High Court: Plaintiff entitled to renew personal injuries summons despite inadvertent failure to serve by solicitor
The High Court has refused to set aside the renewal of a personal injuries summons despite arguments that the plaintiff’s solicitor failed to serve the summons due to inadvertence. The summons had been renewed 10 days after the 12-month time limit following an ex parte application.
About this case:
- Citation: IEHC 220
- Court:High Court
- Judge:Mr Justice Anthony Barr
Delivering judgment in the case, Mr Justice Anthony Barr held that the overall circumstances of the case justified the renewal. The plaintiff’s firm had suffered extensive staff absences due to retirement, maternity leave and Covid-19. Further, the speedy ex parte application and the early notification of the action meant that there was little prejudice to the defendant.
The plaintiff was employed by the defendant, Depuy Ireland Unlimited Company. She worked in a factory and performed manual labour. She issued a personal injuries summons on 7 May 2021 seeking damages for a repetitive strain injury allegedly caused by her working conditions.
The summons was not served within the 12-month period and duly expired on 7 May 2022. Subsequently, on 17 May 2022, the plaintiff brought an application to renew the summons pursuant to Order 8 of the Rules of the Superior Courts.
The failure to serve the summons within time was explained in the following way: the solicitor originally in charge of the file retired in January 2021 and this caused significant logistical difficulties in the office, which was a small firm. The file was only attended to by the new solicitor in November 2021.
It was also said that the plaintiff required expert reports which were not in hand at the time that the summons issued and that the defendant had already been sued in 37 similar claims to the plaintiff’s action.
Additionally, the solicitor explained that the Covid-19 pandemic, lengthy sick leave for a secretary and maternity leave for an associate caused major issues within the firm. As such, it was explained that the summons was inadvertently not served within time due to these circumstances.
The application for the renewal was granted and the defendant subsequently issued a motion seeking to set aside the renewal. It was submitted that the lack of an expert report was not relevant. It was further said that there was still six months on the clock when the matter was transferred to the solicitor in November 2021.
There was also an email sent by the defendant’s solicitor to the plaintiff’s solicitor in November 2021 confirming that they had authority to accept service, but this email appeared to be misdirected within the plaintiff’s firm and no response was received. It was said this was within the control of the plaintiff’s solicitors.
Finally, the defendant outlined that it was entirely possible to serve the proceedings during the pandemic and that prejudice accrued to the defendant as they would not be entitled to plead the Statute of Limitations.
In opposing the motion, the plaintiff relied heavily on the 10-day period between expiry and bringing the renewal application. It was said that this was a de minimis delay and, coupled with the “perfect storm” of factors affecting the solicitor’s office, amounted to “special circumstances” to justify the renewal.
Further, the plaintiff raised a procedural point. It was said that the defendant had entered an unconditional appearance to the proceedings, which cured any defect as to service.
Mr Justice Barr began by outlining the relevant law. Order 8 RSC provided that a summons may be renewed if a court was satisfied that “special circumstances” existed to justify the extension of time. It was agreed that the test for special circumstances was comprehensively set out in Murphy v. HSE  IECA 3.
It was held in Murphy that a special circumstance was a higher bar than the “good reason” test but did not amount to “extraordinary” reasons. Subject to a court being satisfied that special circumstances existed, the jurisdiction to grant leave to renew was discretionary. A judge is afforded a margin of appreciation in this regard.
Further, it was held that the special circumstances and justification for a renewal formed part of the analysis for determining whether it was in the interests of justice to order a renewal. Prejudice was a component of the analysis (see Nolan v. Board of Management of St. Mary’s Diocesan School  IECA 10).
In determining the preliminary issue, the court held that while certain authorities appeared to be a clear statement that it was not possible to enter a conditional appearance, in fact the conclusion was “far from clear” (see Lawless v. Beacon Hospital & Ors  IECA 256; Kearns v. Evenson  IEHC 257).
As such, it could not be said that there was a “hard and fast rule” regarding the lack of a provision for the entry of a conditional appearance. It appeared that the Lawless decision, relied on by the plaintiff, did not rule out the possibility of a conditional appearance to contest the service of a summons.
Although there was no specific provision for the entry of a conditional appearance, the court was satisfied that a practice had developed to allow such appearances and it would be contrary to the principles of fairness to estop a defendant from raising an objection to service.
On the substantive motion, the court noted that the delay in this case was 10 days. This was held to be a de minimis delay in bringing the renewal application, in contrast to delays in other cases (see Brereton v. National Maternity Hospital & Ors  IEHC 172).
The court held that the difficulties incurred by solicitors for the plaintiff amounted to sufficiently special circumstances to justify the renewal of the summons. Approximately 133 staff days had been lost due to illness and a further 85 days were lost between January and June 2022. While the summons had not been served due to inadvertence, this inadvertence could be excused by the other factors affecting the firm.
While it was correct that “mere inadvertence” would not normally justify a renewal, it was accepted that inadvertence due to other special circumstances could justify a renewal. The court cited examples such as the solicitor having a serious accident or the office suffering a fire.
The defendant had also been on early notice of the claim (and 37 other similar claims), so it could not be said that they suffered any prejudice by the renewal of the summons.
In considering the balance of justice, it was “difficult to see how a delay of 10 days could prejudice the defendant at all”. No specific prejudice had been identified by the defendant. The Statute of Limitations point was a factor which leaned in favour of the grant of a renewal, the court held.
The court held that the circumstances would not justify a much longer period of delay in bringing the renewal application. However, the very short period of delay, coupled with the reasons given and the lack of prejudice to the defendant, amounted to special circumstances.
Accordingly, the application to set aside the renewal of the summons was dismissed.
Murphy v. Depuy Ireland Unlimited Company  IEHC 220