IEHC 94 — IEHC 94 — High Court

THE HIGH COURT

[2026] IEHC 94

Record No. 2025/287CA

BETWEEN

ARTUR PISARSKI

PLAINTIFF/RESPONDENT

AND

KEPAK CORK UNLIMITED COMPANY

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Barr delivered electronically on the 23rd day of

February 2026.

Introduction.

1. This is an appeal by the defendant from a refusal in the Circuit Court to set aside

the renewal of the personal injury summons in this case. 2

2. The plaintiff's accident occurred on 25 October 2018. His personal injury

summons was issued on 4 August 2021. It was never served by the plaintiff's former

solicitor.

3. The plaintiff's present solicitor obtained an order renewing the summons for

three months on 15 July 2025. The renewed summons was served on the defendant on

the following day.

4. The plaintiff states that he thought that his proceedings were being progressed

by his former solicitor in the usual way. The plaintiff's former solicitor has stated that

he made a decision not to serve the summons because, having taken the advice of

counsel on the merits of the case, he had formed the opinion that to serve the summons

and embark on litigation, would only serve to expose the plaintiff to the risk of an order

for costs against him because the case was very weak on liability and was very modest

in terms of quantum.

5. The net issue for determination on this appeal is whether the existence of a belief

on the part of the plaintiff that his action was being progressed and the deliberate

decision taken by his former solicitor not to serve the summons, constitute special

circumstances that justified renewing the summons three years and eleven months after

it had issued.

Chronology of Relevant Dates.

6. As already noted, the plaintiff's accident occurred on 25 October 2018. On 18

December 2018, a report was furnished by Mr. Mark Dolan, Consultant Orthopaedic

Surgeon, in relation to the plaintiff's injuries. The plaintiff had an MRI taken of his

lower back area on 11 January 2019. 3

7. On 10 May 2019, the plaintiff attended with his former solicitor. He gave

instructions in relation to his accident and instructed him to make a claim on his

behalf. On 20 May 2019, the plaintiff's former solicitor obtained a copy of the plaintiff's

medical records. On 29 May 2019, a report was obtained by the former solicitor from

the plaintiff's GP, Dr. Burke. On 31 May 2019, an email was sent by the former solicitor

to the plaintiff asking for instructions to lodge a claim on his behalf with the Injuries

Board (as it was then known).

8. On 15 August 2019, the plaintiff's former solicitor repeated his request seeking

instructions to lodge a claim with the Injuries Board. By email dated 20 August 2019,

it appears that the plaintiff's niece relayed instructions from the plaintiff. This email is

in Polish, so the court does not know its contents. However, the court presumes that it

instructed the plaintiff's former solicitor to proceed with lodgement of a claim on his

behalf with the Injuries Board.

9. On 28 June 2020, the plaintiff's niece sent an email, this time in English, seeking

advice from the plaintiff's former solicitor as to what he should do in circumstances

where his doctor had refused to give him a further sick certificate for work.

10. On 17 August 2020, there is a memo of a telephone conversation held between

the solicitor and the plaintiff's niece. The memo records the plaintiff's niece as having

informed the plaintiff's former solicitor that her uncle had returned from Scotland,

where he had been visiting his daughter following the death of his ex-wife. The solicitor

informed her about the procedure for lodging a claim. She wanted to make an

appointment for the plaintiff to consult with the solicitor. However, he told her that he

needed to try and deal with as much of the claim over the phone as was possible. He

said that they were trying to limit the amount of time that people spent in the office 4

(presumably due to Covid-19). The niece stated that she would talk to her uncle and

revert to the solicitor.

11. On the same date, the plaintiff's former solicitor sent an email to the plaintiff

attaching a copy of the medical report from Dr. Burke dated 29 May 2019. The plaintiff

was asked to confirm that he was satisfied with the content of the medical report. He

was further instructed to ensure that he returned to see his GP at that time, for the

purpose of updating the medical report. There is a memo of a telephone conversation

between the plaintiff's former solicitor and the plaintiff’s niece on 21 August 2020,

wherein she is noted as stating that the plaintiff was happy with the contents of the

medical report that had been furnished to him.

12. On 1 September 2020, a claim was submitted to the Injuries Board on the

plaintiff's behalf. The defendant declined to have the Injuries Board carry out an

assessment in the case. On 8 February 2021, an authorisation issued from the Injuries

Board.

