About this case:

• Citation:
  [2025] IEHC 680
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Cian Ferriter

Delivering judgment for the High Court, Mr Justice Cian Ferriter considered that the plaintiff met a fundamental difficulty in that there was “a period of well over two and a half years from the discovery of the fact of non-service of the summons to that belated file handover by the second solicitor to the third solicitor during for which, at least in substantial part, no special circumstances can be made out”.

Background

The plaintiff underwent hip replacement surgery on 3 May 2005 at the age of 50. She was fitted with a DePuy ASR XL implant, which was subject to global recall in 2010. Both the original surgery and the revision surgery were carried out by the first defendant, since deceased.

In January 2012, the plaintiff engaged her first solicitor. The plaintiff’s personal injuries summons was issued on 23 January 2015 but was never served within the 12 month period stipulated by the Rules of the Superior Courts (RSC).

Throughout the following years, the plaintiff’s first solicitor actively misrepresented to her that she was progressing her case, notwithstanding that no progress had been made.

Thereafter, the plaintiff engaged her second solicitor. The second solicitor pursued a complaint to the Law Society as against the plaintiff’s first solicitor on her behalf.

On 5 June 2020, the second solicitor received a call from solicitors acting for the first solicitor to the effect that having reviewed the plaintiff’s file, they saw that the summons had issued in 2013 but had never been served, that nothing had been advanced on the file in the intervening period, and stated that they did not believe that the first solicitor’s insurers would indemnify her as they had not been informed of the matter.

The second solicitor informed the plaintiff of this by letter dated 19 June 2020, and called upon the first solicitor to release the plaintiff’s file without delay. Some miscellaneous correspondence from the plaintiff’s file was sent by the first solicitor to the second solicitor at the end of June 2020, but neither the original summons nor any medical records or opinions had been passed over.

The claim to the Law Society having been successful, on 12 January 2021, the second solicitor indicated to the defendants’ solicitors that an “appropriate application to the High Court” would be required, which application appeared to be a renewal application in respect of the personal injuries summons.

On 18 May 2021, the second solicitor wrote to the first solicitor indicating the plaintiff’s wish to sue the first solicitor and saying that their attempts to progress matters with the defendants and their insurers had not borne fruit and that “we have been advised by two separate senior counsel that the nonservice of the issued PI summons in this matter will prove fatal to the proceedings”.

The plaintiff approached a third solicitor in early 2022, who noted upon receipt of the plaintiff’s file from the second solicitor that it was is incomplete and lacked any medical records or opinions. The third solicitor formed the view that she required significant further information before she could advise the plaintiff whether she had sufficient grounds for making an application to renew her summons.

Having sought and received medical records from various clinics in September and October 2023, the third solicitor applied for and obtained a renewal order ex parte in respect of the plaintiff’s summons in April 2024, with the special circumstances recited in the renewal order being “that the current solicitors on record for the plaintiff were endeavouring to resolve difficulties created by the former solicitors and the fact that it was discovered in June 2020 that the summons had not actually been served”.

Subsequently, the second defendant brought an application to set aside the renewal of the summons.

The High Court

Mr Justice Ferriter considered his jurisdiction to set aside the renewal of a summons under Order 8(2) RSC, noting that the defendant must satisfy the court either that the renewal decision was incorrect in principle or that the summons would not have been renewed had the court been aware at the ex parte stage of additional facts now made known by the defendant.

In circumstances where the second defendant submitted that the judge who granted the ex parte renewal order erred in principle in finding that “special circumstances” existed justifying renewal where it alleged there were none, Mr Justice Ferriter examined the case law in relation to special circumstances.

Having regard to the general view arising from the jurisprudence that inadvertence on the part of a solicitor in relation to service of a summons was not good reason to justify renewal, the court observed that the reason why a plaintiff is generally identified with the actions of their solicitor for the purposes of the rule is that to do otherwise would be to potentially subvert the object of the rule, encouraging parties to prosecute their litigation with reasonable diligence.

Notwithstanding, Mr Justice Ferriter considered that “it is equally clear that there is no ‘hard and fast rule’” and that “special circumstances may be made out in relation to solicitor inadvertence if there are compelling, unusual circumstances which explain and justify the solicitor’s mistake such as where the solicitor was ill or where other unexpected external factors intervene to cause the mistake”.

The judge further considered that “special circumstances must cover the whole or at least substantially the whole of the extension period and that different sets of special circumstances may be made out for different periods during the overall extension period” and that “the periods of special circumstance justifying the plaintiff’s inaction must overlap at least to some extent”.

Having considered the parties submissions, the judge was satisfied that special circumstances had been made out by the plaintiff for the period from the lapse of the summons in January 2016 to the June 2020 discovery by the second solicitor of the non-service of the summons, where inter alia the plaintiff had been proactive in chasing the first solicitor to advance her case and where her conduct was so far outside the reasonable scope of the solicitor-client relationship.

The court then considered that no sufficient special circumstances existed for considerable parts of the period following June 2020 to justify the renewal of the summons over 3.5 years later, where it “behoved the second solicitor to make a renewal application within a reasonable period following discovery of the fact of non-service of the summons in June 2020”.

Finding that a reasonable allowance would have been made for those circumstances if a renewal application had not been made for a period of a couple of months after June 2020, Mr Justice Ferriter noted that “despite the second solicitor acknowledging to the second defendant’s solicitor on 10 November 2020 that an application to extend time for service of the summons would have to be made, no application was made to renew the summons until well over 3 years later”.

The judge continued: “Even allowing for the work done by the third solicitor to ready a renewal application, there is a period of over two and a half years from October/November 2020 to the handover of the plaintiff’s file to the third solicitor in March 2023 which cannot be explained by special circumstances.”

In circumstances where the court determined that the plaintiff, “who remained blameless throughout”, could not establish special circumstances for the whole or substantially the whole of the relevant period, Mr Justice Ferriter declined to embark on an interests of justice assessment.

Conclusion

Accordingly, the High Court set aside the renewal order of 8 April 2024.

Galvin v Sharif & DePuy International Ltd [2025] IEHC 680