Barry v McCann & ors [2019] IEHC 690 (09 October 2019)

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CONOR MCCANN, MATER PRIVATE HOSPITAL, MATER PRIVATE HEALTHCARE AND

JUDGMENT of Mr. Justice Noonan delivered on the 9th day of October, 2019

1. In these medical negligence proceedings, the first and fourth named defendants have

separately brought applications, which were heard together, to set aside the renewal of

the personal injuries summons herein by order of this court (Meenan J.) on the 15th April,

2018. That order for renewal was made on the usual ex parte basis.

2. The plaintiff in these proceedings is a 44 year old medical practitioner who currently

practises as an obstetrician gynaecologist in Australia. Prior to the events giving rise to

these proceedings, she was also a keen athlete having participated in triathlon

3rd December, 2013 - The plaintiff attended the first defendant, who is a consultant

cardiologist, with a complaint of palpitations occurring at rest. Following assessment, the

first defendant advised the plaintiff to undergo an electrophysiology (EP) study of her

heart. The summons alleges that this procedure involved the insertion of a catheter

12th December, 2013 - The pre-arranged EP study of the plaintiff’s heart took place at

the second defendant hospital (“the Mater Private”). After the procedure, the plaintiff was

advised by the first defendant that it had revealed no problem. The plaintiff alleges that

following the procedure, she experienced a weak spell when she got out of bed and

returned to the Mater Private where she was assessed by a doctor and advised she was

fine. The plaintiff claims she began to develop symptoms after the procedure including a

4th January, 2014 - The plaintiff was walking in a street in Dublin when she experienced

very significant pain in her back passage which caused her to collapse and lose

consciousness. She woke up lying on the street with injuries including a broken tooth, a

split lip and skull fractures. The plaintiff was unable to stand and claims that nobody

would come to her aid. She eventually succeeded in calling an ambulance with her

mobile phone. The plaintiff was brought by ambulance to the fourth defendant hospital

(“the Mater Public”) where she was admitted. An MRI scan was carried out of her pelvis.

8th January, 2014 - She was discharged from the Mater Public and advised that the MRI

scan was normal. The plaintiff subsequently asked a consultant radiologist colleague to

review the scan and he advised that it showed a large mass in her pelvis.

10th January, 2014 - The plaintiff was readmitted to the Mater Public where she

underwent further scans which confirmed the presence of a pelvic mass and incidentally,

a DVT in the left iliac vein. In her summons, the plaintiff pleads that she was advised

that this mass was potentially a bleeding tumour. She underwent a CT guided biopsy of

the mass with the result described in the records as a “grossly haematoma”. The

histology report suggested that the mass was likely a benign tumour. The plaintiff alleges

that she was subsequently informed that there was a 10 to 15% chance that the tumour

would convert to a sarcoma which would require resection and there would be a 60%

chance of local recurrence. There is no evidence of this conversation in the hospital

16th January, 2014 - The plaintiff was discharged from the Mater Public.

19th February, 2014 - The plaintiff emigrated to Australia, an event planned prior to her

illness. Although prior to her departure, the plaintiff was advised that her DVT had

resolved, she continued to suffer significant pain and swelling in her left leg.

Subsequent to her arrival in Australia, the plaintiff was seen at the Royal Prince Albert

Hospital, Sydney. She pleads that she was diagnosed with a possible low grade sarcoma

requiring surgery which she might not survive. She was also advised that as a

consequence of the surgery, there would be damage to her bladder nerves, her rectum

and her sciatic nerves which would leave her with a significant disability and she would

require stomas for both urine and stools. A report obtained from a consultant

psychiatrist, Dr. Catherine Anne Llewellyn dated the 12th November, 2018 discloses that

the plaintiff was informed by Professor Michael Solomon at the hospital in Sydney that

she would be unlikely to survive the operation, but that in any event she had most likely

a terminal diagnosis. The plaintiff informed Dr. Llewellyn that she was shocked by this

July 2014 - It would appear that around this time, the plaintiff was advised that the mass

in her pelvis, which was then reducing, was not a tumour but rather a hematoma that

most likely was the result of a bleed caused during the EP procedure in December 2013

and which was also responsible for the DVT. The plaintiff suggests that this is her “date

of knowledge” for the purposes of the Statute of Limitations (Amendment) Act, 1991.

