The High Court has delivered a recent judgment in McGuinness v. Sharif and Hermitage Medical Clinic  IEHC 438 in which Hyland J. reaffirms the legal basis for renewing Personal Injury Summons in accordance with Order 8, Rule 4 of the RSC. Of note to defendants, the Court also referenced the need for defendants to move swiftly, when advancing an application to strike out an order renewing a Personal Injury Summons.
On 12 January 2017, the Plaintiff issued a Personal Injury Summons against the Defendants in respect of an operation carried out on his left hip on 5 February 2015. Three years later, on 13 January 2020, an ex parte application was brought before Murphy J. who granted an Order renewing the Personal Injury Summons, as permitted by Order 8, Rule 4 of the RSC. It was averred in the grounding affidavit that the Plaintiff had originally instructed another firm of solicitors, but the case was not progressed on his behalf, thus requiring him to instruct an alternative firm. It was also averred that there was an unavoidable delay in obtaining the Plaintiff’s files from the previous firm of solicitors which were needed to obtain a medical liability expert report in order to ground a cause of action.
After the renewal of the Summons, the first-named Defendant sought more information surrounding the failure to serve the original Summons. However, this correspondence was not replied to. Consequently, the first-named Defendant issued a Motion on 15 July 2020 to set aside the renewal. The second-named Defendant did not issue a motion seeking to set aside the leave until 26 February 2021.
Judgment of the High Court
The High Court noted that the failure by the Plaintiff to respond to the first-named Defendant’s request for further information pertaining as to why the original Summons was not served, made it difficult for the Defendant to understand the basis upon which the Summons had been renewed and in turn made it difficult for it to decide whether to bring the motion to set aside the renewal.
The Court stated that it is ‘vital’ that when an Order is made renewing a Summons on an ex parte basis, particularly when a significant period of time has elapsed since the expiry of the Summons, that solicitors respond ‘fully and expeditiously’ to any requests for information about the circumstances of the renewal.
The Court observed that, in this case, the Plaintiff’s solicitors provided information to the Defendant surrounding the renewal of the Summons in a ‘drip feed fashion’ but Hyland J. drew a distinction between a situation where a Plaintiff seeks to raise new arguments in response to an application to set aside a renewal and where the Plaintiff provides supplementary evidence in addition to arguments that have already been made. The High Court ultimately held that the former is impermissible, but that the latter is permitted, although not desirable.
The High Court added that under Order 8, Rule 4 RSC ‘any judge renewing a summons is required to state the special circumstances justifying an extension of time in the Order.’ This observation now commands that the Court observe the 2018 amendment by way of S.I. No. 482/2018 which altered the test applicable to an application for renewal of Summons from ‘good reason’ to ‘special circumstances,’ which Hyland J. claims is a ‘higher bar’ to surmount.
The High Court analysed the ‘special circumstances’ test in respect of renewing Summons for medical negligence claims and reiterated the test as set out by Haughton J. in Murphy v HSE, in which he stated that where the absence of a medical expert report is put forward as a reason for not serving summons, which was done in this instance, the expert report must be ‘reasonably necessary’ in order to justify the decision of responsibly maintaining proceedings in the first place, as opposed to being necessary to merely advance the proceedings, such as the drafting of a statement of claim or bringing the case to trial. Secondly, it must also be established that the absence of the report was ‘reasonable’ insofar that expedition was used by the party placing reliance on the report to procure same. Inadvertence on part of the solicitor could be fatal to any party seeking to rely on the second limb of this test. In these circumstances, Haughton J. emphasises the importance of moving with expedition, if not ‘alacrity.’
