McGuinness v Sharif and Hermitage Medical Clinic trading as Hermitage Clinic Limited [2022] IEHC 438

In this case the High Court considered an application to set aside an order renewing a Personal Injury Summons pursuant to Order 8, Rule 4 of the Rules of the Superior Courts. The Court noted that Order 8 had been amended in 2018 which amended the test applicable to an application for renewal of the Summons from "good reason" to "special circumstances". The Court also noted that “special circumstances” was a higher bar for a plaintiff to surmount than good reason.

The Court held that it was vital that, when an order was made renewing the Summons on an ex parte basis, particularly where a significant time period had elapsed since the expiry of the Summons, solicitors serving the renewed Summons should respond fully and expeditiously to any requests for information about the circumstances of the renewal. Failure to do so would delay any application to set aside the renewal, which in turn will have knock-on effects on the progress of the case if the application to set aside is not successful. The Court criticised the Plaintiff’s solicitor for failing to provide the information sought in respect of the renewal of the Summons in a timely manner and further for only providing that information in an “incremental fashion”. The Court viewed these failures as directly relevant to the question of costs.

The Court reviewed the various circumstances in the case and held that there were highly unusual circumstances justifying the failure to serve the Summons within the original twelve month period, as, unusually, there had been significant confusion in identifying the solicitor on record for the Plaintiff and, for the firm which ultimately took over carriage of the proceedings, the procurement of the Plaintiff’s file – all of which caused lengthy delays to the progression of the proceedings. In those highly unusual circumstances, the Court noted that there were special circumstances explaining the delays involved.

When considering the balance of justice, the Court noted that there was no real detriment to the Defendants, as was fairly admitted by them, since the records were likely to determine the case as opposed to any individual recollection of a doctor. On the other hand, the Court noted that there was likely to be very significant prejudice to the Plaintiff, whose claim would almost certainly be statute barred if the application to renew the Summons was refused.

Neither the absence of prejudice nor a claim of being statue barred could necessarily tilt the balance of justice in favour of a Summons been renewed. However, the Court noted that there was one factor insofar as the Second Named Defendant was concerned that rendered it unjust to set aside the renewal of the Summons. The Court held that there was significant delay on the part of the Second Named Defendant in bringing the application to set aside.

The Court stated that, where a decision was made to seek to set aside the renewal of the Summons, this must be done quickly. Any delay in bringing the application would contribute to delay in getting the case on. The Court held that it was incumbent upon both plaintiffs and defendants to move matters along with expedition at every step in the life of the proceedings, particularly where actions have a short limitation period such as in medical negligence proceedings. The Court held that the balance of justice still favoured a renewal of the Summons in the particular circumstances of the case, including the absence of any specific prejudice to the Defendants occasioned by the delay. In the circumstances, the Court held that the Plaintiff had established special circumstances as required by Order 8 of the Rules of the Superior Courts.