The Primor Principles and Clinical Negligence

Kirwan -v- Connors & Ors S:AP:IE:2023:000001

In Kirwan, the Supreme Court is considering a decision of the Court of Appeal to strike out the claim for inordinate and inexcusable delay. In so doing, the Supreme Court will examine the long established, Primor Principles, how they ought to be applied and whether they should, in any respect be revised or reconsidered.

In anticipation of this Judgment, we consider the issue of delay in clinical negligence claims with a focus on:

• The difficulties faced by clinician defendants in such applications; and

• Recent decisions of the Court in cases where there was a prejudicial impact on the memory of the treating clinician, caused by delay, and where medical records were not adequately detailed.

The Primor Principles

In the seminal case of Primor Plc -v- Stokes Kennedy Crowley [1996] 2 IR 459 it was decided that the following three limbs must be taken into consideration in the context of delay: -

• Is the delay inordinate?

• Is the delay inexcusable?

• Does the balance of justice favour dismissal?

A balance must be struck by the Courts in ensuring the Constitutional requirement that justice is administered effectively and expeditiously, and that procedural fairness is adhered to.

Defending Clinical Negligence Claims - Delay

In applying for a strike out of a clinical negligence claim due to delay, defendants may satisfy the Court of the first two limbs of the Primor test. However, looking to the third limb, concerning the balance of justice, the Courts must consider whether the delay gives rise to 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.

A doctor’s contemporaneous notes will play a significant factor in the Court’s considerations regarding the third limb of the Primor test. Even if the treating clinician’s recollection of the events of the claim is poor, the Courts will be reluctant to find that the third limb of the test is satisfied where a contemporaneous note records the events such that prejudice is more difficult to argue.

In Walsh -v- Mater Misericordiae University Hospital & Ashley Poynton [2023] IECA 276, in an application to strike out, the Court of Appeal upheld the High Court’s decision that the defendant was not prejudiced as “liability in the case will, to a very large extent, turn on the medical notes made by the doctors and on the actions taken by the doctors thereon” and that “oral evidence will have a very minor role to play”.

In addition, it was argued that prejudice arose from reputational damage suffered. Along with the absence of any evidence to support the claim of reputational damage, it was held by Mr Justice Binchy in the Court of Appeal that “there is no presumption that a person’s reputation is damaged by the mere issue of proceedings… some evidence of damage to reputation must be provided for consideration by the Court”.

In Beggan & Ors -v- Deegan & Ors [2024] IECA 4, Mr Justice Noonan, in the Court of Appeal dealt with the claim of “generalised prejudice” which is often made by defendants in relation to the impact on memory from the passage of time. He stated that in what are commonly referred to as “documents” cases, this factor is of considerably less importance. Mr Justice Binchy noted that medical negligence cases are determined on the basis of experts assessing the medical notes and the doctor’s recollection of events will normally play little or no role.

However, in Rooney -v- Health Service Executive [2022] IEHC 132, Mr Justice Simons found that while contemporaneous medical records will have an important role to play in medical negligence actions, not everything will have been recorded in the medical notes. In this case, involving the performance of a surgical procedure, the Court concluded that “events may unfold faster than any contemporaneous note taking”.

In Abrams -v- South Tipperary General Hospital [2023] IEHC 524 Ms Justice Bolger accepted that some oral evidence would be necessary, and the passage of time rendered that evidence “more fragile and unreliable than had the case been heard within a reasonable period from when the proceedings were issued”.

In O’Neill -v- Birthisle [2024] IECA 17, Mr Justice Noonan did acknowledge that medical negligence cases are “quasi-documents cases” as the impact of the passage of time is of lesser importance when the contemporaneous records are available. He went on to say, “that is not, however, to minimise in any way, the role of the viva voce evidence of treating clinicians which is often significant and sometimes divisive”.

In O’Neill, the Court of Appeal upheld the decision of the High Court to dismiss the proceedings on the grounds of delay and dismissed the appeal by the Plaintiff. The Court of Appeal placed emphasis on the perpetuation of these proceedings for some eight years without any evidential basis, that the defendant did not know the case being made against him and that the delay had seriously hampered the defendant’s ability to investigate the claim which was a clear and additional source of prejudice.

Conclusion

We wait in anticipation for the Supreme Court’s decision in Kirwan, after which we will consider what, if any, impact this will have on the Primor Principles and, in turn, the impact on the defence of clinical negligence claims.

If you would like any further information or advice, please contact Eoghain McNicholas 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