The plaintiff however continued to suffer with pain and swelling of her left leg.

22nd December, 2014 - The plaintiff had a stent placed in her leg. She underwent

February 2015 - Scans revealed that the stent was compressed and she commencedanti-

August 2015 - The plaintiff’s mother contacted B.V. Hoey & Co.mpany, solicitors in

Drogheda, County Louth with regard to a possible claim against the defendants herein.

September 2015 - The plaintiff gave formal instructions to the solicitors.

October 2015 - B.V. Hoey & Co. sought the plaintiff’s medical records from the first

defendant and the Mater Public and engaged in correspondence with the State Claims

November 2015 - B.V. Hoey & Co. received the hospital records and instructed counsel to

11th December, 2015 - The personal injuries summons was issued and it indicates that it

was issued for the purposes of the statutory limitation period in the absence of an expert

report. If the limitation period were to be regarded as commencing on the date of the EP

on the 12th December, 2013, the summons was issued on the final day of the limitation

April 2016 - The plaintiff saw a vascular surgeon, Dr. Andrew Cartmill following an

episode of severe leg pain. The plaintiff was concerned that she had a DVT and was

10th December, 2016 - The personal injuries summons expired without having been

30th November, 2017 - The plaintiff attended Dr. Llewellyn for the first time.

7th December, 2017 - The plaintiff first attended her present solicitors, Michael Boylan

12th December, 2017 - Mr. Boylan sought the plaintiff’s file from B.V. Hoey & Co.

21st February, 2018 - The plaintiff attended Dr. Christine Hyde, a clinical psychologist, for

8th March, 2018 - Dr. Cartmill provided a report to Mr. Boylan and separately to the

plaintiff noting that over the past twelve months (i.e. since March 2017) the plaintiff’s leg

symptoms had progressively worsened and were causing both lifestyle and work

limitations. It should be noted that it was the plaintiff’s ambition to practice as a surgeon

but it is felt that she is now no longer able to do so by virtue of her continuing symptoms.

5th April, 2018 - Mr. Boylan swore an affidavit grounding the ex parte application to

renew the summons. In this affidavit, Mr. Boylan avers (at para. 13):

“Unfortunately, the plaintiff has recently learned that the injuries she suffered are

far more debilitating than she first thought and in such circumstances she has

“I say and believe that the summons herein expired on the 10th December, 2016

and was not renewed. However, I believe that the recent revelation in respect of

the extent of the plaintiff’s injuries and of the physical, social and occupational

limitations to which she is now subject constitute ‘other good reason’, justifying the

renewal of the summons, within the meaning of O.8 r.1 of the Rules of the Superior

16th April, 2018 - The order renewing the summons was made.17th April, 2018 - The

2nd August, 2018 - The fourth defendant issued the motion to set aside the renewal of

15th October, 2018 - Mr. Boylan sought a medical report from Dr. Llewellyn.

15th November, 2018 - Mr. Boylan swore two separate replying affidavits in similar terms

in response to the defendants’ grounding affidavits. In these affidavits, Mr. Boylan

repeats the earlier averment that the fact that the plaintiff discovered in the past twelve

months that her injuries are more debilitating than previously thought is a prima facia

“good reason” meriting renewal. However, in addition, Mr. Boylan exhibits the medical

report of Dr. Llewellyn which was not available at the time he swore his first affidavit

3. Dr. Llewellyn’s report is lengthy and detailed and chronicles the history of events from the

4. The following sections of the report are of particular relevance to the issues that arise in

“Over the years between 2014 until the time of our consultation (November 2017),

Dr. Barry spoke about her experience of grief and shock associated with the initial

diagnosis of a life-threatening sarcoma, complicated by worsening anxious

ruminations that she subsequently developed regarding the possibility of dying of

her stenosed iliac vessel with the associated risks of thromboembolic phenomena.

