In April 2019, the High Court set aside the renewal of a personal injuries summons on the grounds that there was no good reason provided as to why the summons was renewed after a delay of nearly 3 years between the expiration of the summons and the bringing of the application to renew. We look at the reasoning of the Court in the case - MD V NMH 2014/1055P.

Background

In 2011, the plaintiff delivered her baby at the defendant hospital. A personal injuries summons was issued in January 2014 by the plaintiff’s first firm of solicitors. She claimed damages for injuries alleged to have arisen from the negligence of the defendant in the conduct of the delivery resulting in a third degree tear. The personal injuries summons was issued on a protective basis to protect the plaintiff’s position under the Statute of Limitations and without the support of expert reports. The summons was not served on the defendant within the required one year period and expired on 26 January 2015. In April 2016 the plaintiff’s case was taken over by a new firm of solicitors. In November 2017, an Order was made by the High Court renewing the summons for 6 months.

Renewal of a personal injuries summons

Once issued, a personal injuries summons remains valid for service for 12 months from the date of issue. If the personal injuries summons is not served within that 12 month period, it expires and must be renewed. The application to renew is an ex parte application, which must contain facts and information to satisfy the Court that reasonable efforts have been made to serve the defendant within the 12 months or that there is other “good reason” to renew the personal injuries summons. Once renewed, a summons will now remain in force for a further period of 3 months, but at the time of the Plaintiff’s application the period was 6 months. A recent amendment to Order 8 of the Rules of the Superior Court, which came into effect at the beginning of 2019, reduces the standard 6 month renewal period to 3 months.

While the plaintiff was initially successful in having the summons renewed, the defendant brought an application to have that renewal set aside.

Application to set aside the renewal

An application under Order 8 Rule 2 of the Rules of the Superior Courts was brought by the defendant challenging the renewal of the personal injuries summons. This motion to set aside the renewal Order was founded on the basis that the plaintiff had not put forward any reason why the summons was not served within one year after it issued and there was no good reason provided in seeking to have it renewed.

Case law has established that the Court must consider the following before making its determination:

1. What is the reason for the failure to serve the summons during the valid time
2. Does this reason justify the failure to serve and the application to renew, and
3. Whether it is in the interests of justice to renew

The onus is on the plaintiff to demonstrate that there was a “good reason” for the failure to serve the personal injuries summons. If the reason is considered a good one, then, and only then, will the Court go on to consider whether it is in the interests of justice to renew the summons.

Neither in the affidavit of the plaintiff’s solicitor which grounded the application to renew the summons nor in a subsequent replying affidavit was there a specific reason or explanation provided for the failure to serve the summons during its currency. Information was provided on delays in obtaining expert medical reports from the time the plaintiff’s current solicitors took over the file. No explanation was provided on the time between the issue of the summons in January 2014 and when the plaintiff instructed her present solicitors in April 2016. It is important for any solicitor to provide accurate and sufficient detail to the Court when submitting that there is good reason to justify the renewal of a summons.

High Court Decision

Although there was no written judgement, in making her ruling Judge O’Regan stated that Order 8 Rule 1 requires a good reason to be provided to allow for the renewal of a summons and that in this case a good reason was not provided to explain the delay.

Judge O’Regan stated that the balance of justice and good reason are two separate issues. If there is good reason then, and only then, do you look at the balance of justice. The interests of justice are the second limb once good reason is established.

The Court set aside the Order granting the renewal of the personal injuries summons with the result that the summons had expired and the plaintiff was Statute barred from issuing any fresh proceedings and could not pursue her claim.

Comment

It is imperative when making an application to renew a personal injuries summons to:

• Show that either reasonable efforts have been made to serve the defendant within the 12 months, or
• Provide accurate and sufficient detail to the Court that there is a “good reason” to justify the renewal of the personal injuries summons.

Lawyers should also be aware of the responsibility to progress a case within a reasonable timeframe. Lawyers should also be mindful of the recent amendment to Order 8 of the Rules of the Superior Court, which came into effect on 11 January 2019, which reduces the standard 6 month renewal period to 3 months from the date of the renewal application.

For more information on successfully defending personal injuries claims, contact a member of our Healthcare & Medical team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.