In Hadnett v Joyce, 2025 IEHC 599, the High Court refused the plaintiff’s application to renew a Personal Injuries Summons in circumstances where the Summons was not served within the required 12-month period.

Order 8 Rule 1(4) Rules of the Superior Court provides that:

‘’the Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.’’

Pursuant to Order 8 Rule 1(4) RSC, a Personal Injuries Summons can only be renewed where the court is satisfied that there are ‘’special circumstances’’ which justify granting an extension. Such circumstances are to be stated in the order. In this case, it was accepted that Murphy v HSE 2021 IECA 3[i] is the leading authority and in that judgment Haughton J held that the use of the word ‘special’ in the phrase ‘special circumstances’ while not raising the bar to extraordinary, nonetheless suggested that some fact or circumstance that is beyond the ordinary or usual needs to be present and that whether special circumstances arises must be decided on the facts of the particular case and that it would be unwise to lay down any hard and fast rule. Haughton J went on to say that the court should consider whether it is in the interests of justice to renew the summons and this entails considering any general or specific hardship alleged by a defendant and balancing that against the prejudice or hardship that may result for a plaintiff if renewal is refused.

In Hadnett, the High Court has now reaffirmed the test for ‘special circumstances’ and found that mere inadvertence by a solicitor does not amount to special circumstances within the rule.

Background

The plaintiff issued a Personal Injuries Summons on 21 July 2023 alleging negligence against the defendant and a pre-action letter was served directly on the defendant. The plaintiff was notified of the nominated firm of solicitors for the defendant on 20 September 2023 and was advised that they have authority to accept service of any proceedings on behalf of the defendant. The nominated firm also wrote to the plaintiff’s solicitors confirming that they had authority to accept service of the proceedings.

The plaintiff wrote to the nominated firm for the defendant on 10 April 2024, seven months later, seeking delivery of a Defence. The nominated solicitors responded to the plaintiff by advising that they are not on record in this matter where proceedings had not yet been served. They further noted that they had authority to accept service of the proceedings. Following same, the Summons was not served and further warning letters for the Defence and an Affidavit of Verification were sent by the plaintiff to the nominated firm.

The Summons expired on 20 July 2024. On 6 August 2024, the plaintiff’s solicitors served the original Summons on the nominated solicitors for the defendant. The nominated firm for the defendant responded advising that they would not accept service of the proceedings in circumstances where the Summons expired prior to service and that the claim was now statute barred.

On 23 August 2024, the plaintiff’s solicitor noted that it transpired that they omitted to send the issued Summons which was ‘’mere inadvertence’’. The defendant’s solicitors issued an application seeking an order setting aside the service of the Summons. The plaintiff’s solicitor issued a further personal injury summons on a protective basis and issued an application to renew the original Summons.

The plaintiff’s solicitor pleaded that he believed the Summons had been served and the reason for delay in delivery of a Defence was as a result of ongoing liability investigations by the defendants which he claimed is standard practice in medical negligence cases.  It was also asserted that the plaintiff’s solicitors ‘’assumed’’ the Summons had been served by his assistant.

It was argued by the plaintiff that this was not a case of mere advertence in circumstances where the plaintiff’s solicitor operated at all times on the honest belief that the Summons had been served.

Counsel for the plaintiff argued that this case was similar to the facts in Brereton v The Governors of the National Maternity Hospital [2020] IEHC 172 where Ms Justice Hyland found there were special circumstances where there was solicitor inadvertence in failing to serve a Summons within the timeframe.

The High Court noted that the judgment in Brereton pre-dated Murphy v HSE [2021] IECA 3 and noted that following same, the position was made clear by Mr Justice Haughton that some exceptional or unusual circumstances which explain and contextualise solicitor inadvertence would be required in order to establish special circumstances.

Judgment of the High Court

The Court stated that there were two periods of inadvertence on the part of the plaintiff’s solicitor, neither of which were explained or justified by reference to exceptional or unusual circumstances.

On observing the facts, Mr Justice Ferriter held that there were no ‘special circumstances’ within the proper meaning of the rule. The Court observed that the plaintiff’s solicitors were on clear notice of the fact that the Summons had not been served.

Mr Justice Ferriter found that the failure to serve the Personal Injuries Summons was due to mere inadvertence by the plaintiff’s solicitor, without any exceptional or unusual circumstances that could justify renewal under the ‘special circumstances’ test and Mr Justice Ferriter refused to order the renewal of the Summons.

It was also noted that had the plaintiff established special circumstances, the interests of justice would have favoured renewal given that the defendant could not point to any specific prejudice which would have resulted from the summons being renewed and where the failure to renew the Summons would likely result in the plaintiff’s claim being statute barred. This confirms that ‘special circumstances’ must first be established before there will be a consideration of the interests of justice. This was previously alluded to by Mr Justice Allen in Power v CJSC Indigo Tajikistan 2024 IECA 47 where it was stated that establishing special circumstances is a ‘gateway’ requirement for the renewal of an expired summons which must be satisfied before any question of prejudice arises. It had also been stated by Mr Justice Noonan in Nolan v The Board of Management of Saint Mary’s Diocesan School 2022 IECA 10 that it must first be established that there are special circumstances before the question of prejudice (as part of the interests of justice) will be examined.

Comment

Mr Justice Ferriter’s decision has reiterated the findings in Murphy v HSE that for ‘Special Circumstances’ to exist, there needs to be some fact or circumstance beyond the ordinary or usual. In this case, it was stated that there was no exceptional or unusual factor explaining or excusing the inadvertence.  The High Court’s decision highlights that mere inadvertence by a solicitor will not amount to special circumstances and that the facts of each case will be carefully scrutinised to determine whether ‘special circumstances’ exist to justify a renewal of a Summons.

This decision should act as a reminder to practitioners to be aware of the relevant time limits for the delivery of pleadings generally and in particular, the 12-month period in which to serve an issued Personal Injuries Summons.

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[i] For further consideration of Order 8 of the Superior Courts and relevant caselaw – please see our previous briefings in this regard – https://hayes-solicitors.ie/news/two-wrongs-dont-make-a-right-renewal-of-personal-injury-summons-case-law/ and https://hayes-solicitors.ie/news/clarification-of-circumstances-under-which-a-summons-can-be-renewed/.

Court Clarifies ‘Special Circumstances’ Test | Hayes LLPHayes solicitors LLP

PI Summons Renewal: Special Test | Hayes Solicitors LLPHayes solicitors LLP