Peter Devitt: Clarification of circumstances under which a summons can be renewed
Peter Devitt, associate at Hayes Solicitors, examines a decision bringing clarity to the interpretation of the “special circumstances” test for plaintiffs who are seeking to renew a summons.
Under the Rules of the Superior Courts, a Summons (the document that initiates legal proceedings) remains in force for a 12-month period from the day it is issued. If the Summons is not served on the defendant(s) within that 12-month period, it expires and cannot then be validly served.
Order 8 rule 1 of the Rules of the Superior Courts (RSC), as originally drafted, provided that a Summons could be renewed where the Court was satisfied that reasonable efforts had been made to serve it on the Defendant(s) during the 12-month currency of the Summons, or “for other good reason”.
Order 8 Rule 1 RSC came into effect on 11 January 2019, introducing the following changes:
- Applications for leave to renew a Summons before it expires are made to the Master of the High Court (Order 8 Rule 1(1)). The Master may grant leave to renew “if satisfied that reasonable efforts have been made to serve such Defendant, or for other good reason”. The renewal is for a 3-month period.
- Applications for leave to renew a Summons after it has expired can only be made to the High Court (Order 8 Rule 1(3)). The Court may grant leave to renew if “satisfied that there are special circumstances which justify an extension”. The renewal is for a 3-month period.
However, far from eliminating uncertainty the new substituted Rule seemed to create greater uncertainty for litigants as was seen in a series of High Court decisions which offered conflicting views on the test to be applied when considering whether or not to grant leave to renew a Summons2.
Thankfully, some clarity has been brought to bear on the situation by the recent Court of Appeal decision in Murphy v HSE  IECA 3 delivered by Judge Robert Haughton on 15 January 2021.
Murphy v HSE
In Murphy, the Court of Appeal dismissed the Defendant’s appeal against a renewal of a Personal Injuries Summons and confirmed the proper legal test for the renewal of a Summons under the recent amendment to Order 8 of the Superior Court Rules:
- If the initial 12-month period has not yet expired, the application for leave to renew the Summons is made to the Master of the High Court. Before granting an Order to renew a Summons, the Master must be satisfied either that “reasonable efforts” have been made to serve such Defendant, or “other good reason” exists to justify renewal - now for the shorter period of 3 months. The test before the Master is the same as it was under the original Order 8 and therefore the existing jurisprudence still applies when looking to assess if there was “good reason” to grant a Plaintiff leave to renew. Judge Haughton stated that it is clear from the Rules that there can only be one such application to the Master and only one Renewal Order can be made by the Master.
- If the initial 12-month period has expired then the Plaintiff is entitled to bring an application to extend time for leave to renew the Summons, and the only test which a Court should apply in the context of such a renewal application is whether there are “special circumstances” which justify a renewal of the proceedings.
The Court of Appeal gave the following guidelines in relation to “special circumstances” justifying an extension:
- Whether special circumstances arise must be decided on the facts of a particular case and it would be unwise to lay down any hard and fast rule.
- It is generally accepted that it is a higher test than that of “good reason”.
- The use of the word “special”, whilst it does not raise the bar to extraordinary it nonetheless suggests that some fact or circumstances that is beyond the ordinary or the usual needs to be present.
- The Court should consider whether it is in the interests of justice to renew the Summons, and this entails considering any general or specific prejudice or hardship alleged by a Defendant and balancing that against the prejudice or hardship that may result for a Plaintiff if renewal is refused.
- The Court of Appeal considered the question as to whether inadvertence on the part of a Plaintiff or their solicitors can ever amount to or be relied upon as a special circumstance. The Court stated that as far as a Plaintiff is concerned this is very fact dependent and it is probably not helpful to speculate in a vacuum. As far as legal advisers are concerned the Court expressed the view that inadvertence or inattention, for example in effecting service of the Summons, would rarely constitute “special circumstances”. Legal advisers must be taken to be aware of the 12-month time limit for service of the original Summons and the consequences of allowing it to lapse.
- The Court of Appeal went on to state that provided the judge at first instance is satisfied that special circumstances exist, the jurisdiction to grant leave to renew is discretionary. It follows that the Court of Appeal, in considering a decision made by the judge at first instance to renew a Summons, should afford the judge a margin of appreciation and should not interfere with the decision unless the judge has erred in principle or there is a clear error of fact or breach of the rules of natural justice.
When applying the special circumstances test to the facts of Murphy:
- The Court of Appeal upheld the decision of Judge Cross in the High Court who had found that the barrister’s code of conduct prohibited a practitioner from settling the medical negligence Summons without sufficient expert evidence. Therefore, the Court of Appeal accepted that the absence of the necessary expert opinions to ground the case was a special circumstance justifying, in the absence of any culpable delay, the renewal and extension of time.
- In giving his decision Judge Haughton stated that this was a case like the “vast majority of medical cases” which required the Plaintiff to obtain two expert reports before bringing the application to renew the Summons.
- However, the Court of Appeal also stated that it is important for lawyers to “move with expedition” to seek medical opinions to prosecute the claim.
- The Court of Appeal found that the High Court was entitled to hold that there was no significant or culpable delay in circumstances where the Plaintiff’s solicitor was still waiting on medical reports until January 2020 (when a supportive expert report on causation was received). There was no real delay in briefing the two experts in the case, the Court said. Further a delay of 5 months before bringing the renewal application was reasonable considering the old age of the Plaintiff and the fact that she mislaid a request to put her lawyers in funds.
Judge Haughton also held that a Plaintiff is entitled to renew a summons once with the Master (before it expires) and again in the High Court (after it expires). As such, the court held that the decision in O’Connor v HSE  IEHC 551 was incorrectly decided insofar as it stated that there can only be one renewal with either the Master or the High Court.
The Court of Appeal in Murphy did not however determine the issue which arose in Murphy v ARF  IEHC 802 where Meenan J held inter alia that the High Court could renew a summons once, and once only. Judge Haughton did however make a number of obiter comments which suggest that if and when this issue comes before the Court of Appeal, the decision Murphy v ARF  IEHC 802 is likely to be overruled which opens the prospect that the High Court could renew a Summons more than once.
While the decision in Murphy brings some clarity to the proper interpretation of Order 8, Rule 1 RSC this decision appears to have lowered the bar for Plaintiffs who are seeking to renew a Summons.
Notwithstanding this, we stress how important it is for Defendants to be alive to the possibility of challenging a renewal and when faced with a renewed Summons, should ask the Plaintiff’s solicitor to provide a copy of the motion papers from the ex-parte application seeking leave to renew before entering an Appearance. In this way, the Defendant can consider the merits of bringing an application to challenge the renewal bearing in mind that any such challenge must be brought before an Appearance is entered.
However, the decision in Murphy suggests that if the Plaintiff is able to justifiably argue that it was appropriate not to serve the Summons within the initial twelve-month period, whether because they were awaiting a positive expert report or for other valid reason, the Court of Appeal is unlikely to set aside the order renewing the Summons.
The key question to ask when assessing a renewed summons is whether there are in fact “special circumstances” which justify the renewal?