12
THE SUPREME
COURT
64/2004
Geoghegan J
McCracken J
Kearns J
Between:
Joan
Bernadette Keogh Plaintiff/ Respondent
AND
Wyeth
Laboratories Incorporated
and John Wyeth & Brother
Limited Defendants/ Appellants
Judgment of Mr Justice McCracken
delivered the 12th day of July 2005
___________________________________________________________
This is an appeal from the refusal of
the High Court (McKechnie J) to dismiss the Respondent’s claim for
want of prosecution or in the alternative to dismiss the
Respondent’s claim pursuant to the inherent jurisdiction of the
Court on the grounds of the Respondent’s delay in the prosecution of
her case.
The
Appellants are manufacturers of a drug called Ativan which is a drug
for treating anxiety conditions and is available only on
prescription. The drug was initially prescribed to the Plaintiff by
her general practitioner in 1979 for the purpose of reducing anxiety
and panic attacks. She continued to take Ativan on prescription
until 1984 when she became aware through a television programme that
there were allegations that some people had difficulties with the
drug. She tried to reduce her dosage and claims that she suffered
serious withdrawal symptoms including panic attacks, fear of leaving
the house on her own, depression, difficulty making decisions and
poor memory. In 1985 she was referred by her general practitioner to
her local health board psychiatric clinic.
In these proceedings the Respondent
claims damages for personal injuries, loss and damage sustained by
her by reason of the negligence and breach of duty of the
Appellants. Her basic claim is that the Appellants were negligent in
that they knew that Ativan could be addictive, but failed to give
adequate warnings to this effect either to patients who took the
drug or to the medical profession who prescribed it. These
proceedings were commenced by plenary summons dated 27th January
1989, and a statement of claim was delivered dated 3rd March 1989.
On 14th December 1990 the Appellants filed a defence pleading, inter
alia, that the claim was statute barred. However, that issue is not
relevant to this motion.
On the hearing of this motion in the High Court the
Appellants contended that the delay since the issue of the
proceedings was both inordinate and inexcusable. This was disputed
by the Respondent, but in his judgment the learned High Court Judge
found that the delay generally was inordinate and further found that
the delay from February 1996 until the issue of this motion on 4th
December 2001 was also inexcusable. However, he went on to find in
the exercise of his discretion and on the balance of justice that if
he were to strike out the action he would have a real sense of doing
an injustice to the Respondent, and accordingly he dismissed the
application.
On
the hearing of this appeal, the Respondent, very sensibly, accepted
the learned trial Judge’s findings in respect of inordinate and
inexcusable delay. The only issue before this Court, therefore, is
whether the learned trial Judge correctly exercised his discretion
in refusing to strike out the proceedings notwithstanding the
inexcusable and inordinate delay. In determining this point, it is
not necessary to analyse the steps taken by the parties over the
years in quite the same depth as was done by the learned High Court
Judge, although the history of the proceedings does have some
considerable relevance to the issue.
It is accepted by both parties that
the principles applicable to the consideration of the balance of
justice in these circumstances are clearly set out in the judgment
of Hamilton CJ in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 where he said at page
475:-
“……
(c) Even
where the delay has been both inordinate and inexcusable the
Court must exercise a judgment on whether, in its discretion, on
the facts the balance of justice is in favour of or against the
proceeding of the case;
(d) in considering this latter
obligation the Court is entitled to take into consideration and
have regard to:-
(i) The implied constitutional
principles of basic fairness of
procedure,
(ii) whether the delay and consequent prejudice in the
special facts of the case are such as to make it unfair to the
defendant to allow the action to proceed and to make it just to
strike out the plaintiff’s action,
(iii) any delay on the part of the
defendant – because litigation is a two party operation, the
conduct of both parties should be looked
at.
