The Supreme Court of Ireland handed down judgment in the case of Hiney v Flanagan and Others [2010] IESC 49 on 27th October 2010. The case concerned a suit against trustees of a superannuation fund, specifically whether delay was inordinate and inexcusable so as to warrant an order dismissing the claim.

The respondent had been excluded from the superannuation fund; paragraph 9.2 of the rules of the scheme state that where a person is certified by a medical practitioner instructed by the company to be incapable of performing duties they will be entitled to a pension as though they had continued in service. In the event of a dispute, provision was made for reference to a second practitioner. The appellants submitted that no reference application had been made by the respondent. The respondent referred to two letters not placed before the court in which it was submitted he had invoked a right of appeal to a second medical practitioner. No second practitioner was consulted.

The appellants highlighted five periods of delay which it was argued were inordinate and inexcusable and which caused the appellants such prejudice that the balance of justice required that the claim be dismissed.

Before the High Court the motion was refused; though he was not prepared to dismiss proceedings, the judge directed an earlier trial.

The Supreme Court in determining the issue highlighted that no submissions being made relating to the European Convention on Human Rights, the case would be decided by reference to common law. Listing the cases in which the principles were set out, including in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and most recently in McBrearty (a.p.u.m. not so found) v North Western Health Board and Others [2010] IESC 27, the court found the principle to be applied was the question of whether there was inordinate and inexcusable delay. The onus of proof was borne by the appellants.

Finding that the delay between the event which gave rise to the proceedings, and the date of the present appeal was one of fourteen years, the court determined that this was to be considered an inordinate delay.

Assessing the individual periods to determine whether the delay was also inexcusable, the court focused on the final period of delay – that of two years and six months between the last step in proceedings and the notice of trial. Considering this delay to be both inordinate and inexcusable the court determined it necessary to consider whether the balance of justice required that the claim be dismissed.

The court examined the plea that specific prejudice had been caused to the appellants by a failure to bring proceedings within a reasonable time. Holding that significant prejudice had not been made out, the court highlighted the key issue as the alleged failure to receive a review of the medical evidence by a second medical practitioner. The court determined that the right to have a case heard was not outweighed by any prejudice.

Dismissing the appeal, the court agreed with the view of the High Court that the proceedings be given an early trial.