by Katie Nugent , Claudia Denton April-07-2025 in Healthcare Law
The Court of Appeal has recently affirmed an order of the High Court which had set aside the decision by the Deputy Master to strike out the defence in Personal Injuries proceedings for a failure to comply with an order for discovery.[1]
The High Court had held that special circumstances existed relating to certain health issues on the part of the defendant solicitor and the effect of Covid 19 restrictions. It had also been held that the seriousness of the issue to be litigated justified allowing the action to proceed. The operation of Order 27, rule 15(2) Rules of the Superior Courts was the primary issue under consideration in this appeal and whether special circumstances existed which justified the failure.
There was also some consideration of the well-established principles governing extensions of time pursuant to Order 122, rule 7 which were briefly considered.
Order 27 (rule 15) (2) - Rules of the Superior Courts
Order 27 (rule 15) (2) was introduced pursuant to SI 454/2022. This provides that ‘Any judgment by default, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and any necessary consequential order may be made where an action has been set down under rule 9.’
Court of Appeal
Ms Justice Maire Whelan in the Court of Appeal stated that the rule is engaged where a failure is established which has led to the other party obtaining a judgment or order by default. She emphasised that it is incumbent on the party who seeks to have the order set aside to satisfy the court that at the relevant time (i.e. the time of the default) special circumstances existed which both explain and justify the default in question.
The Court of Appeal looked at the means to be ascribed to ‘special circumstances’ in the context of Order 27, rule 15 (2) and noted that it is not clarified within the rule itself. There had been consideration of the concept in Murphy v Health Service Executive [2021] IECA 3[2] which was in the context of Order 8, rule 1(4) which provides for the renewal of a summons. In that case Haughton J had made some general observations as to what may amount to ‘special circumstances’ as follows;
- Firstly 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.
- Secondly, it is generally accepted that it is a higher test than that of ‘good reason.’ This would seem to follow from the fact that the application to the Master is made before the summons lapses, and Order 8 does not require the Master to state the ‘good reason’ in the order.
- It also follows from the use of the word ‘special.’ While this does not raise the bar to ‘extraordinary’, it nonetheless suggests that some fact or circumstance that is beyond the ordinary or the usual needs to be present.
- Hyland J. in Brereton helpfully points by way of analogy to the test of ‘special circumstances’ as it applies in respect of a claim resisting security for costs.[3]
The Court of Appeal also referred to the case of De Souza v Liffey Meats [2023] IEHC 402 where Ferriter J adopted the approach of Haughton J from Murphy. In De Souza, Ferriter J concluded that the test for ‘special circumstances’ is a higher test than ‘good reason’, observing that ‘while this does not raise the bar to extraordinary, it nonetheless suggests that some fact or circumstance that is beyond the ordinary or the usual needs to be present.’
In considering whether ‘special circumstances’ existed in this case, the Court of Appeal found that this approach of Ferriter J in De Souza has much to commend it and the idea that each case will need to be considered on its own individual facts is pragmatic and accords with earlier authorities in this regard. In De Souza, Ferriter J had observed that in the ordinary course, mistake or inadvertence by a solicitor will not amount to ‘special circumstances’ within the meaning of the rule. In that case, he applied the particular facts presenting in De Souza and set aside the judgment obtained against the defendants as a result of non-compliance with an unless order.
Ms Justice Maire Whelan then turned to the case before her and noted that the ‘special circumstances’ contended for include:
- The acute medical condition of the CSSO solicitor having carriage of the file;
- Medical and logistical issues relevant to Covid 19 pandemic;
- Logistical difficulties arising from the lack of electronic connectivity when the solicitor was working remotely during lockdown.
After a detailed consideration of the relevant facts relating to this case, it was stated that the totality of those events in combination gave rise to a degree of exceptionality which on any reasonable view of the events constituted ‘special circumstances’. It was noted that the cumulative impact of these events brought the solicitor into a realm beyond the ordinary or the usual aspects of inadvertence, oversight or mistake that conventionally have been rejected by the courts as a basis to set aside an order obtained in default. It was found that the trial judge was entitled to conclude that the defendants had established ‘special circumstances’ as he identified based on the evidence before him.