(iv)
whether any delay or conduct of the defendant amounts to
acquiescence on the part of the defendant in the plaintiff’s
delay,
(v)
the fact that conduct by the defendant which induces the
plaintiff to incur further expenses in pursuing the action does
not, in law, constitute an absolute bar preventing the defendant
from obtaining a striking out order but is a relevant factor to
be taken into account by the judge in exercising his discretion
whether or not to strike out the claim, the weight to be
attached to such conduct depending upon all the circumstances of
the particular case,
(vi) whether the delay gives rise
to a substantial risk that it is not possible to have a fair
trial or is likely to cause or have caused serious prejudice to
the defendant,
(vii) the fact that the prejudice to the defendant
referred to at (vi) above may arise in many ways and be other
than merely caused by delay, including damage to the defendant’s
reputation and business.”
It should be emphasised that the
consideration of the balance of justice is primarily a matter for
the discretion of the learned trial Judge, and therefore, as in all
considerations of the exercise of a discretion, it should not be
interfered with lightly. However, it is a discretion exercised in
the light of facts deposed to on affidavit, with no
cross-examination, and accordingly this Court has before it exactly
the same material as that upon which the learned High Court Judge
made his decision. In those circumstances, this Court may more
readily interfere with the discretion of the learned High Court
Judge.
The
position where the delay has been found to be inordinate and
inexcusable, and only the balance of justice is considered, has been
dealt with in several other cases. In O’Domhnaill v Merrick [1984] IR 151 Henchy J
said:-
“Whether delay should
be treated as barring the prosecution of a claim must inevitably
depend on the particular circumstances of a case. However, where
as in this case, the delay has been inordinate and inexcusable,
such delay is not likely to be overlooked unless there are
countervailing circumstances, such as conduct akin to
acquiescence on the part of the defendant, or the inability on
the part of an infant plaintiff to control or terminate the
delay of his or her agent.”
This passage was expressly approved by
Fennelly J in the Supreme Court in Anglo Irish Beef Processors Ltd &
Anor v Montgomery & Ors (unreported 31st July 2002). After quoting the passage he
said at page 5:-
“That statement of
the law indicates that the author of delay which is found to be
both inordinate and inexcusable will not be absolved of fault
unless he can point to countervailing circumstances. If he can,
the Court may be able to treat him more favourably when it comes
to assess the third consideration in the cited passage from the
judgment of Hamilton CJ, namely, whether “on the facts the
balance of justice is in favour or against the proceeding of the
case”. As I have already suggested, the Respondents were unable
to point to any disadvantage or disability affecting them. Nor
was there any delay or acquiescence of the Appellants, which
might redress the balance of fault.
In such circumstances, when the
Court comes to strike that “balance of justice” in application
of the comprehensive list of considerations set out in the
judgment of Hamilton CJ, it will need to find something weighty
to cancel out the effects of the Respondents’ behaviour. It will
attach weight to the character of the claim and to the character
of the Respondents. When considering any allegation of delay or
acquiescence by the Appellants, it will be careful to
distinguish between any culpable delay in taking any step in the
action and mere failure to apply to have the Respondents’ claim
dismissed.”
The tests laid down in the Primor case are of their nature
very general. In seeking to apply these tests the Court must look
closely at the particular facts of the case before it. However the
central thread running through these principles are the concepts of
fairness and prejudice, which should be at the forefront of the
Court’s consideration as to where the balance of justice
lies.
In the
present case, the learned trial Judge set out very clearly the
matters which he took into consideration at page 42 of his
judgment:-
“Under this “balance
of justice” consideration I must also take into account the fact
that in my opinion the defendants did not simply acquiesce in
the time period up to February 1996, but were indeed solely
responsible for it; secondly, in the five years which followed,
the defendants at least tolerated if not acquiesced in the pace
of activity or rather inactivity in this case; thirdly, this
action is likely to be tried essentially on documentation;
fourthly, there is at least an arguable case that the defendants
have still not complied with their obligations in respect of
discovery, in that they have not properly or adequately
identified the documents contained in the schedule to their
affidavit; fifthly, the existence of the other litigation
involving the defendants above mentioned, and sixthly, the
consequences of denying to the plaintiff her right to seek
compensation for events which she claims have had a profound and
devastating effect on her life over very many years.