13. On 27 July 2021, counsel returned a draft personal injury summons to the

plaintiff's former solicitor. In his covering letter, he advised that liability in the case was

weak. He stated that it would be necessary to obtain an engineer’s report before a

definitive opinion could be given on liability. He also noted that the medical reports

disclosed that the injury was not as serious as the plaintiff seemed to think.

14. On 4 August 2021, a personal injury summons was issued in the Circuit

Court. This summons was never served by the plaintiff's former solicitor.

15. It is not clear if anything happened thereafter. However, in October 2024, the

plaintiff and his former solicitor had a consultation, wherein it appears that the

difficulties on liability and the concerns about the low value of the case were 5

discussed. The plaintiff appears to have been informed that the personal injury

summons had not been served on the defendant.

16. On 10 January 2025, the plaintiff consulted his current solicitor.

17. On 12 January 2025 the plaintiff sent an email to his former solicitor enquiring

as to what stage the case had reached at that time.

18. By letter dated 13 January 2025, the plaintiff's former solicitor sent a detailed

response. In that letter he explained that he did not serve the summons because he felt

that the case was very weak and that to embark on litigation would only have exposed

the plaintiff to an adverse costs order, as he was not likely to win the action.

19. On 4 April 2025, the plaintiff's current solicitor purported to serve the summons

on the defendant. This was objected to by the defendant, which pointed out that the

summons has lapsed and had not been renewed.

20. On 15 July 2025, an ex parte docket was lodged seeking renewal of the

summons. This application was moved before the Circuit Court on that date. It was

based on a grounding affidavit sworn by the plaintiff on 22 May 2025. The application

to renew the summons was successful. The relevant part of the order of the Circuit

Court is as follows:

“Liberty to the plaintiffs to renew the personal injury summons as requested on

ex parte dated 4 June 2025, for a period of three months on the grounds that

there was confusion between the plaintiff and his solicitor. The plaintiff was of

the understanding that the solicitor would progress the proceedings and serve

same in a timely way. The solicitors took a different view in relation to the

plaintiff's interests and perhaps acted on the misapprehension that he was

entitled not to serve the proceedings.” 6

21. On 16 July 2025, the renewed personal injury summons was served on the

defendant.

22. On 4 September 2025, the defendant issued its motion to set aside renewal of

the summons. That application was heard before the Circuit Court on 13 November

2025. The defendant's application to set aside the renewal of the summons was

refused. On 20 November 2025, the defendant lodged a notice of appeal against that

decision.

The Law.

23. The principles that should be applied by a court when considering whether to

renew the summons have been set down by the Supreme Court in Power v CJSC Indigo

Tajikistan & Ors. [2025] IESC 55.

24. Delivering the unanimous judgment of the Supreme Court, Woulfe J., stated

that the so-called two-step test or "gateway test" that had been applied up to then,

whereby an applicant would have to establish special circumstances explaining why the

summons had not been served within time and why the application to renew the

summons had not been made earlier, and then establish that the interests of justice were

in favour of the summons being renewed; was not the correct test. The Supreme Court

stated that the correct test was a single test whereby the court should ask whether there

were special circumstances which justified renewal of the summons taking into account

all the circumstances of the case.

25. Woulfe J. set out the relevant test in the following way at para. 95 of his

judgment: 7

“I am broadly in agreement with the above statements from the Court of Appeal

authorities, and might simply add the following comments. Firstly, I endorse the

statement of Butler J. in Kearns that the test for renewal of a summons is not a

two-stage process, and is certainly not a process of which difficult tests apply

at each stage. It seems to me that O. 8, r. 1(4) provides for one test or one

question: are there special circumstances which justify an extension? While it

is clear that a plaintiff must identify special circumstances, in my opinion it is

probably not helpful to speak of a “gateway requirement”, at least in the sense

of some form of separate requirement that a party seeking renewal must

establish that special circumstances exist taken alone. Instead, the Court should

view the special circumstances put forward in conjunction with the balance of

the test in O. 8, r. 1(4) as a single overall assessment as to whether it is in the

interests of justice that the summons be renewed. In other words, do those

special circumstances justify an extension, having regard to all other

background factors such as the interests of justice, prejudice to either party and

the balance of hardship?”

