High Court: Renewal of professional negligence summons set aside



Andrew McKeown BL
Andrew McKeown BL

The High Court has set aside a judge’s renewal of a summons in a case concerning alleged professional negligence in circumstances where the summons had already been renewed by the Master of the High Court.

Background

In August 2013, Elizabeth O’Connor gave birth to a child by way of caesarean section at St Luke’s Hospital, Kilkenny. In the following months, she developed kidney function problems and required surgery. She claimed that the surgeon, who carried out the C-section, said the kidney damage was something that ought not to have occurred”.

A PI summons was issued on her behalf in November 2015. It was renewed by the Master of the High Court in November 2016, and again renewed by Mr Justice Michael MacGrath in July 2019.

High Court

The Health Service Executive (HSE) sought an order pursuant to Ord.8 r.2 RSC setting aside that second order renewing the PI summons. Declan Buckley SC, for the HSE submitted that the judge lacked jurisdiction to make that order as it had already been renewed by the Master. Under the new Ord.8 RSC (inserted by S.I. 482/2018, which took effected from 11 January 2019) it is only possible to have one renewal of a summons. He also argued, in the alternative, that there were no special circumstances justifying a further renewal of the summons as required by Ord.8 r.1(4) RSC.

Citing Mr Justice Charles Meenan’s decision in Murphy & Anor v ARF Management Ltd. & Ors [2019] IEHC 802, he said the new Ord.8 did not avail Ms O’Connor either, because it was clear from that the court only had the power to grant one renewal of the summons.

He submitted that the question of whether there were special circumstances justifying such further renewal, simply did not arise, as the renewal was not made during the currency of the previous summons. Counsel referred to Meagher v Sandys & Brophy [2016] IEHC 37, where Ms Justice Marie Baker held that where the application to renew had not been made during the currency of the previous renewal of the summons, the question of whether there was good or sufficient reason to renew the summons was not engaged. That three-part test for good and sufficient reasons, he submitted, was set down by Ms Justice Mary Finlay Geoghegan in Chambers v Kenefick [2007] 3 IR 526. First, whether there was good reason to renew the summons. Second, whether the court was satisfied because of the good reason, that it was in the interests of justice between the parties to make an order for renewal of the summons. Thirdly, in considering the question of whether it was in the interests of justice to renew, the court should consider the balance of hardship for each party if the order for renewal is or is not made.

Ms Justice Niamh Hyland held in Brereton v Governors of the National Maternity Hospital & Ors [2020] IEHC 172 that the new Ord.8 constituted a higher bar than the test previously in place. In considering the meaning of special circumstances, she concluded that previous case law on “good reason” was still relevant in the context of the “special circumstances” test.

He said that there had been inordinate delay on Ms O’Connor’s part in progressing the matter.

Michael Counihan SC, for Ms O’Connor, submitted it was appropriate to consider that this was a medical negligence case, having regard to the dicta of Mr Justice Peter Charleton in Green v Hardiman [2019] IESC 51. Time did not stop, as it would for ordinary plaintiffs during the PIAB assessment, and Ms O’Connor was therefore under considerable pressure to issue proceedings before being barred by the Statute of Limitations. Such ‘protective writs’ are common. He noted Cooke v Cronin & Neary [1999] IESC 54, where it was held that serving a summons for professional negligence without the support of an expert was inappropriate. He submitted that where such an expert report was required, that that constituted special circumstances justifying the renewal of the summons, relying on Mr Justice Kevin Cross’ judgment in Murphy v HSE [2020] IEHC 483 and Mr Justice Frank Clarke’s decision in Moloney v Lacey Building and Civil Engineering Limited [2010] IEHC 8.

He cited Mr Justice Frederick Morris’ judgment in Behan v Bank of Ireland (Unreported, High Court, 14 December 1995), where he held that defendants have the onus of satisfying the court that there are facts or circumstances in the case which, if the court which made the order in the first instance had been aware, would not have made the order.

Referring to the judgments of Mr Justice Brian O’Moore in Ellahi v Governor of the Midlands Prison & Ors [2019] IEHC 923 and Ms Justice Hyland in Brereton, Mr Justice Anthony Barr said that while he was “hesitant to depart from the views expressed by my learned colleagues”, he was of the view that Mr Justice Meenan’s opinion in ARF Management was the correct interpretation of Ord.8 as it currently stands.

Accordingly, the judge said that only one test is applicable when an application is made to the High Court for renewal of a summons, which application is made more than one year from the date of issue of the summons, being that of whether there are “special circumstances” justifying such renewal. The longer a plaintiff delays beyond one year from the date of issue of the summons, the more difficult it will be to persuade the court that there are special circumstances which justify the renewal of the summons.

Therefore, he held that Mr Justice MacGrath did not have jurisdiction to make the order extending the time for service of the summons.

The judge was satisfied that the fact that Ms O’Connor may be statute-barred if the summons was not renewed, was more or less balanced out by the issue of prejudice to the HSE if it was renewed: “A hardship will be worked on either party no matter which way the decision is made.”

Conclusion

The court granted the HSE’s application to set aside the renewal of the summons.

© Irish Legal News Ltd 2020



Other judgments by Mr Justice Anthony Barr

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