Finally it
should be noted that prior to the issue of the motion dated 4th
December 2001, the defendants had not previously mentioned or
threatened the plaintiff with any motion and had not at any
stage warned of prejudice or potential prejudice. They could
have served notice of trial themselves, or applied to dismiss
the action for want of prosecution at any time since February
1991 – see O.36 R. 12(b) and O.122 R. 11 of the Rules of the
Superior Courts. They only sought to dismiss this claim some
thirteen years after the plenary summons
issued.”
Having had the same opportunity as the learned trial Judge
had to review the evidence, I would have to take issue with some of
the conclusions reached by him. It was certainly open to him to find
that the delay up to February 1996 was excusable, although it may be
a little unfair on the Appellants to categorise it as being their
sole responsibility. However, while certainly the Appellants took no
steps to bring matters to a head between February 1996 and December
2001, I do not think this could in any way be seen as acquiescence
on their part. It must be viewed in the light of the fact that
discovery was made by the Appellants in February 1996, and despite
some skirmishing prior to that time as to who might actually inspect
the documents, the fact remains that the documentation has been
available for inspection since that date and not one document has
ever been inspected on behalf of the Respondent. This is not only
inexcusable, it is inexplicable if the Respondent is serious about
pursuing her case.
Counsel for the Respondent has sought to support the argument
by quoting from a judgment of mine in Whearty v Agricultural Credit
Corporation Ltd
(unreported 1st October 1997) in which I said:-
“I think it quite
clear that the defendants hoped or assumed that the case had
gone away, and felt they might be better served by doing
nothing. While it is perfectly open for them to take this
attitude, if the case does not go away then they must suffer the
consequences.”
The background to that case differed materially from the
present case. That action had been listed before the President of
the High Court in a list of cases to explain the delay in bringing
the case to hearing. Nobody attended on behalf of any of the parties
and the action was struck out. What was before the Court was a
motion to re-enter or reinstate the proceedings. The paragraph from
which the passage quoted above was taken commences:-
“I now come to what I
consider to be the countervailing circumstances in this case.
This is not a case in which the defendants or any of them
initiated an application to the Court to strike out the
proceedings. These proceedings were struck out because nobody,
including the defendants, appeared when the case was listed.
Furthermore, while the delays are, in my view, inexcusable,
particularly in relation to the period from 1987 to 1992,
neither of the defendants took any step to strike out the
proceedings or indeed to obtain an order compelling the
plaintiffs to reply to the notice for
particulars.”
That, of course, is in complete contrast to the present case
in which the Appellants have in this motion applied to strike out
the proceedings.
The learned trial Judge also held that the action in the
present case is likely to be tried essentially on documents. The
Appellants hotly contest this finding, and argue that they will not
only suffer the general prejudice of having to give evidence of
matters which took place very many years ago, but that they will
suffer actual prejudice. They point to the fact that the
psychiatrist first consulted by the Respondent is not available, and
while they accept that she was seen by other psychiatrists
subsequently in the public health system, nevertheless the evidence
of the first psychiatrist would be particularly important. While
documentation may certainly go a long way towards showing the
origins of the drug, and the tests which it underwent, it must be
remembered that the negligence alleged against the Appellants
relates, not to the fact that they put a dangerous drug on the
market, but that they failed to warn either the medical profession
or the patients being treated with the drug as to the possibility of
addiction. To meet this, the Appellants will certainly have to try
to adduce evidence of the knowledge of members of their staff back
in 1979 when the Respondent was first prescribed the drug. In
addition, the Plaintiff’s own medical condition between 1979 and
1984 will be of vital importance and will require substantial oral
evidence. At page 41 of his judgment the learned trial Judge
acknowledged that it might not be possible for the Appellants to
rely on witnesses whom they might have wished to do so if the trial
had taken place earlier, but said that he could not accept that they
could not engage alternative experts who could just as ably assist
the Court. While this may well be true as to expert witnesses who
simply review the documents, the learned trial Judge went on to say
“equally so with
regard to employees of the defendants”. It seems to me that there must of
necessity be many former employees of the Appellants who will not
now be available to give evidence of events which occurred over
twenty years ago, and they could not be replaced by alternative
witnesses. In my view the Appellants would have serious difficulties
in relation to meeting the Respondent’s case by reason of the
unavailability of witnesses.
