IEHC 438 — IEHC 438 — High Court

THE HIGH COURT

[2026] IEHC 438

Record No. 2023/577P

BETWEEN:

DOLORES BROUGHAN

PLAINTIFF

AND

BON SECOURS HEALTH SYSTEM COMPANY LIMITED BY GUARANTEE

AND JOHN RICE

DEFENDANTS

JUDGMENT of Ms. Justice Emily Egan delivered on the 18th day of June, 2026

1. This is the defendants' application to set aside the order dated 30 July 2025 renewing

the Personal Injuries Summons. The issue arising in this application is the extent to which

a plaintiff may await the receipt of what is essentially a condition and prognosis report

before applying to renew an expired Personal Injuries Summons. 2

Chronology

2. The following is a brief summary of the relevant dates and events in the history of these

proceedings for the purposes of this application:

(a) 10 February 2023, the Personal Injuries Summons was issued;

(b) 23 January 2024, the plaintiff sent a letter to a psychiatrist seeking a report;

(c) 13 February 2024, the Personal Injuries Summons was purportedly served by the

solicitors for the plaintiff;

(d) 14 February 2024, a letter was sent by the solicitors for the defendants noting the expiry

of the summons and querying why the expired summons had been served;

(e) 21 March 2024, 17 July 2024 and 6 January 2025, the solicitors for the defendants sent

letters following up on the position in relation to the summons;

(f) 14 October 2024, the plaintiff sends a follow-up reminder to the psychiatrist requesting

an appointment and asking them to revert as a matter of urgency;

(g) 24 October 2024, the psychiatrist responds stating she never received the initial referral

but that she would attempt to schedule an appointment as soon as possible;

(h) 5 December 2024, the plaintiff corresponds with the psychiatrist about scheduling an

appointment for 6 March 2025;

(i) 10 April 2025, expert report received from Dr Eimear McGuire, Consultant Psychiatrist;

(j) 12 June 2025, the psychiatrist’s report was forwarded to the orthopaedic expert so that

he could finalise his opinion;

(k) 8 July 2025, the plaintiff’s solicitors delivered particulars of negligence and breach of

duty, including particulars of injury;

(l) 9 July 2025, the defendants’ solicitors protested the non-response to previous letters and

the delivery of particulars in light of the expiry of the summons; 3

(m) 9 July 2025, the plaintiff’s solicitors responded outlining the reason for the delay and

confirming that they would make an application to renew the summons;

(n) 30 July 2025, the High Court ordered renewal of the Personal Injuries Summons on the

basis of special circumstances;

(o) 31 July 2025, the plaintiff’s solicitors serve the High Court’s Order renewing the

Summons;

(p) 27 August 2025, letter sent by the solicitors for the defendants requesting the grounding

affidavit to the application and highlighting errors in the order of renewal;

(q) 1 September 2025, service of renewed Personal Injuries Summons;

(r) 19 November 2025, defendants issue a motion seeking an order pursuant to Order 8 Rule

2 of the Rules of the Superior Courts setting aside the order of 30 July 2025 renewing

the Personal Injuries Summons;

(s) 2 March 2026, replying affidavit of the plaintiff's solicitor;

(t) 24 March 2026, defendants’ written legal submissions;

(u) 16 April 2026, plaintiff’s written legal submissions; and

(v) May 2026 supplemental affidavit of the plaintiff's solicitor.

3. The following features of this chronology bear emphasis.

Letter of claim

4. The plaintiff’s letter of claim of 26 January 2023 noted that the second defendant,

orthopaedic surgeon, had performed knee replacement surgery on the plaintiff at the Bon

Secours Hospital Kerry on 17 February 2021, whereby a foreign object was left in Ms

Broughan's knee. It put the defendants on notice of an intended claim for reliefs including

damages arising from negligence and breach of duty. The hospital was asked to confirm that

liability was not in issue and to confirm the correct title and registered address for legal 4

proceedings. From this time, therefore, the defendants were on notice of an intended claim,

but only that the general nature of the claim concerned the retention of a foreign body.