Dr. Barry became increasingly preoccupied with the notion that in the event of a

medical complication she may be left with a permanent disability, and this caused a

major personal crisis for Dr. Barry privately regarding her ability to pursue to (sic)

career as a surgeon with its requirement that she be able to stand whilst operating.

Dr. Barry described how over the three to four years preceding her consultation

with me, she had developed the onset of what appeared to be a specific phobia

regarding fainting or losing consciousness, either during surgery or when she was

alone, whether in public or private places. Dr. Barry was able to psychologically

link these intrusive thoughts to her experience of lying on the street in Dublin in

2014 during which she felt helpless and during which she observed that members

Dr. Barry described how in the years prior to her consultation with me, she had

intrusive memories of the conversation held with Professor Michael Solomon, in

which she was informed that essentially she had a terminal prognosis (I refer to the

consultation of March 2014). Dr. Barry stated that whilst in a hospital environment

she felt safe, but outside of her working hospital environment she became

preoccupied with the notion that she may collapse and people would not help her,

I informed Dr. Barry at the initial consultation that I believed her diagnosis was

In the conclusion section of her report, Dr. Llewellyn expresses the following views:

“Based upon the history provided by Dr. Barry today, my medical opinion is that Dr.

Barry has been struggling with Post-Traumatic Stress Disorder. My opinion is that

her presentation to psychiatric and psychological services has been hampered by

her understandable anxiety that by receiving psychological support this would

somehow affect her medical registration. This is a common anxiety and

misconception that I see when treating medical professionals that often delays

My impression of Dr. Barry is that she is receiving a constellation of complex

medical care, here in Brisbane, for her unusual presentation, with which she is

It is my medical opinion that it is highly likely that she delayed and/or was unable

to follow through with legal avenues in the past in light of her disabling psychiatric

5. It would appear therefore that the psychiatric symptoms which in Dr. Llewellyn’s opinion

prevented the plaintiff from prosecuting her claim date back to early 2014.

“No original summons shall be in force for more than twelve months from the day

of the date thereof, including the day of such date; but if any defendant therein

named shall not have been served therewith, the plaintiff may apply before the

expiration of twelve months to the Master for leave to renew the summons. After

the expiration of twelve months, an application to extend time for leave to renew

the summons shall be made to the Court. The Court or the Master, as the case may

be, if satisfied that reasonable efforts have been made to serve such defendant, or

for other good reason, may order that the original or concurrent summons be

renewed for six months from the date of such renewal inclusive, and so from time

7. Rule 2 provides that where a summons has been renewed on an ex parte basis, the

defendant shall be at liberty to bring a motion to set aside the renewal. In the present

proceedings, it is common case that no attempt to serve the summons during its currency

was made and so to obtain a renewal, the plaintiff must satisfy the court that it should be

renewed “for other good reason”. What constitutes a good reason has been the subject

of many judgments but cannot be regarded as a closed category. It will of course depend

8. The proper approach to an application to set aside a renewal was considered in Chambers

v. Kenefick [2007] 3 IR 526. In her judgment, Finlay Geoghegan J., then a judge of the

“Firstly, the Court should consider is there a good reason to renew the summons.

That good reason need not be referable to the service of the summons. Secondly, if

the Court is satisfied that there are facts and circumstances which either do or

potentially constitute a good reason to renew the summons then the Court should

move to what is sometimes referred to as the second limb of considering whether,

because of the good reason, it is in the interests of justice between the parties to

make an order for the renewal of the summons. Thirdly, in considering the question

of whether it is in the interests of justice as between the parties to renew the

summons because of the identified good reason the Court will consider the balance

of hardship for each of the parties if the order for renewal is or is not made.”