26. In Maguire v PSW Sales and Logistics Limited [2026] IEHC 81 this Court dealt

with the issue that arises where a solicitor acts in a way that is contrary to the interests

of his client. In this regard the court stated as follows:

“63. When a party retains a solicitor, the solicitor acts on his behalf as his

agent. If the solicitor takes a step in the proceedings, that step is deemed to have

been taken by and on behalf of the plaintiff. The plaintiff gets the benefit of the

action taken on his behalf by his agent. Equally, when the solicitor, in his

capacity as agent for the plaintiff, omits to take a step, that omission is equally 8

attributable to the plaintiff, even though he may have been entirely personally

blameless as regards the particular omission to act.

64. It boils down to fundamental principles of agency law. The plaintiff, qua

principal, cannot approbate the actions of a solicitor which are to his benefit;

while at the same time reprobating those actions of his solicitor that are not in

his interests.

65. Another way of looking at it is that if a solicitor fails to take necessary

steps and both the plaintiff and the defendant have been blameless in this

regard, it is fair and reasonable that the loss or adverse consequence of such

inaction on the part of the solicitor should fall on the plaintiff rather than on the

defendant, because if the solicitor acted in breach of his instructions or

authority, or acted fraudulently or negligently, the plaintiff will have an

alternative avenue for redress if as a consequence of those actions or inaction,

his chose in action in the form of his action against the defendant, is lost.”

27. In the Maguire case, the court went on to hold that if a solicitor acts outside his

instructions, or in a manner that is adverse to the interests of his client, the client cannot

use that as a special circumstance justifying the delay in bringing the application to

renew the summons. The court held that to hold otherwise, would be to penalise the

defendant for actions that were entirely outside his control. The court noted that while

the plaintiff may be regarded as being the innocent victim of the wrongdoing of his

solicitor, he would more than likely have an alternative avenue through which to seek

redress in respect of any loss that he may suffer in consequence thereof. 9

Discussion and Conclusions.

28. This is an unusual case in that often it is pleaded that special circumstances exist

because the solicitor for one reason or another through inadvertence missed the deadline

for serving the summons. That is not the excuse given in this case. Here the plaintiff's

former solicitor has candidly stated that he made a deliberate decision not to serve the

summons.

29. This is clearly stated in his letter of 13 January 2025, which he sent to the

plaintiff. He stated as follows in that letter:

“As explained, your claim has not been progressed because of the strong

probability that you would lose the case. You would have ended up spending a

lot of money with little prospect of success. Also, it appears that you did not

suffer a fracture of your coccyx, but – at most – a soft tissue injury. So, you

would have spent a lot of money financing a case that – even if you somehow

against the odds managed to succeed to some extent – would at best have yielded

a very modest amount of compensation. In a nutshell, it was not worth it from

your point of view. You would have lost the case and ended up with a large costs

bill.”

30. The plaintiff's former solicitor went on in that letter to give a history of his

interaction with the plaintiff. He also outlined the nature of the medical evidence that

had been obtained up to that time. At the end of the letter, he returned to the reasons

why he had not progressed the plaintiff's case against the defendant:

“We did not progress the case or do any more work on it because, in our view,

it was not worth it. You would end up having spent a lot of money paying for a 10

case that was not going to succeed, and for which the amount of compensation

would be small. In our view, you would lose the case and end up with a big bill.

We had one year from August 2021 to serve the proceedings on the other side. If

we had done that, however, legal costs would begin to run on the other side,

and we believe that you would have been made liable for those costs.

To summarise: as regards the injury itself, the doctors did not support your

version. As regards how the accident happened, you would have lost the

case. Accordingly, we believe that we have made the correct decision not to

serve the proceedings and that we have saved you from being made liable for

significant costs.”

31. Thus, the position appears to be that the plaintiff at least gave firm instructions

to bring his case to the Injuries Board. When the defendant refused to permit them to

assess compensation, as they were entitled to do, the plaintiff's former solicitor took the

prudent step of issuing a personal injury summons on behalf of the plaintiff to "stop the

clock running" in terms of the Statute of Limitations.

32. Thereafter, he made the deliberate decision not to serve the summons for the

reasons given in his letter of 13 January 2025. He either had express or implied

instructions to take that decision; or he did not.