Further pleadings

5. The Personal Injuries Summons issued on 10 February 2023 and served after its expiry

on 13 February 2024, is acknowledged to be a holding summons. It does not provide any

substantive information over and above the letter of claim. Thus, it is pleaded that a foreign

body was left inside the plaintiff’s lower limb at the time of surgery due to negligence and

breach of duty and that this has caused her significant pain and suffering, anxiety, and

distress. The Personal Injuries Summons includes no particulars of negligence or of injuries,

loss and damage.

6. After receipt of a report from an expert orthopaedic surgeon from Mr Winston Kim,

knee specialist, on 1 June 2023, particulars of negligence and breach of duty were furnished

on 8 July 2025. These particulars, which are evidently based upon that expert report, plead

that the defendants were negligent in falling below a reasonable standard of care and

departing from general and approved practice, in leaving an intramedullary rod behind

during the plaintiff's right total knee replacement and failing to retrieve this intramedullary

rod. It is also pleaded that this has left the plaintiff with retained metalwork in circumstances

where re-operation to retrieve it is not advisable due to the risks associated with major

surgery such as infection, thrombosis, medical complications and post-operative pain. It is

pleaded that the defendants have caused an increase in the risk of complications of revision

surgery of the knee replacement in the future and have thereby caused the plaintiff

significant and avoidable harm.

7. Particulars of injury, loss and damage, dated 8 July 2025, drafted on foot of the

psychiatric report of Dr McGuire dated 10 April 2025, plead that the plaintiff was recently 5

assessed by a consultant psychiatrist who noted symptoms of adjustment reaction, a

recognised psychiatric disorder, since she discovered the presence of a foreign body in her

leg post operatively. The particulars also plead a background history of psychological

difficulties of a major depressive disorder, traumatic bereavement and possible

psychological injury related to a serious back injury. It is pleaded that the plaintiff’s

symptoms were aggravated by pain and the feeling that she had not been listened to when

she expressed her fears to the treating consultant; that the plaintiff’s symptoms are

perpetuated by ongoing pain, disability and persistent social withdrawal; that the plaintiff

continues to describe physical symptoms impacting her functioning and independence and

that complete resolution of the plaintiff's psychological symptoms is unlikely while the acute

stressor presents. The particulars further detail the plaintiff's engagement with the mental

health service and the fact that she is on treatment with medication which is currently being

titrated.

Application to renew and order renewing summons

8. The plaintiff made an application to renew the summons by way of ex parte docket of

the 17 July 2025, grounded on an affidavit filed 23 July 2025. The affidavit, sworn by the

plaintiff's solicitor, avers to the background events comprising the allegation that a foreign

body was left inside the plaintiff's lower limb at the time of surgery and states that this is a

"never event".

9. The plaintiff’s solicitor avers that it was made clear when the summons was issued that

due to incomplete investigation and outstanding expert reporting, the plaintiff reserved the

right to provide further information in relation to the proceedings. It is averred that, as

certain reporting still remained outstanding, the summons was served a year later (by which

stage the summons had already just expired). 6

10. The affidavit continues that on 8 July 2025 further particulars were served as the

plaintiff had by then obtained all of the requisite supportive expert reporting from both an

orthopaedic surgeon and a psychiatrist (dated June 2023 and 10 April 2025) with

confirmation of both liability and causation respectively. The impression given by this

averment is that it was not until receipt of the second report in April 2025 that the plaintiff

was in a position to make out both liability and causation and thus to satisfy herself as to the

commission of the alleged tort.

11. The affidavit avers that on 9 July 2025, the plaintiff's solicitor received a letter from the

defendants’ solicitor stating that due to the lack of engagement on the part of the plaintiff

an appearance was not entered and that their file on the matter was closed. The affidavit

does not refer to the four intervening letters from Daniel Spring, solicitors for the

defendants, of 14 February 2024, 21 March 2024, 17 July 2024 and 6 January 2025 all

noting the expiry of the summons and enquiring regarding its renewal. The plaintiff’s

solicitor’s affidavit continues that a response was sent straight away to Daniel Spring

Solicitors advising that the proceedings were served on 13 February 2024, albeit that this

should have been by 9 February 2024, four days earlier, along with correspondence on a

without prejudice basis advising that the plaintiff was awaiting further expert reports and

would furnish particulars once these further reports were received. It is averred that

therefore the defendants were on notice of the claim.