9. The authorities show that the reason advanced as a good reason for renewal must explain

the failure to serve the summons during its currency. As noted by Peart J. in Moynahan

“The Court is required in my view to reach the conclusion not only as to what is the

true reason why the summons was not served within the proper time, but also to

conclude that that reason justifies the failure to serve. It is in that sense that the

See also the judgment of the Court of Appeal in Monahan v. Byrne [2016] IECA 10.

10. That the reason advanced must explain the failure to serve within the initial twelve

months is clear from other judgments including that of Laffoy J. in O’Reilly v. Northern

Telecom (Ireland) Ltd [1999] 1 IR 214 where she observed (at p. 218):

“The Plaintiff has not established any good reason for his failure to serve the

summons within the year prescribed in Order 8, Rule 1. His explanation that he

feared he would jeopardise his position with the Defendant if he instituted

proceedings rings hollow. In any event, if an excuse of that nature was

countenanced, the time restrictions imposed by the Statute of Limitations, 1957

In Lawless v. Beacon Hospital [2018] IEHC 736, another medical negligence action,

“…the plaintiff has not advanced any good reason as to why the personal injuries

11. Many of the recent authorities lay emphasis on the court’s reduced tolerance of delay,

having regard to the State’s obligations, not only under the Constitution but also the

European Convention on Human Rights, to ensure that parties to litigation obtain a fair

trial within a reasonable time. Several judgments have emphasised the fact that the

policy concerning renewal under O.8 r.1 is to an extent at odds with the Statute of

Limitations and the public interest in the finality of litigation – see for example Moloney v

Further, it is in general not permissible to issue a summons and not serve it while it

remains valid in the hope or expectation that some future event may occur to warrant the

pursuit of the proceedings – see Darjohn Developments v. IBRC [2016] IEHC 535.

12. As noted above, the reason advanced at the ex parte stage for renewal was that the

plaintiff had only become aware recently that her injuries were more debilitating than she

first thought. Mr. Boylan avers that the swelling and discomfort in the plaintiff’s left leg

had progressively worsened over the past twelve months, that is to say in the twelve

months prior to April 2018 when the affidavit was sworn. This would appear to suggest

that the earliest point in time at which the plaintiff considered that she might now pursue

her claim was in or about April of 2017 but of course the summons had already expired

13. It seems clear therefore that the reason advanced initially for seeking renewal of the

summons is entirely unrelated to the failure to serve the summons while it remained in

force. There is accordingly no explanation why the summons was not served during the

initial twelve months other than it might be inferred that during that period, the plaintiff

did not consider her injuries to be serious enough to warrant pursuing the claim. If that

were to be the true reason, it could not be a good one. As matters stood at the ex parte

stage, the plaintiff failed to explain why the summons was not served on or before the

10th of December, 2016 and if that were the only reason now advanced, the defendants’

14. However, the situation has changed significantly by the introduction of Dr. Llewellyn’s

report. That report was not available at the time of the original ex parte application and

the court must consider these applications now in the light of all the available evidence.

This is a de novo consideration of the issue and not a review of whether the ex parte

15. The defendants, with some justification, criticised the fact that the reason now advanced

in the light of this report is contradictory to the reason originally advanced, which is still

relied upon. Counsel for the defendants submitted that the court should be sceptical of

this new reason because it was not previously referred to and the suggestion that the

plaintiff was suffering from a psychiatric handicap which prevented her from pursuing the

claim is at odds with the suggestion that she decided to pursue it because her symptoms

16. However, on the other hand it seems to me that I cannot ignore the un-contradicted

expert opinion of Dr. Llewellyn. It is clearly not something which was created after the

event for the purposes of this application. The plaintiff had attended Dr. Llewellyn for the

first time one week before she instructed Mr. Boylan. Counsel for the plaintiff suggests

that these events are clearly connected and are consistent with the plaintiff’s inability to