Interests of Justice
The Court of Appeal then looked at whether the interests of justice justified the making of the order sought. It was observed that the court in Nolan v Board of Management of St Mary’s Diocesan School [2022] IECA 10 had endorsed the approach outlined in Murphy in assessing the interests of justice after the court has established ‘special circumstances’ to justify the making of the order sought. Ms Justice Whelan stated that in every case, the balance of justice is facts specific.
Haughton J in Murphy had stated that ‘…the need for the court to consider under sub – rule 4 the interests of justice, prejudice and the balancing or hardship is in my view encompassed by the phrase ‘special circumstances [which] justify extension …’
In Nolan, Noonan J considered that Haughton J in Murphy recognised that special circumstances and the justification for renewal are not two separate and distinct matters, but fall to [be] considered together in the analysis of whether it is in the interests of justice to renew the summons.
In the case before it, the Court of Appeal stated that this clearly represented the view of the court in regard to the assessment of the interests of justice where a discretionary order was made and the court adopted same.
Decision
The Court of Appeal concluded that they were satisfied that the trial judge adopted the correct approach in identifying the existence of special circumstances which prevailed at the relevant time when the omissions in question occurred. It was also stated that the trial judge considered the specific facts germane to the defendants, acknowledged delays and correctly identified the facts and evaluated the explanations and justifications offered in the balancing of competing interests of the parties in the exercise of his discretion and in deciding to grant the order sought pursuant to Order 27, rule 15 (2).
The Court of Appeal held that no valid basis was identified that would warrant interfering with the application of the rules, the exercising of the judge’s discretion over said orders in light of the special circumstances and the interests of justice as reviewed above.
Comment
The Court of Appeal’s decision offers some further insight into the factors that a court will consider in determining whether ‘special circumstances’ might arise as provided for in Order 27. It also offers insight into how the courts will consider the approach required in balancing the competing interests of the parties in the exercise of the court’s discretion and in determining whether to grant an order sought pursuant to Order 27, rule 15 (2).
The decision reaffirms that a judgment will not be set aside for mere inadvertence by a solicitor and provides practical guidance for practitioners. As was noted in De Souza, there must exist a more demanding set of circumstances or reasons. A court will look at whether the particular circumstances were outside the control of the parties and whether ‘special circumstances’ exist that both explain and justify the default. This consideration by the court will be fact specific in every case.
[1] Bowe v R.S, the Commissioner of An Garda Síochána and the Attorney General [2025] IECA 18.
[2] For further information in respect of this case, please see our previous article https://hayes-solicitors.ie/News/Personal-Injuries-Summons-Renewal-Update--Elaboration-on-the-Special-Circumstances-Test
[3] Ms Justice Whelan observed that in Brereton v The Governors of the National Maternity Hospital & ORS [2020] IEHC 172, Hyland J had considered that certain aspects of the test governing an application for security for costs were analogous to the test for ‘special circumstances’ notwithstanding that Order 29. RSC does not use that phrase in the context of applications for security for costs.
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About the Authors
Katie Nugent
Katie is an Associate on the Healthcare team at Hayes solicitors.
She specialises in the defence of medical and dental claims taken against both public hospitals and private clinicians. Prior to joining Hayes solicitors, Katie worked for four years in the area of insurance defence litigation with a particular focus on personal injury claims. She also trained in general practice with a particular focus on plaintiff personal injury claims.
Claudia Denton
Claudia is a solicitor in the Healthcare team at Hayes solicitors. Claudia advises clinical practitioners and their indemnity bodies in the defence of medical and dental negligence claims.
Claudia joined Hayes solicitors in 2019 and qualified as a solicitor in 2025.