Litigation Restriction Order Granted in Clinical Negligence Claim

A (a person with disabilities) suing by his Mother and Next Friend AA -v- HSE and Cork University Hospital

In a recent High Court decision, a litigation restriction order was made against the plaintiff (“A”) and his mother in a clinical negligence claim following multiple sets of proceedings relating to the circumstances of A’s birth.

Fact Summary

Having been born extremely premature in January 2003, complications arose for A eight days after his birth when he developed sepsis and MRSA and, ultimately, lost part of his left heel, foot and toes. It is alleged that there was negligence in the contracting of, diagnosis and treatment of A’s MRSA and sepsis. It is also alleged that A incurred other injuries, which resulted in him being diagnosed with autism after he reached 18 and were causative of his current depressive disorder.

There was a long history of litigation in relation to the circumstances of A’s birth and a total of 7 sets of proceedings had already been issued by A and/or his mother (one of which settled and the others were dismissed or discontinued). In these proceedings, A (now aged 21) was not a ward of court or the subject of an order under the Assisted Decision Making (Capacity) Act 2015 (“2015 Act”) and his mother, sought to represent him personally, without the benefit of legal advice.

Application of the Defendants

In July 2024, an application was brought by the defendants to: -

• Dismiss the claim on the basis that the plaintiff’s expert evidence was insufficient and therefore, the proceedings disclosed no cause of action and/or was bound to fail or constituted an abuse of process;
• To stay or dismiss the plaintiff’s claim on the basis of a failure to comply with the pleading requirements of section 10(3) Civil Liability and Courts Act 2004 (the “2004 Act”), namely, to fully particularise the claim; and
• An “Isaac Wunder” order or a litigation restriction order (LRO).

Requirement for Expert Evidence

The defendants submitted that there was insufficient medical evidence to support the proceedings on the basis that the three plaintiff medical reports did not identify liability. In her reply, A’s mother indicated that she would be exclusively relying on the evidence of one of their experts, a Dr Fogarasi. In this regard, Ms Justice Hyland restated the very strict rules in relation to the identification of appropriate expert evidence in medical negligence cases and the importance of having this in advance of commencing such proceedings, as identified in Green v Triangle Development Ltd [2008] IEHC 52. Where Hyland J was of the view that Dr Fogarasi’s evidence did not reach this threshold, she adjourned the matter to permit the plaintiff to obtain additional evidence, if possible. At the hearing in October 2024, Hyland J considered an additional medical report obtained from Dr Fogarasi and whether, or not, this report met the criteria identified in Green.

High Court Judgment of Ms Justice Hyland

In relation to the defendants’ application, Hyland J found the following:-

• While expressing that the additional expert report of Dr Fogarasi “suffers from a distinct lack of clarity” and describing the position as “extremely borderline”, Hyland J found that the report “just about” met the threshold required. Accordingly, Hyland J refused the defendant’s application to dismiss the claim;
• Hyland J did, however, make an Order staying the proceedings under Section 10(3) of the 2004 Act pending the delivery of an amended Summons, which complied with this section, based upon Dr Fogarasi’s most recent report; and
• Though A’s mother advised that an LRO was not necessary as A did not intend to take any further proceedings, Hyland J found that A’s mother could not bind A as to what proceedings he will take in the future. This was in circumstances where she was neither A’s committee in wardship, co-decision maker, nor decision maker under the 2015 Act. Given the history of this litigation, Hyland J opined that it is not possible to exclude the bringing of further proceedings relating to the circumstances of A’s birth. She stated that while a private person may have a right of access to the courts, regard must be given to “the private rights of persons to be protected from vexatious claims” and “the obligation of the courts to use resources prudently as there is public interest in avoiding limited court resources being taken up in dealing with such claims”. While acknowledging the unfortunate circumstances of A’s birth and his mother’s belief that she was acting in the his best interests, Hyland J made the following LRO:-

“An Order pursuant to the inherent jurisdiction of this Honourable Court restraining the plaintiff and the plaintiff’s mother and any person purporting to act on behalf of the plaintiff from instituting further proceedings against the defendants arising from the medical treatment of the plaintiff on any date subsequent to the date of his birth without the prior permission of the President of the High Court or such judge as may be delegated by him”

Where the defendants were unsuccessful in one of the reliefs sought (but only where the plaintiff provided additional medical evidence after an adjournment provided for that purpose) and were wholly successful in two of the reliefs sought, 75% of the defendants’ costs were awarded.

Hyland J’s judgment reminds us of the strict rules in place which require plaintiffs to obtain appropriate expert evidence supportive of a claim in clinical negligence prior to proceedings. Further, her judgment serves as a warning against litigating the same events in different sets of proceedings, where, to do so, would impose a significant cost and time burden on the parties and the courts.

If you would like any further information or advice, please contact Genevieve Brindley or another member of the Healthcare team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice