Court of Appeal: plaintiff only needs to show evidence of ‘special circumstances’ to justify renewal of summons

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 3
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Robert Haughton

The defendant had submitted in their appeal that the new rules required a two-step test to renew a summons. They argued that the new Order 8 RSC required that a plaintiff must first show special circumstances to justify an extension of time to bring an application to renew and then provide “good reasons” to justify the renewal. However, the court rejected this argument.

Background

Order 8 RSC deals with renewals of a summons by a court where a plaintiff has failed to serve it within 12 months. In 2018, the Order was amended to limit the maximum period that a court could renew a summons to 3 months. Further, the new Order 8 Rule 4 RSC required a court to be “satisfied that there are special circumstances which justify an extension” of the summons.

The plaintiff, Ms Sheila Murphy, issued medical negligence proceedings against the defendant, the Health Service Executive by way of a protective personal injuries summons in August 2018. The summons stated that the plaintiff had not received expert medical reports to particularise the claim and that the summons only issued to avoid the claim being statute-barred.

There was then a period of inactivity resulting from the plaintiff failing to provide outlay for the medical reports and delays in receiving medical reports from doctors. The summons expired in August 2019 without being served on the defendant. It was only in January 2020 (after the plaintiff received the expert reports) that the HSE was notified of the claim against it. The summons was renewed and served on the HSE following an ex parte application to Ms Justice Deirdre Murphy in February 2020.

The HSE brought an application to set aside the renewal of the summons, claiming that the 5-month period between the expiry of the summons and the renewal application was excessive. It was also submitted that there was a significant delay in seeking the expert medical reports and that this did not constitute a special circumstance which justified a renewal of the summons.

In a written judgment delivered in September, Mr Justice Kevin Cross refused the application to set aside the renewal and held that the delays in receiving medical reports was a special circumstance to justify the renewal. The HSE appealed the decision, claiming that the trial judge applied the incorrect legal test under Order 8 RSC.

Court of Appeal

On Friday, the Court of Appeal dismissed the defendant’s appeal and affirmed the High Court decision to renew the summons. Giving the judgment of the court, Mr Justice Robert Haughton said that this was one of the “vast majority of medical cases” that required the plaintiff to obtain two reports before making the application to renew the summons. The judge held that the barristers’ code of conduct prohibited a practitioner from settling a medical negligence summons without sufficient expert evidence and it was not always possible or within the solicitor’s control to receive these expert reports in a timely manner. However, it was important for lawyers to “move with expedition” to seek medical opinions to prosecute a claim, the court said.

The High Court was entitled to hold that there was no significant or culpable delay in circumstances where the plaintiff’s solicitor was still awaiting medical reports in January 2020. There was also no real delay in briefing the two experts in the case, the court said. Further, the delay of five 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.

Interpretation of the Order 8 test

In reaching its decision, the parties made submissions on the appropriate test under Order 8 RSC. The test had been considered in several High Court judgments since the amendment to Order 8, with some judges concluding that there was a two-step test under the new rules. Other judges, such as Mr Justice Cross in this case and Ms Justice Niamh Hyland in Brereton v The Governors of the National Maternity Hospital, HSE and Ors [2020] IEHC 172 had expressed scepticism that the two-step test was the correct approach.

In cases such as Murphy and Cullen v ARF Management Limited and Ors [2019] IEHC 802, Ellahi v The Governor of Midlands Prison and Ors [2019] IEHC 923 and Downes v TLC Nursing Home Limited [2020] IEHC 465, the trial judges had concluded that a plaintiff must satisfy two requirements which were 1) that there were “special circumstances” to justify an extension of time to bring the application and 2) that there were “good reasons” to renew the summons. The defendant argued that the High Court had erred by not adopting this approach in the proceedings.

However, the Court of Appeal ruled that the only test which a court should apply in the context of a renewal application is whether there are special circumstances which justify a renewal of the proceedings. Mr Justice Haughton closely examined the wording of the new Order 8 and said that to read a two-step test into Order 8 “is to introduce words that simply are not there.” If the legislature had intended a two-step test to apply, “it would have done so explicitly.” As such, the court determined that the decisions in Murphy, Ellahi and Downes were not correct statements of the law.

Mr Justice Haughton also held that a plaintiff is entitled to renew a summons at least twice, once with the Master and once in the High Court. As such, the court held that the decision in O’Connor v HSE [2020] IEHC 551 was incorrectly decided insofar as it stated that there can only be one renewal with either the Master or the High Court.

Conclusion

Applying the test to the facts, the Court of Appeal dismissed the appeal and granted the costs of the High Court application to the plaintiff. The court also provisionally awarded costs of the appeal to the plaintiff.