33. If he had instructions not to serve the summons, the plaintiff cannot now seek

to go back on that decision and have the summons renewed. If the plaintiff's former

solicitor did not have express or implied instructions to refrain from serving the

summons, that is an issue that will have to be decided in another forum.

34. What is clear is that any confusion or breach of retainer that there may have

been between the plaintiff and his former solicitor in this regard cannot be used to 11

justify an application to renew the summons some three years and eleven months after

it was issued; when the only reason that it had not been served in the interim, was

because the plaintiff's former solicitor had deliberately refrained from serving the

summons.

35. As was pointed out by this Court in Maguire v PSW Sales & Logistics [2026]

IEHC 81 the legal relationship between a plaintiff and his solicitor is governed by the

law of agency. In his dealings with the other party to the litigation, in this case the

defendant, the plaintiff gets the benefits of any steps taken by his solicitor in the course

of the litigation. Equally, he must bear the consequences of a failure by the solicitor to

take steps in the course of that litigation. This is because, insofar as the defendant is

concerned, the plaintiff cannot approbate and reprobate the actions of his solicitor at

one and the same time.

36. While a deliberate decision not to serve a summons is unusual, it is not

unique. A similar situation arose in Galvin v Sharif [2025] IEHC 680 where the

plaintiff's second solicitor, who had taken over the file when the first solicitor had not

served the summons, made a decision not to seek a renewal of the summons, as he felt

that there was very little prospect of such an application being successful.

37. When a third solicitor came on record on behalf of the plaintiff and made

application to renew the summons, Ferriter J. held that given the extraordinary

circumstances in that case, wherein the first solicitor had continually lied to the plaintiff

as to the steps taken to progress his action, it was held that the period of inactivity during

which the first solicitor had been lying to the plaintiff should not be counted as culpable

delay. However, Ferriter J. held that the subsequent period during which the file was

with the second solicitor, who had made the deliberate decision not to seek a renewal

of the summons, had to be seen as culpable delay that had to be taken into account when 12

considering whether it was just in all the circumstances to renew the summons. In the

circumstances of that case, he held that it was not appropriate to renew the summons.

38. This Court had to demur from the reasoning of Ferriter J as regards the

consequences of the actions of the first solicitor when giving its judgment in Maguire

v PSW Sales and Logistics. However, this Court agreed with the reasoning of Ferriter J

as regard the consequences of the deliberate inaction that there was on the part of the

second solicitor in that case.

39. In the present case, I hold that the deliberate decision on the part of the plaintiff's

former solicitor not to serve the summons and any confusion or misplaced belief that

there may have been on the part of the plaintiff that his action was being progressed in

the usual way, are not special circumstances that justify the renewal of the summons.

40. As far as the defendant in this case was concerned, it had heard nothing more

from the plaintiff after it had declined to allow the Injuries Board to carry out an

assessment in or about 2020. The defendant was not to blame for the fact that the

plaintiff's former solicitor decided not to serve the summons. It would be unreasonable

and unjust to renew the summons in July 2025 and expect the defendant to defend itself

in relation to an accident that had occurred in October 2018, when it had heard nothing

from the plaintiff since his claim had been released from the Injuries Board in 2020. I

hold that the defendant would suffer prejudice if it had to meet an action at this stage

concerning an accident which occurred over seven years ago.

41. Accordingly, the court will allow the defendant's appeal against the refusal to

set aside the renewal of the personal injury summons. The court will grant the relief

sought by the defendant in its original notice of motion dated 4 September 2025. The

defendant is entitled to an order setting aside the renewal of the summons on 15 July

2025. 13

Proposed Final Order.

42. Having regard to the findings made in this judgment, it is proposed that the final

order should provide for the following:

(a) Allow the appeal of the defendant against the order of the Circuit Court dated

13 November 2025;

(b) Grant the relief sought at paragraph 1 of the defendant's notice of motion

dated 4 September 2025, for an order setting aside the renewal of the summons.

43. As this judgment has been delivered electronically the parties shall have two

weeks within which to furnish brief written submissions of not more than 1000 words

on the terms of the final order and on costs and on any other matters that may arise.

44. The matter will be listed for mention at 10.30 hours on19 March 2026 for the

purpose of making final orders.