Irish High Court refuses to set aside renewal of Personal Injury Summons
02 October 2020
In the case of Shelia Murphy v. HSE (Record Number: 2018/7802P), Mr Justice Cross, in his judgment delivered on 29th September 2020, dismissed the Defendant’s Application to set aside the renewal of the Plaintiff’s Personal Injury Summons.
By summons dated 31st August 2018, the Plaintiff claimed damages for alleged negligence arising from treatment at the Defendant’s hospital in Mayo in March 2016. The Plaintiff alleges that the Defendant failed to properly treat her symptoms and, as a result, she sustained a right parietal ischaemic infarct.
The Plaintiff’s Solicitors issued a ‘precautionary summons’ in order to protect their position under the Statute of Limitations.
The Plaintiff’s Solicitors had not obtained their finalised breach of duty and causation evidence until 20th December, 2019 and 14th January, 2020 respectively. A letter of claim was sent to the Defendant (State Claims Agency) on 29th January 2020. By order of Ms. Justice Murphy of 3rd February 2020, the Plaintiff’s Summons was renewed for a period of three months due, to the specified special circumstances. The special circumstances were the delays that occurred in obtaining relevant medical reports. On 14th February 2020, the Plaintiff’s Solicitors received a letter from the State Claims Agency, nominating Solicitors to accept service of the renewed Summons. This was then served on the Solicitors for the Defendant on 19th February 2020. Thereafter, the Defendant brought an application seeking to set aside the Plaintiff’s renewal of their summons.
The relevant provisions are contained in Order 8, rule 1, which has had effect from 11th January 2019. This provides that, after the expiration of twelve months, application to extend time for leave to renew the summons shall be made to the Court. The Court on an application 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.
The Defendant’s Counsel submitted that the Plaintiff’s Solicitors’ Application to renew the Summons made no reference to ‘special circumstances’ and furthermore, that the delays in obtaining medical reports could not constitute a special circumstance to justify the extension of time for leave to renew a Summons.
In particular, the Defendant took issue with averment made on behalf of the Plaintiff that it was, in the circumstances, inappropriate to serve the Summons prior to the receipt of the expert opinions. The Defendant relied on the decision in Bingham v. Crowley  IEHC 453, in which Feeney J. stated:
“The Court is satisfied that the opinion of the first named plaintiff that additional reports were required from further medical experts was not a good reason for the non-service of the plenary summons”.
Clarke J. in the later case of Maloney v. Lacey Building and Civil Engineering Ltd , held that the absence of an expert report could be a good reason for not serving a plenary summons, but only if the expert report was reasonably necessary in order to justify the decision to responsibly maintain the proceedings and if appropriate expedition was used in attempting to prepare the report.
Counsel on behalf of the Defendant, therefore, submitted that ‘appropriate expedition was not used in attempting to procure the reports and the Defendant submits that the delay was not that of the medical advisors but that of the Plaintiff’s solicitor’. Counsel on behalf of the Defendant also submitted that the delay was compounded by the Plaintiff’s Solicitor failure to notify the Defendant of the claim and that they made no effort to apply to the Master to renew the summons before it expired. They stated that the Plaintiff’s Solicitor deliberately chose to not serve the proceedings, and that there was no inadvertence in failing to serve the Summons.
In response, the Plaintiff submitted that it was not until 14th January 2020, when they received the necessary expert opinions, that they were permitted to serve the Summons on the Defendant. The Plaintiff relied upon the Code of Conduct of the Bar of Ireland which provides at 5.1.16, that:
“Barristers shall not settle a pleading claiming fraud or professional negligence without express instructions. Save in a case of alleged professional negligence on the part of a Barrister or solicitor, Barristers ought not to settle a pleading claiming professional negligence unless they have satisfied themselves that expert evidence is or will be available to support such claim. In certain circumstances, such as when the time for issuing proceedings is in danger of expiring, Barristers may settle pleadings without such expert evidence, but should advise that proceedings should issue without being served until the required expert evidence is available.”
The Plaintiff also relied upon the decision of Costello J in Mangan v. Dockery  which was a medical negligence claim issued in 2008, arising from respiratory distress in the post-natal period in 1995. The Summons was renewed in 2013, which renewal was granted on the grounds that expert evidence was not available to proceed until 2013.
Decision of Cross J
Mr Justice Cross concluded that this was not a case of inadvertence in failing to serve the Summons in time, rather it was a deliberate failure to serve the Summons until the necessary expert opinion became available.
Mr Justice Cross held that a plaintiff is not entitled, in the absence of satisfactory and supportive expert opinion, to wait indefinitely for such opinion and then decide to apply to the court under O. 8 r. 1 (3). He stated that if a plaintiff delays unreasonably in the issuing of the Summons or does not reasonably proceed to obtain the necessary expert reports, that this would be good grounds to set aside an order granting an extension of time. However, in this claim, Mr Justice Cross held that there was not any significant delay on behalf of the Plaintiff in obtaining the necessary expert evidence. In particular, it was highlighted that the Plaintiff’s Solicitors were awaiting payment of outlay from the Plaintiff, prior to instructing the necessary experts and once this was paid, these experts were instructed forthwith.
Mr Justice Cross was critical of the failure by the Plaintiff’s Solicitor to notify the Defendant at all of the proceedings or even furnish a courtesy copy of the intended Summons. However, he held that law discourages the service of any proceedings claiming professional negligence without the necessary expert evidence. He also stated that good professional conduct prevents any Counsel settling any proceedings alleging professional negligence in the absence of the requisite reports.
Given this finding and that there was no significant delay on behalf of the Plaintiff’s solicitors in obtaining the necessary expert reports, together with the absence of any specific prejudice to the Defendant, Mr Justice Cross found that there were special circumstances justifying the application and the order made on 3rd February 2020, renewing the Plaintiff’s Summons, and so dismissed the Defendant’s application.
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*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.