High Court: Application for leave to renew summons in case alleging HSE negligence refused

About this case:

• Citation:
  [2025] IEHC 526
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nessa Cahill

Delivering judgment for the High Court, Ms Justice Nessa Cahill emphasised: “The legal position is unambiguous: it is only in rare cases that a solicitor’s mistake, misapprehension or inadvertence could possibly constitute ‘special circumstances’ for the purposes of Order 8. To reach that threshold, it seems likely that some unusual, unpredictable facts, outside the control of the legal advisor must be shown.”

Background

The plaintiff alleged that as a minor, he suffered physical and sexual abuse, neglect and deprivation whilst in the care of his uncle and his uncle’s spouse between 2001 and 2006. The plaintiff claimed that at that time, he was subject to care orders and under review of the relevant health boards (now the HSE) which failed in their duty to protect him, resulting in his sustaining severe harm.

The plaintiff made a complaint to gardaí in December 2018, with a criminal trial taking place in 2023. On 8 July 2020, the plaintiff issued proceedings seeking declaratory relief and damages against the HSE, but the proceedings were not served upon the HSE within the 12-month period required by the Rules of the Superior Courts (RSC).

Accordingly, the plaintiff brought a motion seeking leave to serve the summons under Order 8, rules 1(3) and (4) RSC. 

The High Court

The court firstly addressed an application for the matter to be heard in camera as the plaintiff had exhibited and proposed to rely upon material arising from childcare proceedings conducted in camera by the District Court.

The High Court acknowledged that it was “plainly important” that the protection against disclosure afforded to the material by the District Court should not be lessened or undermined by the proceedings before her, and that that protection subsisted regardless of the plaintiff’s age in line with HSE v. McAnaspie [2012] 1 IR 548.

The court further determined inter alia that the application concerned the “affairs of children”, a category expressly referenced by the Supreme Court in Gilchrist v. Sunday Newspapers [2017] 2 IR 284 as one warranting the exclusion of the press or the public pursuant to the European Convention on Human Rights, and had a close connection to the concluded criminal proceedings which were conducted subject to reporting restrictions.

Accordingly, the court found that the plaintiff’s was an exceptional case in which it was necessary to exercise the inherent jurisdiction of the court to direct that the matter be heard in camera.

As to the substantive application, Ms Justice Cahill noted that her decision would hinge on whether there were any special circumstances justifying an extension under Order 8, rule 1(4) RSC.

The judge considered the correspondence exhibited to the application, highlighting that by 28 April 2023, the plaintiff’s solicitor was aware that an application to renew the plenary summons was required. The court further expressed that there was no factual basis for that solicitor’s later assertion to the effect that the proceedings had been served on the HSE on 16 July 2020.

The court concluded inter alia that insofar as it was alleged that there was a mistaken belief that the proceedings had been served in July 2020, that explanation was not available beyond April 2023 as “it must be assumed that Mr Acton had reviewed the file and formed the — correct — view that it was necessary to renew the summons before he contacted the HSE in April 2023” and that his subsequent correspondence which included erroneous statements to the effect that the proceedings had been served did not alter that position.

The court also emphasised that despite recognising the need to apply for leave to serve the summons in April 2023, the ex parte application had not issued until October 2024, over three years since the expiry of the summons.

Having considered Order 8, rule 1 RSC and the relevant case law, the court was satisfied that the “overarching test” remains that there must be special circumstances before there is any scope for assessing the balance of justice, as there “is no balance to conduct if there are no ‘special circumstances’.”

Ms Justice Cahill explained that the special circumstances asserted on behalf of the plaintiff were that his solicitor was of the mistaken belief that the summons had been served and had held that belief until 2023. It was further contended that the proceedings were in abeyance because the plaintiff’s solicitor did not want to cause him additional stress whilst the criminal proceedings were ongoing and that there had been a delay in obtaining an expert medical report.

Noting that similar arguments as to mistake on part of a plaintiff’s solicitor have been “almost universally rejected”, Ms Justice Cahill was convinced that the legal position in this regard was unambiguous and that it is only “rare cases” with some “unusual, unpredictable facts, outside the control of the legal advisor” that might meet the threshold of “special circumstances”.

As to the contention that the plaintiff’s solicitor desired to protect his client from additional stress, the judge found that the facts presented to her were sparse and amounted to no more than the same bare assertion advanced in Nolan v. Board of Management of St Marys Diocesan School [2022] IECA 10.

Furthermore, the court considered that the service of the summons or pursuit of the HSE for failure to enter an appearance would have been steps not requiring engagement with the plaintiff, and that in line with Mr Acton’s stated belief that the proceedings had been served, he must have received instructions to serve the proceedings and thus it was not clear to the court what further engagement was required.

As to the reference by the plaintiff’s counsel to the sensitive nature of the proceedings and the fragility and vulnerability of the plaintiff, the court stated that it is “a sad fact” that legal proceedings involving traumatic events cannot be characterised as unusual and Order 8, Rule 1 RSC does not permit any category of cases to be treated differently owing to their sensitive and damaging facts.

The court continued: “It is of course possible that specific evidence could be adduced to demonstrate that a plaintiff’s medical condition rendered it unusually difficult to obtain instructions and that such specific instructions were required to serve proceedings, but clear and qualified evidence to that effect would be required.”

As to the alleged delays in obtaining a psychiatric report on behalf of the plaintiff, the court emphasised the need to show both expedition in attempting to procure the report and the necessity of the report itself, finding that neither requirement had been met in the application before her.

In particular, the court highlighted that “there is no necessity to obtain such a report for the issue or service of these proceedings (by contrast with professional negligence claims) and no report has been placed before me to demonstrate how it warranted the delay or justifies the order now sought”.

Finding that there were no special circumstances in the case, Ms Justice Cahill determined that there was no place for an assessment of the interests of justice, noting inter alia the delay in bringing the application for leave to serve the summons from the date of its issue and added: “Even if there was scope to consider the question of prejudice, the plaintiff has not shown that the claim would be rendered statute-barred, or that some other particular prejudice would be suffered, as a result of the non-renewal of the summons.”

In that regard, the court pointed out the HSE’s position that the proceedings were statute-barred by July 2012, a matter which had not been “convincingly answered” by the plaintiff.

Conclusion

Accordingly, the High Court refused the application.

SW v Health Service Executive [2025] IEHC 526