In this recent medical negligence case,[1] the defendants challenged a renewal order granted to the plaintiff extending the time for service of an expired Personal Injuries Summons. The High Court considered whether special circumstances existed to justify the renewal of the summons and whether the balance of justice favoured upholding or setting aside the renewal order.

Background

This case involved a retired 63-year-old carpenter who sued his surgeon and a hospital for alleged medical negligence relating to treatment of his left hip including surgery performed in 2015. These proceedings were commenced by way of summons which issued in early 2017, just inside the two-year limitation period for commencing personal injury claims.

The summons was not served within the one-year period required by the Court rules, specifically Order 8[2], and the summons expired in January 2018. An application to renew the expired Summons was not made by the plaintiff until almost two years later on 13 January 2020.

Timeline

Court’s decision

The Court rejected the plaintiff’s argument that the surgeon delayed in bringing his motion to set aside the renewal order. Indeed, the Court noted the ‘drip feed’ fashion in which the plaintiff replied to the queries raised by the surgeon as to the basis for the extension of time. The Court’s view was that the failure by the plaintiff to respond in a timely and satisfactory manner to the queries raised by the surgeon caused most of the delay and could have legal costs implications. The Court stated that a party seeking renewal must respond fully and expeditiously to requests for information concerning the circumstances of the renewal.

Special circumstances

Of note, the test for renewing a summons under Order 8 was amended in 2019. The bar for renewing a summons was heightened from having to show good reason to showing special circumstances. The Court had to consider whether special circumstances existed to justify the renewal and followed the lead case of Murphy v HSE[3]. The Court focused on the following time periods:

• February 2018 – June 2018

Following the expiry of the summons in January 2018, no steps were taken to advance the proceedings. The Court found that there were special circumstances explaining this delay as it transpired that the solicitor representing the plaintiff did not have a practising certificate and there was significant confusion as to which solicitor was actually representing the plaintiff.

• June 2018 – December 2019

By June 2018, the plaintiff had engaged new solicitors. The Court was of the view that the new solicitors should have been aware there would be delays in obtaining the file from the former solicitor. In these circumstances, the Court was critical that the new solicitors did not seek expert medical reports promptly during the period September to December 2018, even without access to the plaintiff’s file. Moving with expedition was vital, especially where there were prior delays, and the in view of the fact that the summons was issued very close to the expiry of the limitation period.

The Court noted that the ‘special circumstances’ test for renewal under Order 8 only came into force in January 2019. As a result, the 2018 delay was not fatal to the renewal application. The Court cautioned that had the ‘special circumstances’ test been in force at that time, it may not have been satisfied.

From January 2019 onwards, the new solicitors instructed two experts in different disciplines, obtained the file from the former solicitor and obtained outstanding medical records. One expert report arrived in May 2019, but the second expert report did not arrive until December 2019, despite several reminders. The renewal application was then made promptly in January 2020.

The Court decided that the new solicitors had shown reasonable promptness in progressing the case and in seeking the medical expert opinion that was reasonably required to advise on and prosecute the claim, such that the special circumstances test was satisfied

Balance of justice

The Court decided that the delays did not cause the surgeon or hospital any real detriment as the case would likely be determined by the medical records, as opposed to the recollection of any individual doctor. On the other hand, if the plaintiff’s application to renew was denied, significant prejudice would be suffered as the claim would become statute barred.

In weighing up the balance of justice, the Court also considered the delay of 16 months on the part of the hospital in serving its application to set aside the renewal order until 24 May 2021. No explanation was given for the delay. The Court held that it would be unfair to set aside the renewal of a summons where a defendant had themselves delayed.

The Court upheld the renewal order as it found that special circumstances existed. The balance of justice also favoured renewal as the hospital delayed in bringing its application to set aside and the defendants would not suffer any specific prejudice by permitting the renewal.

Conclusion

This case highlights the factors that the courts will consider when deciding if special circumstances exist under Order 8 to justify the renewal of a Personal Injuries Summons.

It also shows the factors that a court will consider when deciding where the balance of justice lies between the parties where a renewal is challenged. In particular, the court will look at any potential prejudice faced by the parties. It is also notable that a defendant will not be able to rely on delay to set aside a renewal when they themselves have delayed and not acted promptly in bringing their application.

The key takeaway message is that it is incumbent upon both plaintiffs and defendants to move with expedition at every step in the life of any proceedings.

For more information, contact a member of our Medical Law team.

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

[1] McGuinness v Sharif & Anor, High Court, Hyland J, 20 June 2022, [2022] IEHC 438

[2] Order 8, rule 4 of the Rules of the Superior Courts (as amended by S.I. No. 482/2018)

[3] [2021] IECA 3