Noel Devins

Murphy v HSE, a recent Court of Appeal decision, confirmed the correct legal test for the renewal of a Summons under Order 8 RSC, whereby it is now sufficient for the plaintiff to demonstrate “special circumstances” to justify the renewal.

The decision also serves as a timely reminder to solicitors on the importance of acting expeditiously in both the service and renewal of Summons within the prescribed time period to avoid an inherent risk of non-renewal of the Summons by the courts.

Background

The plaintiff was seeking damages for alleged negligence and breach of duty as a result of her treatment at the defendant’s hospital. The proceedings involved an application in the High Court by the defendant to set aside an earlier Order, pursuant to Order 8 RSC, to renew the protective Personal Injuries Summons for a period of three months, following an earlier ex-parte application by the plaintiff.

In the original application for the renewal of the Summons, the reason for the delay was stated to be a difficulty in obtaining medical reports in order to prepare an expert report. An expert report is required to support a professional negligence claim and this difficulty was alleged to be “special circumstances”.

In the absence of any culpable delay on behalf of the plaintiff or her solicitors in obtaining the reports and any specific prejudice suffered by the defendant, the High Court was satisfied that the “special circumstances” necessary to comply with Order 8 did exist and the application to set aside the renewal failed.

Previous two-fold test

Following the amendment to Order 8 RSC in January 2019, the High Court (in Murphy and Cullen v ARF Management Limited [2019], Ellahi v The Governor of Midlands Prison [2019] and Downes v TLC Nursing Home Limited [2020]) appeared to confirm a two-fold test governing the application to renew a summons lodged following the expiry of a 12-month period from the date of issue of the summons:

1. The court must be satisfied that there are “special circumstances” which justify an extension of time to apply for leave to renew the summons.
2. The court must be satisfied that reasonable efforts were made to serve the summons, or that there is other “good reason” for renewing the summons.

The defendant appealed the High Court decision on the basis that the judge failed to apply the correct legal test under Order 8 RSC.   

Court of Appeal findings

The Court of Appeal dismissed the defendant’s appeal and affirmed the High Court decision to renew the summons. The Court of Appeal held that the only test a Court should apply in respect of the renewal of a summons is whether there are “special circumstances” to justify the renewal of the summons and stated that the decisions, including the two-fold test, in Murphy, Elahi and Downes were not correct statements of law.

Both the Court of Appeal and the High Court noted that the Bar Council of Ireland’s Code of Conduct supported the position that barristers may settle professional negligence pleadings without expert evidence, however, in the interim the proceedings should be issued without being served until the required expert evidence is available. The Court of Appeal also noted that it was not always possible or within the solicitor’s control to receive the expert reports in a timely manner.

Crucially, the Court of Appeal re-affirmed the High Court findings that there was no significant or culpable delay on behalf of the plaintiff or her solicitors, particularly relating to the sourcing of expert evidence. The Court of Appeal also held that a plaintiff is entitled to renew a summons at least twice, once with the Master and once in the High Court.

Comment

Whilst the Court of Appeal appears to have simplified the appropriate test for the renewal of a summons, solicitors should not delay in serving a summons, even a protective writ, within the prescribed timeframe, as a renewal may not be granted if the Court considers the ‘special circumstances’ requirement has not been met.

Undoubtedly, the failure to adequately serve a summons within the specified period resulting in a claim becoming statute barred leaves the solicitor involved exceptionally vulnerable to a professional negligence claim by their client, who has lost the opportunity to bring the underlying claim.

The following key takeaways are pertinent for solicitors with respect to the service and renewal of summons:

1. A summons can be renewed twice, once with the Master and once in the High Court
2. Should a deliberate decision be made to hold off serving professional negligence proceedings until a supporting expert report is available, the plaintiff must not unreasonably delay in obtaining said expert report.
3. Consideration should be given to the service of a courtesy copy of the summons within the required timeframe.
4. In applying for an extension of time for leave to apply for a renewal of a summons, the grounding affidavit must specify the “special circumstances” justifying the extension.
5. In the event that a protective summons requires renewal, where possible, apply to the Master of the High Court for the renewal prior to the expiry of the initial twelve-month limit, as a lower threshold of “good reason” justifying the renewal applies.

• Noel Devins is a partner and Gearóid Corrigan is a senior associate at Kennedys in Dublin.