Personal Injuries Summons Renewal Update

In the recent High Court judgment in Murphy v. Depuy Ireland [2023] IEHC 220, Mr Justice Barr offered an insightful decision in relation to the principles governing the renewal of a Personal Injuries Summons, while acknowledging the nuanced and novel caselaw arising from applications under Order 8, Rule 1(4) of the RSC, write

Stephen McGuinness and Kevin Kelly

This claim arose as one of many that were instituted by employees of the defendant company who alleged they were required to adopt awkward postures for prolonged periods of time exposing their bodies to vibrations and mechanical stress resulting in physical injuries.

This particular matter was instituted by way of a Personal Injuries Summons issued on 7 May 2021 but which was not served upon the defendant within the one-year time limit. On 17 May 2022, ten days after the Personal Injuries Summons expired, the plaintiff filed an ex parte docket and grounding affidavit seeking to renew the Personal Injuries Summons. Hanna J granted the renewal on 23 May 2022 and the Personal Injuries Summons was served on 9 June 2022.

The defendant entered an appearance on 20 July 2022 which on its face stated that they were doing so ‘without prejudice to any application that may be brought to set aside the renewal of the summons’. The defendant then issued a Notice of Motion on 25 July 2022 seeking to set the renewal aside.

In the plaintiff’s replying affidavit to the defendant’s Notice of Motion, they indicated that there were approximately 37 similar claims being pursued as against the defendant, such that they ought to have been familiar with the type and nature of the claim prior to the service of the proceedings and they also averred that there was only a lapse of 10 days in effecting proper service as the plaintiff acted expeditiously once the Personal Injuries Summons had lapsed. The plaintiff’s solicitor also averred that the nature of this claim would necessitate an expert report from an engineer and/or ergonomist which were not to hand at the time the Summons was issued.

The defendant questioned the relevance of the plaintiff relying on their lack of expert reports as to delay service in circumstances where the Personal Injuries Summons has already been issued. The defendant also queried the relevance of the defendant’s familiarity with similar claims and contended that service is still required within the time limits provided for in the rules.

The defendant in this case argued that prejudice would naturally accrue if the renewal was made in light of the alleged injury incurring over a long period of time.

Submissions Against Renewal

The defendant submitted that the special circumstances test was not met, based on six main arguments:

1. The plaintiff could not rely on the lack of expert reports in their possession as a special circumstance to justify non-service of the preissued Summons on the defendant.

2. The fact that the plaintiff was engaged in a multiplicity of actions against the defendant did not obviate their obligation under O. 8 to serve the summons within 12 months. It was submitted that each case must rest on its own facts, relying on the decision in Ward v. Harmony Row [2021] IEHC 656.

3. The COVID-19 pandemic could not be relied on by the plaintiff where service was readily possible, due to the adaptations of the legal world from May 2020 onwards. Counsel submitted that after May 2020, the pandemic was not a fact ‘beyond the ordinary and usual’, which meant that it could not be considered a special circumstance. In that regard, counsel relied on the decision of Hyland J in Brady v. Byrne [2021] IEHC 778.

4. In circumstances where the defendant emailed the plaintiff prior to the expiry of the Personal Injuries Summons to accept service, that the failure to then effect service amounted to inadvertence which caselaw clearly defines as not amounting to special circumstances.

5. Although the plaintiff may argue that the cumulative effect of all these matters was sufficient to constitute special circumstances justifying renewal of the summons, it was submitted that the cumulative effect was only the sum of its parts, and those parts did not stand up to individual scrutiny. The defendant submitted that if none of the points could constitute a special circumstance justifying renewal on their own, their cumulative effect could not justify renewal either, by way of effectively arguing that if the parts of the argument were weak individually, the cumulative effect argument fell away.

6. The defendant would be prevented from raising the Statute of Limitations in its defence if the plaintiff was successful in having its summons renewed. Counsel submitted that the Statute must be available for both sides in the litigation to plead, relying on the judgment of Faherty J in Chandler v. Minister for Defence [2022] IECA 132 in that regard.

Submissions in Favour of Renewal

The plaintiff’s key arguments in order to uphold the renewal were fivefold:

1. The critical factor in this case was the mere 10 days between the lapse of the time limit for service of the summons within time, and the filing of the ex parte docket seeking its renewal. The plaintiff argued that that time must be considered de minimis, and the averments in the affidavits of the plaintiff’s solicitor should be considered in that light.

2. The decision of Brereton v National Maternity Hospital [2020] IEHC 172 where Hyland J observed a distinction between extreme delay and moderate delay, indicating that much shorter periods of delay are treated differently in these applications, favouring renewal rather than refusal.

3. The defendant had failed to adduce sufficient evidence of any actual prejudice arising from the renewal.

4. The plaintiff conceded that, generally, factors such as the internal file allocations, sick leave and maternity leave would not amount to special circumstances in cases of extreme delay prior to renewal, but where the renewal was made 10 days after the expiration then it was sufficient to establish special circumstances.

