Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 335
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

The principal issue in the case was whether the bringing of the renewal application prior to the expiry of the Statute of Limitations could amount to a special circumstance within the meaning of Order 8 of the Rules of the Superior Courts.

Giving judgment in the case, Mr Justice Anthony Barr held that the Statute of Limitations point was not a special circumstance which could justify the renewal of the summons.

The court also rejected submissions that inadvertence on the part of the plaintiff solicitor and a lack of prejudice to the defendants could constitute special circumstances.

Background

The plaintiff issued personal injury proceedings on 21 May 2018, arising out of an injury allegedly sustained while playing football on the defendant’s astroturf pitch. The first defendant, the Trustees of Bridge United AFC, was put on notice of the claim within two months of the accident. Correspondence was exchanged between the parties regarding the plaintiff’s PIAB application and a joint inspection took place of the defendant’s facilities.

However, the summons was never served on the defendant within the 12-month time limit. The plaintiff’s solicitor only became aware of the issue in August 2019. The expiry of the Statute of Limitations for the action was in November 2019. Accordingly, an ex parte application to renew the summons was granted on 14 October 2019 and the summons was duly served on the first defendant.

The first defendant subsequently brought a motion to set aside the renewal of the summons on the basis that there were not special circumstances grounding the renewal application. It was claimed that the only reason the summons was renewed was on the basis of inadvertence by the plaintiff’s solicitor.

In response, the plaintiff raised three points in support of the renewal. First, and primarily, the plaintiff relied on the fact that the renewal application was brought prior to the expiry of the Statute. It was claimed that this fact justified the renewal of the summons and the plaintiff relied on cases such as Mangan (APUM) v Dockery [2014] IEHC 477. It was also claimed that the plaintiff’s solicitor had failed to serve the summons through mere inadvertence and there was no prejudice to the first defendant, who was notified of the claim at an early point.

High Court

The court began by considering the Statute of Limitations point made by the plaintiff. The court noted that the application to set aside the summons was a de novo hearing and the court was require to consider the matter from the perspective of the prevailing circumstances when the ex parte application was made.

However, Mr Justice Barr accepted the defendant’s submission that the plaintiff could not “graft on” the Statute of Limitations point in the present case when it was not raised in the ex parte application. As such, the court held that the plaintiff was not entitled to argue the point.

The court also went on to say, even if it was wrong that the plaintiff had not raised the point in the ex parte application, that the Statute point could be rejected on substantive grounds. The court distinguished the Mangan case, noting that there were extensive factors independent of the Statute of Limitations point which justified the renewal of the summons. In that case, the trial judge had found that the disability of the plaintiff was such that the Statute could never run against him. However, Mr Justice Barr held that the primary factor in the case was the difficulty associated with obtaining medical reports.

The court said that, if renewal was justified based on the non-expiry of the Statute, then plaintiffs could insist on having their summonses renewed notwithstanding that there may be no good reason why their summonses were not served within the 12-month period. The fact that a plaintiff was still within time to issue fresh proceedings was not a basis for renewing a summons.

Further, the court held that a “protective summons” issued by the plaintiff was of no bearing to the proceedings. The protective summons was identical in its terms to the present proceedings and the court made no comment on the appropriateness of this step.

The court also rejected the submission that the inadvertence of the plaintiff’s solicitor in serving the proceedings was not a special circumstance for renewal. There was significant case law on the point, as exemplified by Murphy v. HSE [2021] IECA 3 and Downes v. TLC Nursing Home Limited [2020] IEHC 465. However, the court noted that in some cases, inadvertence may arise due to exceptional or unusual circumstances. If sufficient evidence was provided as to why the inadvertence occurred, then this may be an special circumstance justifying a renewal.

Finally, the court accepted that there was no specific prejudice to the defendant in the case. The court said that the defendant was notified at an early stage in the proceedings and a joint inspection had occurred of the accident locus. Despite this, the court said that a lack of prejudice was not sufficient to constitute a special circumstance.

Conclusion

In light of the above points, the court held that there were no special circumstances justifying the renewal and set aside the renewal order.