In assessing the facts of this case, the High Court observed that during the 6-month period from when the Summons lapsed, no steps had been taken by the Plaintiff’s solicitor to proceed, but it transpired that there was confusion on part of the originally instructed solicitors as to who represented the Plaintiff. It was not until one year after the Summons had lapsed that the originally instructed solicitor handed over the relevant files to the newly instructed solicitor. It was in light of the ‘highly unusual circumstances’ behind the delay in renewing the Summons, that the High Court commended the newly instructed firm of solicitors for their expedition. However, prior to the renewal of the Summons, and to the newly instructed solicitor obtaining the Plaintiff’s file from the originally instructed solicitor, the newly instructed firm sought medical expert reports, but failed to inform the Defendant of how they obtained those reports and identify the date upon which they came into their possession. The High Court noted this aspect of the Plaintiff’s solicitors’ behaviour as ‘unsatisfactory’ given that they provided information about the reasons as to how they could not proceed but did not disclose information which might have assisted in proceeding earlier. It is clear from this judgment that transparency and expedition are paramount in such a context.
Ultimately, the High Court observed that between January 2019 and December 2019, after the newly engaged solicitors obtained the Plaintiff’s file from his original solicitor, that they acted with ‘reasonable expedition’ and that no delay could be attributed to them. In line with the test in Murphy, the High Court held that the Plaintiff’s new solicitors acted with adequate expedition, if not alacrity which allowed them to satisfy the special circumstances test.
It is also apparent from the judgment of Hyland J. that the obligation of alacrity is not one-sided in seeking to resist a renewal. Where a delay in renewing Summons can tilt the balances of justice in favour of those seeking to resist a renewal, the same can occur where those seeking to resist an application to renew fail to act expeditiously. The Court noted that although the first-named Defendant exercised expedition, the second-named Defendant took an ‘inordinate’ amount of time to bring an application to set aside these proceedings and failed to provide a substantive reason in support of their application. Consequently, the Court was convinced that the balance of justice favoured the refusal of such an application and re-tilted the balance in favour of the Plaintiff. It is clear that those resisting a renewal on the basis of the lingering distress it can cause for medical practitioners, cannot equally allow litigation to linger beyond reason as this will recalibrate the balance of justice in favour of a renewal.
As regards the balance of justice, the Court noted that there was likely to be a very significant prejudice to the Plaintiff who would be almost certainly statute barred if the Summons was not renewed. However, the Court stated that neither the absence of prejudice in respect of the Defendant, nor a claim being statute barred will necessarily tilt the balance of justice in favour of a Summons being renewed. The primary factor which influenced the judgment of the High Court in this instance was the delay occasioned by the second-named Defendant to issue a Motion seeking to set aside the renewal. There was a delay greater than 13 months between the Order of Murphy J. renewing the Summons and when the second-named Defendant issued a motion to set the renewal aside. In this regard, the High Court held that ‘where a decision is made to set aside the renewal of summons this must be done quickly.’ Hyland J. added that it is ‘incumbent’ upon both sides that matters are moved along with ‘expedition at every step.’ The Court reiterated the decision of Clarke J. in Moloney v Lacy Building that the renewal of Summons outside the limitation period amounts to the ‘stretching of the principles behind the existence of a statute of limitations,’ and it is upon that observation that it is evident that the Court will command expedition from both sides in these cases.
Accordingly, the Court held that the special circumstances test had been met, as required by Order 8 of the RSC and that the delay occasioned by the second-named Defendant in resisting the renewal ultimately tilted the balance of justice in favour of the renewal, warranting a rejection of the application to set aside the order of Murphy J.
This judgment illustrates that an application for renewing a Summons will be closely scrutinised to determine whether special circumstances exist to justify a renewal where the Summons was not served within, what the Court observes as a ‘generous’ one-year timeframe and that equally, parties seeking to set aside a renewal Order must act expeditiously.
This decision also highlights the need for those seeking to resist a renewal to exercise as much alacrity as those seeking the renewal. The judgment suggests that a failure to act with expedition can be fatal to all parties in personal injuries litigation and although the Court disapproved of the delay occasioned by the Plaintiff, it was ultimately the second-named Defendant’s ‘far from [prompt]’ efforts to resist the application that resulted in the Court concluding that it would be unjust to strike out the order renewing the Summons. The rationale of this judgment truly echoes the simple idea that two wrongs don’t make a right.
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About the Author
Stephen is a partner in the Healthcare team at Hayes solicitors. Stephen specialises in the defence of medical and dental negligence claims taken against hospitals as well as individual medical and dental practitioners.