The Plaintiff, a chartered accountant, claimed damages for defamation, as well as various declarations alleging that his rights were breached under the Data Protection Act 2018 and the General Data Protection Regulation, as a result of certain alleged acts of the Defendant.

As the Defendant is based in the UK, the Plaintiff sought leave of the Court to serve the proceedings out of the jurisdiction, pursuant to Order 11 Rule 1(f) of the Rules, on the basis that the action was founded on a tort committed within this jurisdiction. 

Following an ex parte application in February 2023, the Court ordered that "… the intended plaintiff be at liberty to serve Notice of Plenary Summons in the within proceedings on the intended defendant…" (emphasis added) (the "Ex Parte Order")

The wording of the Ex Parte Order is in keeping with the wording of Order 11 of the Rules which stipulates that service out of the jurisdiction is carried out by serving a notice of the summons, rather than the summons itself. However, despite this, the Plaintiff proceeded to serve the Plenary Summons itself and the Defendant subsequently issued a motion pursuant to Order 12 r. 26 of the Rules, to set aside service of the proceedings.

The Plaintiff accepted that the Plenary Summons itself (as opposed to notice of the summons) had been served, noting that this was an oversight. However, he argued that the oversight was not enough to amount to grounds to set aside service of the proceedings and that the setting aside of the Plenary Summons would seriously prejudice him, as the Plenary Summons had since expired. Accordingly, he was at risk that another application to renew the summons might not succeed. He also argued that service should be deemed good as the Defendant was clearly aware of the proceedings and had therefore suffered no prejudice.

Despite these arguments, the Court set aside the service of proceedings as a result of the Plaintiff's non-compliance with the Ex Parte Order and the Rules. In making his decision, the Judge noted that:

"I am struck by the mandatory tone of the rule. I am also struck by the fact that the [Ex Parte Order] specified how the proceedings should be served. Therefore, not only were they served contrary to the manner set out in the Rules, but they were also served in a manner which was contrary to the court order."

The Judge went on to note that:

"Court orders must have priority and precedence. They are a direction of court as to how parties must act on pain of sanction. Therefore, it seems to me that while the issue of a breach of the rules is somewhat procedural and should not be restrictive in the manner that Barniville J. alluded to, the breach of a court order is not"

This judgment serves as a salutary reminder that even a procedural oversight which might be considered to be non-prejudicial, still must be complied with by a litigant and failure to do so can have serious repercussions for the defaulting party. The Plaintiff must now take steps (and incur the costs) of bringing an application to renew the summons before it seeks a further order to serve the Defendant outside of the jurisdiction.

[1] Peter McDonnell v The Association of Chartered Certified Accountants [2025] IEHC 71