5. In relation to the cumulative effect of the circumstances, it was submitted that there appeared to be some divergence in the approaches taken by the Court of Appeal. It was submitted that

Haughton J in Murphy v HSE [2020] IECA 3 had indicated that the balance of justice should be considered with the special circumstances, considering all such matters as a whole, in reaching a decision. It was submitted that Noonan J in the case of Nolan v. Board of Management of St. Mary’s Diocesan School [2022] IECA 10 suggested that there must exist some special circumstances to justify renewal, before the court embarks on an analysis of the balance of justice. The plaintiff submitted that the approach of Haughton J ought to be preferred in considering the special circumstances and the balance of justice, cumulatively, as one analysis to arrive at a decision, especially in this case where the very short period of delay was justified and weighed the balance of justice in favour of a renewal.

Application of Special Circumstances Test

In its conclusion where it upheld the renewal, the High Court held the following:

1. The de minimis delay must be considered in these applications, based on the decision of Brereton in which Hyland J distinguished moderate delay and extreme delay. In Brereton, the court held that a 10-week delay was short in the context of a 12-month period to serve the Summons, therefore 10 days is to be considered de minimis

2. The correct approach to be taken when analysing the special circumstances is to consider the special circumstances in light of the balance of justice between the parties, as one point of analysis, as rehearsed by Haughton J in Murphy

3. Absences resulting from sick leave can amount to special circumstances in circumstances where 133 staff days were lost in the plaintiff’s solicitor’s firm due to illness between 1 May 2021 and 31 December 2021. However, the court did note that retirement leave and maternity leave are foreseeable but that ultimately, in conjunction with absences due to COVID-19 and other illnesses, the absences combined constituted special circumstances.

4. The failure to serve the Summons in this instance was not mere inadvertence on the part of the solicitor, it was inadvertence as a result of a storm of factors which occurred both within the firm and in the country at large at that time and the court is entitled to excuse inadvertence that resulted from such factors. Barr J did reiterate that inadvertence alone will not amount to special circumstances, but there may be reasons which excuse inadvertence, thereby rendering it a special circumstance.

5. Due regard is to be given to how quickly one acts in seeking to renew the Summons as per Hyland J in Brereton

6. The defendant was on clear notice of the claim from November 2020 on foot of a PIAB authorisation which would have been sent to them and the defendant was informed of the proceedings when the plaintiff’s solicitor emailed them to inquire if they had authority to accept proceedings. Therefore, the defendant knew the proceedings were in being and did not suffer any prejudice arising from the late service.

7. The High Court held that in circumstances where 37 other similar claims were instituted as against the defendant, which does not in itself relieve the plaintiff of their obligation to serve the Summons on time, that ultimately the defendant was on clear notice of at least the broad nature of the claim being made against it, in conjunction with the emails which were sent as well.

8. The 10-day delay does not appear to cause any prejudice to the defendant and the defendant failed to point to any specific prejudice due to the 10-day delay. The High Court was satisfied that the defendant’s argument that it would be in a much stronger position to plead the Statute of Limitations were the Summons not renewed was a factor which ought to favour renewal as the plaintiff would suffer enormous hardship if her Summons was not renewed, as it would then become statute-barred.

9. The High Court held that although the circumstances in this case would not amount to special circumstances justifying a much longer period of delay in another action, they were sufficient to justify a renewal wherein the delay was merely 10 days and where the defendant will suffer no material prejudice in its defence of the claim.

10. The High Court stated that its conclusion was based upon the cumulative effect of the plaintiff’s solicitors’ operational issues, the absence of any prejudice on the part of the defendant and the short delay in seeking a renewal.

The High Court decision is of note as it elaborates and draws on pre-existing principles in order to illustrate what amounts to special circumstances. Of note, it appears that a defendant will not be able to establish prejudice simply by way of arguing the Statute of Limitations; it would appear that ‘specific prejudice’ or actual prejudice is necessary in order to resist a renewal. The natural accrual argument as advanced by the defendant, in light of the égalité des armes which is brought about through the Statute of Limitations, appears to have not been accepted by the Court, and actual prejudice is now the requirement. It would also appear that the court will give regard to the delay in seeking to renew a Summons which indicates that the failure to serve the Summons within the 12-month period is not assessed within the 12 months but extends until the point of renewal. The judgment provides some helpful clarification on the circumstances surrounding the renewal of a Personal Injuries Summons. It remains that the key question to ask when assessing a renewed summons is whether there are in fact “special circumstances” which justify the renewal? In this judgment the High Court upheld the renewal on the basis that there were special circumstances to justify the renewal. However, due regard is to be given to the facts of this case, where inter partes correspondence was engaged with on both sides as establishing notice and the PIAB authorisation gave rise to a reasonable apprehension of proceedings.