17. Unlike the first reason proffered, Dr. Llewellyn’s opinion does in fact explain the failure to

serve the proceedings within the twelve months. The plaintiff’s psychiatric issues

commenced in early 2014 and she continued to be affected by them right throughout the

currency of the summons. Although she was able to instruct solicitors to issue the

proceedings, she was, as Dr. Llewellyn puts it, unable to “follow through” as a result of

her psychiatric symptoms. That in my view is a good reason which explains the failure to

18. That being so, I must now turn to considering the balance of hardship between the parties

if the summons is, or is not, renewed. First, from the plaintiff’s perspective, if the

renewal is set aside the plaintiff will lose the benefit of her cause of action as it is now

likely statute barred. Even assuming that the cause of action did not accrue in December

2013 but rather in July 2014, her alleged “date of knowledge”, the limitation period would

19. The plaintiff has suffered, on her case, what are serious injuries which may expose her to

a degree of life long pain and suffering, disruption of her life as it was before the events

complained of and the loss of her career as a surgeon. These are, on any view, very

serious matters. As against that, both defendants say that they are significantly

prejudiced by the passage of time and the long delay between the events in issue and the

service of the summons. That complaint is exacerbated by the fact that the defendants

say that they had no prior notice of the claim before the receipt of the summons in April

20. The plaintiff disputes this and points to the correspondence with the first defendant and

the email exchange between B.V. Hoey & Co. and the State Claims Agency in early

December 2015 when the plaintiff’s then solicitors were seeking confirmation of the

correct title of the hospital. The solicitors identified the plaintiff as the patient concerned

and the plaintiff therefore argues that the defendants ought to have anticipated a claim at

that stage and cannot complain that they were taken by surprise by the summons.

21. While it might be true to say that the correspondence could be taken as an indication that

some claim of an unspecified nature might be made against the defendants at some time

in the future, I cannot accept that in any realistic sense this put the defendants on notice

of the claim that ultimately transpired or could have justified the time and expense of

investigating an unspecified claim that might never arise. I think it is somewhat unreal to

suggest that the first defendant or the hospital, through the auspices of the State Claims

Agency, should at that point in time set about a full investigation of the matter and

interview every member of staff who may have, for any reason, had contact with the

plaintiff. I cannot see how a meaningful investigation could be conducted when the

22. I am therefore satisfied that the defendants have, to an extent, been prejudiced by the

delay that has occurred. However, I have to bear in mind that medical negligence cases

like this, more often than not, turn largely on the medical notes and the opinions of

medical experts based on those notes. It might thus be said that in the particular context

of this class of case, prejudicial delay may to a significant extent be ameliorated by the

23. The fourth defendant points to the fact that the plaintiff in her summons places specific

reliance on conversations had with the hospital’s medical staff, which are undocumented

in the notes. Insofar as reliance is placed on those conversations therefore, I accept that

the defendants will to a degree be handicapped. On the other hand, the plaintiff would

have been within her rights to serve the summons at any time up to the 10th of

December, 2016 when three years had already elapsed from the events complained of.

In the event, the summons was not actually served until sixteen months later.

24. While recollections will disimprove with the passage of time, it is not immediately clear to

what extent the defendants are worse off by having to investigate matters, including the

recollection of witnesses, four years and four months later as against three years later.

One suspects that most doctors being asked to recount interactions with a patient three

years earlier would be largely, if not entirely, reliant on their notes as they equally would

if asked the same question about events four years and four months earlier.

25. Whilst I accept therefore that there must be some element of prejudice arising by virtue

of the plaintiff’s delays in this case, I do not think I could conclude that this prejudice

outweighs the prejudice that would be suffered by the plaintiff if the renewal is set aside.

I am therefore of the view that the balance of hardship lies in favour of the plaintiff and

that the interests of justice accordingly require refusing these applications.

Result: The application was refused.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barry v McCann & ors [2019] IEHC 690 (09 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_690.html Cite as: [2019] IEHC 690

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