Supreme Court: Analysis of test for renewal of summons and clarity on service outside jurisdiction

Delivering judgment for the Supreme Court, Mr Justice Séamus Woulfe opined that the Court of Appeal erred “in treating O.11A, r. 4(1) as applicable in respect of the second defendant and the third defendant, and in going on to treat the failure to obtain leave as a knock-out blow to renewal of the summonses”.

Background

The plaintiff was employed by one or other of two companies registered in Tajikistan and Sweden, the first and second defendants. Differences arose between the plaintiff and those parties, following which the plaintiff’s employment was terminated in 2017. The plaintiff alleged that the third defendant, a Swiss company, bore fiduciary duties towards him.

The plaintiff subsequently issued personal injuries and protected disclosure proceedings as against all three defendants.

The plaintiff’s legal team originally believed that leave of the court to serve the proceedings out of the jurisdiction was required only in respect of the first defendant in Tajikistan, where in fact, it appeared that leave should have been sought in respect of all three defendants having regard to Order 11A, rule 4(1) of the Rules of the Superior Courts (RSC).

Difficulties arose which led to the expiry of the summonses prior to their service on those defendants, leading the plaintiff to bring applications to the High Court seeking the renewal of the summonses.

Mr Justice Denis McDonald was satisfied that “special circumstances” existed justifying renewal under Order 8, rule 1(4) RSC, namely the “difficulty in effecting service of the proceedings” experienced by the plaintiff.

The second and third defendants then applied to set aside the orders of the High Court on the basis that no such special circumstances existed. Ms Justice Emily Egan refused to set aside the summonses, save for the personal injuries summons as against the third defendant in respect of which she noted additional frailties which could not have given rise to a reasonable expectation of service within the lifetime of the summons.

The Court of Appeal allowed the defendants’ appeal and upheld the High Court’s refusal to renew his personal injuries summons as against the third defendant. The court focused on the plaintiff’s failure to obtain leave from the court and the fact that the proceedings could not have been validly served, finding that the plaintiff’s failure to adhere to proper service procedures could not amount to a special circumstance justifying renewal.

The plaintiff was granted leave to appeal to the Supreme Court in November 2024, on the issue of the meaning of “special circumstances” as it appears in Order 8, rule 1(4) and the test for the renewal of a summons.

The Supreme Court

Having heard the parties and having set out the relevant jurisprudence and legislative framework, Mr Justice Woulfe expressed his broad agreement with the Court of Appeal in Kearns v. Evenson [2023] IECA 297 that Order 8, rule 1(4) “provides for one test or one question: are there special circumstances which justify an extension?”

The judge continued that “the Court should view the special circumstances put forward in conjunction with the balance of the test in O. 8, r. 1(4) as a single overall assessment as to whether it is in the interests of justice that the summons be renewed”.

As to the application of Order 11A, rule 4(1) RSC, the judge considered inter alia that ordinary meaning of the words in the rule indicate that the requirement for leave is applicable to each and every “such” co-defendant as referred to earlier in the rule, being those defendants not domiciled in a EU member state or contracting state of the Lugano Convention, rather than each and every co-defendant to the proceedings in general.

Having determined that the Court of Appeal erred in treating O.11A, r. 4(1) as applicable to the second and third defendants and by treating the failure to obtain leave as fatal to renewal of the summonses, the court proceeded to consider the test for renewal in the absence of “that erroneous knock-out blow”.

As to the second defendant, the court recalled that the plaintiff’s solicitor decided to effect service of both sets of proceedings directly on the second defendant in Sweden, pursuant to Council Regulation (EC) No. 1393/2007. 

Noting that the Swedish receiving agency, contrary to its obligations, did not effect service of the personal injuries summons until 1 September 2020, two months after its expiry, Mr Justice Woulfe highlighted: “It is important to note that the plaintiff had no control over this at all, and the uncontradicted evidence is that the plaintiff’s solicitor was unaware of this delay.”

The court agreed with Mr Justice McDonald that “the difficulties encountered in serving the personal injuries summons on the second defendant, which were essentially due to the delay on the part of the Swedish receiving agency in effecting service within one month as required under the EC Regulation, amount to special circumstances that prima facie could justify renewal of the summons”.

The court was further satisfied that having regard to the background factors, including the fact that the second defendant had notice of the proceedings immediately after commencement, it was in the interest of justice to renew the personal injuries summons.

The court also considered that there had been no necessity from a timing perspective to renew the protected disclosure proceedings as against the second defendant, where same had actually been served prior to expiry in February 2021.

As to the third defendant, the court recalled that although the personal injuries summons had expired by July 2020, the plaintiff’s solicitors only took steps to serve the summons pursuant to the Hague Convention and Order 11E RSC in October 2020.

The court noted that in doing so, the plaintiff’s solicitors erroneously bypassed the requirement to refer to the Master of the High Court, “the Irish central authority, who must certify certain matters before transmission of the request to the foreign central authority”.

Highlighting the averment of the plaintiff’s solicitors that as of 23 January 2020, their understanding was that the rules for service on the second and third defendants were contained in Council Regulation (EC) No. 1393/2007 and the Hague Service Convention respectively, Mr Justice Woulfe noted that the plaintiff’s solicitor failed to explain why no steps had been taken to serve the personal injuries summons on the third defendant pursuant to the Hague Convention between 23 January 2020 and its expiry.

Without that evidence, the judge could not conclude that there were special circumstances justifying the renewal of that summons.

As to the renewal of the protected disclosure proceedings against the third defendant, the court identified “one essential difference” to the circumstances of the service of the personal injuries summons, in that those proceedings were served before expiry, “albeit that this service involved some irregularity”.

Remarking that “I feel that renewal of this summons is the closest call arising”, Mr Justice Woulfe found that special circumstances arose.

The judge considered that at the time when the third defendant’s solicitors queried whether the correct steps to effect service pursuant to the Hague Convention had been carried out, the plaintiff’s solicitors would still have had three months to re-serve the proceedings in compliance with the Convention and Order 11E procedures. “However, by this time, they appeared to have an additional, and perhaps more significant, problem, in that they had not obtained leave to serve the third defendant outside the jurisdiction,” he noted.

Pointing out that this supposed problem was in fact misconceived, the court observed that “it was undoubtedly prevalent among legal practitioners at the time, as evidenced by the firm position advanced by the solicitors for the second defendant and for the third defendant”.

Finding that the consequence, as it appeared to the plaintiff’s solicitors, was that the irregularity arising from Order 11E could not be corrected until leave was obtained, Mr Justice Woulfe determined that it was fair and reasonable to view the circumstances as involving a very widespread mistake of law, as opposed to mere inadvertence or inattention.

Having regard to the background factors, the court determined that it would be contrary to the interests of justice to set aside the order for renewal of the summons in the protected disclosure proceedings.

Conclusion

Accordingly, the Supreme Court made orders refusing to set aside the renewal of both summonses as against the second defendant and refusing to set aside the renewal of the protected disclosure summons as against the third defendant, and dismissed the appeal in relation to renewal of the personal injuries summons as against the third defendant.

Power v CJSC Indigo Tajikistan & Ors [2025] IESC 55