AB and Universitair Ziekenhuis Gent and Belfast Health & Social Care Trust
| Jurisdiction | Northern Ireland |
| Judge | McFarland J |
| Judgment Date | 06 May 2021 |
| Neutral Citation | [2021] NIQB 47 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 06 May 2021 |
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Neutral Citation No: [2021] NIQB 47
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McF11505
ICOS No: 11/105424
Delivered: 06/05/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
___________
BETWEEN:
AB
Plaintiff
v
UNIVERSITAIR ZIEKENHUIS GENT
-and-
BELFAST HEALTH & SOCIAL CARE TRUST
Defendants
___________
Ms M Anyadike-Danes QC with Mr D Hamill BL (instructed by Phoenix Law Solicitors)
for the plaintiff
Mr P Lyttle QC with Mr J Park BL (instructed by Carson & McDowell Solicitors) for the
first defendant and
Ms J Simpson QC with Mr M Lavery BL (instructed by the Directorate of Legal Services)
for the second defendant
___________
McFARLAND J
Introduction
[1] This case has had a protracted history. The plaintiff, who was born in 1982,
was diagnosed with gender dysphoria and in 2003 underwent surgery involving a
laparoscopic hysterectomy and bilateral ovary removal, and then a mastectomy in
2005. The plaintiff was unable to access further surgical intervention in
Northern Ireland, and he was referred by the second defendant to the first
defendant, a hospital in Belgium. He underwent surgery for a gender transitioning
vaginectomy and phalloplasty in the autumn of 2009. He issued a Writ on
7th September 2011 claiming damages arising out of the medical advice, care and
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treatment in relation to the 2009 surgery. A claim against the Southern Health and
Social Care Trust has already been dismissed by the court. Given the intimate nature
of the surgery, the court made an order in 2016 permitting him to use the cypher
‘AB’ to protect his privacy. In this judgment I will refer to him as ‘AB’ or the
plaintiff, I will refer to the first defendant as ‘UZG’ and the second defendant as
‘BHSCT.’
[2] Two applications are before the court. They have common themes and have
been dealt with together. Both seek an order from the court to strike out the
plaintiff’s action.
[3] BHSCT issued a summons on the 23rd October 2020 to strike out the
proceedings by reason of the plaintiff’s persistent delay in prosecuting his action and
disregard for the directions and orders of the court.
[4] UZG issued a summons on the 12th November 2020 to strike out the action by
reason of repeated failures on the part of the plaintiff in complying with the court’s
directions and failure to produce specific documents as directed by the court. It
further sought an order to strike out pleadings that had not been amended as
directed by the court.
[5] In the course of management of the proceedings, the plaintiff made disclosure
of correspondence passing between the plaintiff and a doctor retained by the
plaintiff to provide an expert report.
[6] As a result, BHSCT on 4th January 2021 issued an amended summons which
still sought the same relief but included further grounds. UZG has supported the
additional grounds and it came before the court, to all intents and purposes, as a
joint application to strike out the proceedings on the grounds that it is an abuse of
the court’s process by virtue of the plaintiff’s delay and failure to comply with the
orders of the court and further, his conduct in relation to his engagement with an
expert medical witness. Both defendants rely on Order 1A Rule 1, Order 18 Rule
19(1)(c) and (d) of the Rules of the Court of Judicature and the inherent jurisdiction
of the court.
[7] The court benefited from extensive written and oral submissions of counsel
and the industry of their instructing solicitors. I would also acknowledge the
amount of work that has been carried out by Phoenix Law, solicitors for the plaintiff,
since they came on record in August 2020.
Alleged Delay
[8] A chronology of events (“the Chronology”) in relation to the conduct of the
litigation was prepared by the solicitors for the first defendant. The plaintiff and the
second defendant have not challenged the accuracy of the Chronology. It is set out
in full in the annex to this judgment.
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[9] There has been significant case management by the judiciary with a view to
progressing the matter. On numerous occasions the plaintiff failed to comply with
the directions. An ‘unless order’ was made on 25th September 2014 and judgment
entered against the plaintiff as he was in default. The master reinstated the
proceedings on 17th June 2015. On the 16th March 2016, the matter was transferred to
a high court judge for future management due to the plaintiff’s persistent failure to
comply with orders. Stephens J issued an ‘unless order’ on 4th April 2017 which was
complied with. On the 24th April 2017 the case was timetabled towards a final
hearing scheduled for 4th June 2018 (which was later vacated). In September 2017
the plaintiff changed his solicitor. In February 2018 the plaintiff changed his
solicitor. In October 2018 the plaintiff changed his solicitor. On 10th December 2018
it was directed that a hearing to determine liability be fixed and the case timetabled
for that hearing. Due to a failure on the part of the plaintiff to comply with the
timetable the matter was brought back before the judge on 22nd March 2019 when a
revised timetable was ordered and the trial fixed for 27th January 2020. On 31st May
2019 the plaintiff served what was his fourth statement of claim, the amended, re-
amended statement of claim.
[10] On the 21st January 2020, the plaintiff applied to vacate the hearing date for
the liability only trial. Maguire J vacated the trial date on strict conditions with
regard to compliance with further directions which were then issued. Those
directions included a requirement concerning the expert witness, Professor Robert
(“Robert”) who was based in France. The plaintiff was stating that Robert was
unable to attend the hearing, or be made available for cross-examination, and was
seeking to have his evidence admitted in written form under the Civil Evidence (NI)
Order 1997. This is relevant to the other limb of the application before me, as the
application before Maguire J was not to permit Robert’s evidence to be given by live-
link, but rather that only his written report should be admitted, thus denying the
defendants the opportunity to cross-examine him. The court ordered the defendant
to provide all correspondence to and from Robert concerning his inability to attend
at the hearing. The correspondence was to be produced by 23rd January 2020. Sir
Richard McLaughlin on 4th March 2020 directed that the plaintiff provide the
correspondence (and comply with other directions) within 7 days, and re-listed the
matter for review on 1st April 2020.
[11] The public health restrictions relating to COVID-19 came into operation in
mid-March 2020, which curtailed active case management of the case. On 5th June
2020 directions were made administratively requiring the plaintiff to serve the
Robert correspondence by 12th June 2020. None of the Robert correspondence
relating to the January 2020 hearing and his intended non-appearance has ever been
served, and it still remains outstanding, as does any explanation as to why it is
outstanding.
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2 cases
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Gerard Kelly and Malachi O’Doherty
...defamation proceedings an abuse of the process of the court? In AB v Universitair Ziekenhuis Gent and Belfast Health & Social Care Trust [2021] NIQB 47 McFarland J comprehensively summarised the position in this jurisdiction regarding applications for the striking out of pleadings on the gr......
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Aaron Sterritt and Telegraph Media Group Limited and Associated Newspapers Limited and News Group Newspapers Limited
...been cited in argument on many occasions in this jurisdiction without demur. Recently, for instance, in AB v Universitair Ziekenhuis Gent [2021] NIQB 47, McFarland J expressly held that the test for abuse of process was as laid down in Asturion. [28] The question is whether, on the evidence......