McEvoy v. McCusker & Ors

No cause of action: ‘I have found it difficult to decipher what the plaintiff’s cause of action is.’ [18] ‘These proceedings, whether as currently constituted or pursuant to the amended plenary summons have no prospect of succeeding. The plaintiff has not satisfied me that she has identified a cause of action or that any action she seeks to assert has any prospect of succeeding.’ [33]

1. 1.1

   Case taken at its highest: ‘For the purpose of this application to dismiss the plaintiff’s proceedings, I take the plaintiff’s case at its highest including by reference to her amended plenary summons. I also take the plaintiff to be the person entitled to extract a Grant of Administration in Mrs McEvoy’s estate.’ [8]

2. 1.2

   Next-of-kin status curable: ‘In taking her case at its highest, I am satisfied that any frailties in her case by virtue of her currently pleaded status as Ms McEvoy’s next of kin, can be rectified by her being appointed as Mrs McEvoy’s Personal Representative.’ [8]

Action for discovery: ‘current plenary summons seeks, almost exclusively, discovery/disclosure/release of data in relation to Mrs McEvoy.’ [18]

1. 2.1

   Norwich Pharmacal Co v. Customs and Excise Commissioners [1974] AC 133 (UKHL) and Megaleasing UK Ltd v. Barrett [1993] ILRM 497 (SC) applied: Confined ‘to cases where a very clear proof of a wrongdoing exists, and possibly, so far as applies to an action for discovery alone prior to the institution of any other proceedings, to cases where what is really sought is the names and identity of the wrongdoers, rather than factual information concerning the commission of wrong’ [19].

2. 2.2

   Doherty & Anor v. South Dublin County Council & Ors [2007] IEHC 4 on statutory procedures applied: ‘plaintiff does not plead the Freedom of Information Act, and it is difficult to see how she could have any cause of action thereunder given the stand-alone enforcement mechanism contained therein. … where the Oireachtas has established a specific statutory procedure for the investigation and determination of complaints, a litigant cannot circumvent that procedure by seeking to pursue the complaint through ordinary plenary proceedings.’ [18]

3. 2.3

   No claim by estate: ‘At para. 5.11 of her affidavit, the plaintiff refers to the right of Mrs McEvoy’s estate to Mrs McEvoy’s personal medical data. However, there is no claim in the within proceedings on behalf of Mrs McEvoy’s estate nor has any such claim ever been made in any other proceedings.’ [11]

4. 2.4

   Article not source of records: ‘plaintiff seems to believe that records must exist arising from the study that is discussed in the article. This is to misunderstand that the article was an analysis of records rather than a creation of records.’ [17]

5. 2.5

   Belief not evidence: ‘Much of what she avers to speculates that because one thing happened, then a certain conclusion must follow. … Beliefs and suspicions, no matter how subjectively genuinely held they might be, are not evidence and cannot form the basis of a viable cause of action.’ [20]

Medical negligence bound to fail: ‘Any claim for medical negligence is bound to fail because’:

1. ‘any such claim would belong to Mrs McEvoy or, following her death, her estate’;
2. ‘Mrs McEvoy did bring medical negligence proceedings in 2014 during her lifetime and they fell away, never having been served’;
3. ‘there is no supportive expert report.’ [22]

1. 3.1

   Liability for Defective Products Act 1991 applied: ‘clinical complaint against [the seventeenth and eighteenth named defendants] as manufacturers would have to have been made by Mrs McEvoy’s estate pursuant to the Liability For Defective Products Act 1991 or the relevant European Directives. No such claim is made here, and, even if it was, it would be statute barred.’ [26]

Allegation of fraud speculative: ‘plaintiff has not satisfied me that she has established any evidence of fraud. To the extent that she anticipates such evidence “unfolding”, that is entirely speculative and insufficient to ground her assertion that she has a cause of action in which she may succeed in establishing liability.’ [27]

1. 4.1

   Keohane v. Hynes [2014] IESC 66 on abuse of process applied:

   ‘[I]t is an abuse of process to bring a claim based on a breach of rights or failure to observe obligations where those rights and obligations are defined by documents and where there is no reasonable basis for suggesting that the relevant documents could establish the rights and obligations asserted. Likewise, it is an abuse of process to maintain a claim based on facts which can only be established by a documentary record and where that record could not sustain any necessary part of the factual assertions which underlie the case. Finally, it is an abuse of process to maintain a claim based on a factual assertion in circumstances where there is no evidence available for that assertion and, importantly, where there is no reasonable basis for believing that evidence could become available at the trial to substantiate the relevant assertion’ [28] As also applied in Meehan v. Ireland [2025] IECA 59 [28].

Abuse of process held: ‘To bring proceedings that have no prospect of success is an abuse of process.’ [29]

Statute barred: ‘any claim she does have is hopelessly statute barred.’ [30]

1. 6.1

   No extension for fraud: ‘I have already found that she has not established any evidence of fraud. She is, therefore, subject to the normal time limits for the institution of proceedings.’ [31]

2. 6.2

   Injunction defeated by delay: ‘Neither the plenary summons nor the amended plenary summons expressly seeks injunctive relief. Even if it did, it is trite law to say that delay defeats such an equitable relief.’ [32]

Strike-out no bar: ‘I do not accept that leave being given to apply for substituted service against four of the other defendants who have not yet been served, precludes the other defendants who have been served from seeking to have the proceedings struck out. The defendants are entitled to a consideration of their application to strike out regardless of the other procedural steps the plaintiff has sought to take in relation to other defendants.’ [13]

Proceedings struck out: ‘strike out the proceedings in their entirety.’ [39]

Plaintiff’s applications refused: Amendment, joinder, State notice parties and substituted service refused [34]–[38].

Section 169 of the Legal Services Regulation Act 2015 on costs applied indicatively: ‘As the defendants have succeeded in their application to strike out the plaintiff’s proceedings, my indicative view on costs … is that the defendants are entitled to their costs, to include all costs incurred by them in the within proceedings, to be adjudicated upon in default of agreement. If the plaintiff wishes to appeal this decision my indicative view is that a stay should be put on the execution of the costs pending the first directions hearing before the Court of Appeal.’ [40]