 27 in outlining the appellate jurisdiction to review orders to dismiss for inordinate and inexcusable delay. Counsel said that while there must be due consideration to the trial judge’s conclusions, it was open to the judges to exercise their discretion in a different manner if satisfied that the interests of justice so require.
Counsel submitted that the trial judge made “clear errors of principle” and that the interests of justice favoured a reversal of his decision given, inter alia, the duration of the delay, the fact that the delay was all pre-commencement, and the fact that the claim is not time barred.
Counsel cited Primor plc v Stokes Kennedy Crowley, Rainsford v Limerick Corporation  2 ILRM 561, Comcast International Holdings Inc v Minister for Public Enterprise  IESC 50 and Millerick v Minister for Finance  IECA 206 as authorities which have developed the so-called Primor test to be applied in applications to dismiss for inordinate and inexcusable delay. Counsel said that the onus is on the respondent to prove that the delay is inordinate and inexcusable. Counsel said the trial judge failed to determine whether actual prejudice arose, and failed to balance that against Ms Reilly’s constitutional rights of access to justice.
ISS Ireland Ltd, trading as ISS Facility Services (ISS) acknowledged the Court of Appeal’s jurisdiction to review the decision of the High Court but asserted that the judges must pay due deference to High Court’s view, in particular its findings of fact.
Reference was made to Mr Justice Frank Clarke’s judgment in Comcast International Holdings Inc v Minister for Public Enterprise where he noted “…the threshold which must be surmounted to justify the dismissal of proceedings where there is no culpable delay on the part of the plaintiff must necessarily be more onerous than that which applies in the case of culpable delay”.
Counsel for ISS acknowledged that the burden rested with ISS to establish that the delays on the part of Ms Reilly were both inordinate and inexcusable.
Ms Justice Máire Whelan noted that the order dismissing the proceedings involved an exercise of the High Court’s discretion. Citing the Supreme Court decision in Vella v Morelli  IR11, she said that while an appellate court will be slow to intervene in such an exercise, it is clear that an appellate court is entitled to substitute its own discretion in place of that of the High Court judge, especially where that discretion was based on an incorrect premise. The court also referred in this regard to the judgment of Mr Justice John McMenamin in Lismore Builders Ltd v Bank of Ireland Finance Ltd, and the decision of Ms Justice Mary Irvine in Collins v Minister for Justicewhere she considered that the structure and language of Article 34.4.3° presupposed that the right of appeal from the High Court would be a full one.
The court summarised the three-step Primor test in the following terms: First, having regard to the nature of the proceedings and all of the relevant circumstances, is the plaintiff’s delay to be considered inordinate? Second, if the plaintiff’s delay is inordinate, can it be excused? Third, if the plaintiff’s delay is inordinate and inexcusable, does the balance of justice favour the dismissal of the proceedings, having regard to all of the relevant circumstances including matters such as delay or acquiescence on the part of the defendant and the potential prejudice resulting from the delay?
Mr Justice Barrett had found that there had been non-compliance by Ms Reilly the reporting obligations pursuant to s.8 of the 2004Act. Ms Justice Whelan found that reporting obligation were “wholly immaterial to the exercise to be undertaken by the trial judge”.
Ms Justice Whelan said that consideration of Simpson v Norwest Holst Southern Ltd and Cressey v E. Timm & Son Ltd led the trial judge into further error “insofar as the said judgments, when viewed in their totality, are not relevant to the issue which was before the trial judge”. The court found that the High Court judge had misled himself in that regard. The judges also found that the judge had misdirected himself on the operation of the third limb of the Primor test.
The jurisdiction to strike out for delay, Ms Justice Whelan said, is clearly confined to exceptional cases, but the balance of justice favoured permitting the action to proceed.
The appeal was allowed, and the Order of the High Court was set aside.