The learned trial Judge also found
that there was an arguable case that the Defendants had not complied
with their obligations in relation to discovery. This may or may not
be so, but the fact remains that discovery was made by the
Appellants in February 1996, and since that date the Respondent has
not inspected any documents nor made any complaint whatsoever until
a motion for discovery was served on 10th December 2001, some five
years and nine months after the affidavit of discovery was
served.
The learned
trial Judge was perfectly correct in identifying the fact that there
was considerable other litigation in place in relation to the drug
Ativan. However, it appears that such litigation as existed in this
jurisdiction has largely lain dormant in the same way as the
Respondent’s case, and the litigation in the United Kingdom had
almost entirely been disposed of as long ago as 1996. It can hardly
effect the delay which took place in the present case since that
date.
Finally, the
learned trial Judge commented that he must consider the consequences
of denying the Plaintiff her right to seek compensation for events
which she claims have had a profound and devastating effect on her
life over very many years. If these proceedings are struck out, then
the consequences undoubtedly are that the Plaintiff has lost her
right to seek compensation, but that is the consequence of every
order made under these circumstances. The Respondent has sought to
call in aid certain passages from the judgment of Finlay P(as he
then was) in Rainsford
v Limerick Corporation [1995] 2 ILRM 561, and in particular a passage at page 567
where he said:-
“Whilst a party
acting through a solicitor must to an extent be vicariously
liable for the activity or inactivity of his solicitor,
consideration of the extent of the litigant’s personal
blameworthiness for delay is material to the exercise of the
Court’s discretion.”
At page 569 he said:-
“I am not, however,
satisfied on the evidence before me that the plaintiff himself
can fairly be blamed for an inordinate and inexcusable delay. It
is clear from the summary of the injuries in the evidence before
me and from the agreed statement of Counsel as to the general
nature that the plaintiff has, since the happening of this
event, been severely handicapped and has been involved in long
and protracted medical treatment involving considerable
difficulties for him in the carrying on of his ordinary life and
a considerable degree of immobility. That of itself would be to
some extent an excusing circumstance for a failure on his part
expeditiously and strenuously to press on his
litigation.”
These remarks were made in the context of a case in which the
Court expressly held that the delay on the part of the plaintiff’s
solicitors was both inordinate and inexcusable. This arose from
changes of personnel in the solicitors’ office and from the serious
illness of the partner dealing with the plaintiff’s case. Finlay P
made the distinction that the delay on the part of the solicitors
was inordinate and inexcusable, but that the plaintiff himself could
not fairly be blamed for that delay.
It is urged in the present case that
the Respondent is a person of very limited means and that the
solicitor for the Respondent is a sole practitioner. This is of
course true, but it is also a situation which arises in a large
number of claims for personal injuries. This is not a case where
specific blame can be laid at the door of the solicitor, as was so
in the Rainsford case, and the Court has no evidence of what, if
any, attempts were made by the Respondent personally to progress her
case.
The fact
that the Appellants may be large multi-national pharmaceutical
companies does not mean that they are not entitled to a
consideration of fairness by the Court, nor that any prejudice
suffered by them should be ignored. Having considered the same
evidence as the learned trial Judge, I am of the view that he erred
in the exercise of his discretion and in some of the conclusions
which he drew from the evidence. In the light of the enormous delay
in this case, I believe that justice would be served by allowing
this appeal and striking out the Respondent’s claim and I would
order accordingly.
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