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"Special circumstances" requirement for leave to renew a Summons

Mark Kelly
29/06/2020

Locations

Ireland

A summons, once issued from the High Court Central Office, is required to be served on a defendant within a period of 12 months, from the date of issue. This is in accordance with Order 8 of the Rules of the Superior Courts.
 
If the time is due to expire, an application may be made to the Master of the High Court to renew the Summons. A Plaintiff is required to show that reasonable efforts have been made to serve the Defendant or that there is "good reason" for the Summons to be the renewed.
 
If the 12 month time frame has expired, then an application needs to be made to the High Court seeking leave to extend time to renew the Summons. This application is a 2 part process. The leave application is based entirely on the question of why the Summons was not renewed within the 12 months (by way of the application to the Master of the High Court) and is based on an assessment of "special circumstances". If that is satisfied, then the question of a "good reason" applies in relation to actually renewing the Summons (such as attempts at service etc).
 
The High Court recently examined the "special circumstances" rule applicable in the case of Brereton v The Governors of the National Maternity Hospital & ors [2020] IEHC 172
 
The Plaintiff was seeking leave to apply to renew the Summons from 13 March 2019 to 28 May 2019. The Summons expired on 13 March and they made the application by way of Motion on 28 May. The applicable period was 10 weeks. Originally Barr J. granted the renewal application which was then appealed to Hyland J.
 
The Plaintiff outlined in Affidavit that she had been waiting on an expert report in respect of whether or not she had grounds for a medical negligence claim and that report was only received in March 2019. Thereafter, due to inadvertence, the Summons was not served within the 12 month time period. Both the Plaintiff and her Solicitor, averred on Affidavit, that "special circumstances" applied to justify the extension.
 
However, there had been a pre-litigation letter served by the Solicitor on the Second and Third Named Defendants on 10 March 2019 (within the 12 month time period), which purportedly served a copy of the Summons. That letter, in view of the Judge, made it clear that;
 
  1. A decision had been taken to issue proceedings without the benefit of the medical report referred to above;
  2. It was intended that the proceedings would be issued before the expiry of the Summons;
  3. It was intended that the Summons would be sent with that letter.
 
The Solicitor for the Plaintiff outlined in an Affidavit that "having made the decision to proceed against the defendants, it appeared that service of the Personal Injuries Summons within twelve months was unintentionally overlooked".
 
Hyland J. was of the view that it was not a delay in respect of a medical report, but was the inadvertence to serve the proceedings. The case law to date in respect of such inadvertence, supported the Defendant's proposition that such inadvertence on the part of a legal advisor was not a "good reason" and still less constitutes a "special circumstance". 
 
Any such inadvertence is normally set against a backdrop that the delay in serving the proceedings had prejudiced a Defendant, in terms of witness availability or other means by which defending a claim are no longer available.
 
In this particular case, Hyland J opined that "special circumstances" did exist on the following basis;
 
  • The Plaintiff's Solicitor intended to serve the Summons before the expiry of the 12 month period as outlined in their pre-litigation letter of 10 March 2019;
  • The Plaintiff's Solicitor inadvertently failed to do so;
  • The Plaintiff's Solicitor wrote to the defendant before the expiry of the twelve month period by letter of 10 March 2019, thus informing the defendant of the intended proceedings prior to the expiry of the 12 month period;
  • The application to renew the summons was made on 28 May 2019, only 10 weeks after the Summons expired, thus the period was relatively short compared to other applications in the context of case law relied upon;
  • Given the relatively short delay, there was unlikely to be any significant prejudice to the Defendant and none was identified;
  • Should the timeframe not be extended, the Plaintiff was at risk of falling outside of the Statute of Limitations.
 
Judge Hyland refused the application by the defendants to set aside the Order of Barr J. permitting the renewal of the Summons.
 
A full copy of the Judgement can be obtained here.

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