12. The plaintiff’s solicitor continues that as the summons was served just outside the

requisite timeframe "through inadvertence on the plaintiff's part”, an application for

renewal was deemed necessary.

13. Finally, the affidavit avers that the balance of justice lies in favour of renewal and that

there is good reason for the request to renew. It is averred that no prejudice would arise to

the defendants as a result of the renewal but that if the summons is not renewed there would 7

be obvious prejudice to the plaintiff in that she would not be able to progress matters in

relation to the prosecution of her claim.

14. The order renewing the summons of 30 July 2025 states that the court was satisfied that

the special circumstances justifying the order extending the time for leave to renew the

Personal Injuries Summons were "in circumstances where the plaintiff encountered

difficulties obtaining expert reports."

The defendants’ application to set aside renewal of summons

15. On 19 November 2025 the defendants issued a motion seeking an order pursuant to

Order 8 Rule 2 of the Rules of the Superior Courts setting aside the order of the High Court

of 30 July 2025 renewing the Personal Injuries Summons. The grounding affidavit sets out

the chronology as above, notes that the plaintiff’s application to renew the summons,

acknowledges the service of an expired summons in error and suggests that a liability and

causation report was awaited up to the time of the application to renew.

16. The affidavit queries why, given that the plaintiff was in receipt of an expert opinion in

respect of the surgery itself in June 2023, same was not pleaded prior to the service of the

expired summons in February 2024 and why, indeed, the views of this expert were not

pleaded until the 8 July 2025 in the particulars of negligence and breach of duty. The

affidavit notes that the plaintiff's correspondence suggests that it was considered that a

psychiatric report was needed before the proceedings could be served but states that it is not

clear why this should be so and why the orthopaedic opinion already obtained was somehow

insufficient to prosecute the claim. In any event, the affidavit notes the duty of a plaintiff in

such circumstances to proceed with appropriate expedition to procure necessary expert

opinion and states that there is nothing in the renewal application to permit any analysis of

whether appropriate expedition was used. In particular, given the apparent delay in securing 8

psychiatric opinion the defendant queries why alternative psychiatric opinion was not

sought or what other steps were taken to expedite such opinion.

17. The affidavit observes that whilst the plaintiff claims that the defendants would not be

prejudiced by the renewal, same would in fact deprive the defendants of the benefit of the

statute of limitations in respect of a claim now only formally commenced four years after

the occurrence of the relevant events.

18. It is also averred that the delay in bringing forward the proceedings is prejudicial both

to the defendants' interests and to the public interest in the timely administration of justice.

The defendants dispute that this is a so-called “documents case” and notes that the surgeon

who performed the surgery will need to give oral evidence. The defendants plead they

cannot meaningfully investigate the claim at this remove.

The plaintiff’s replying affidavit

19. The plaintiff's solicitors replying affidavit sworn on 2 March 2026 first notes that the

defendants do not identify any misrepresentation, material non-disclosure or other defect

which would justify “the exceptional relief now sought”, being the setting aside of the

renewal of the proceedings. This clinical negligence action is of a complex nature, requiring

careful investigation and expert opinion in relation to liability, causation and injury,

including psychiatric sequelae. The summons was issued within the limitation period while

investigations and expert enquiries were ongoing. Thereafter, the summons was served four

days outside the period, due to inadvertence and not by design.

20. Under the heading "Expert evidence and timing”, the replying affidavit of the plaintiff's

solicitor rejects the defendants' assertion that reliance on the orthopaedic opinion ought to

have been sufficient to bring the matter forward. This, it is said, does not reflect the realities

of prosecuting a clinical negligence claim of this nature. Whilst the orthopaedic report 9

addressed aspects of the surgery and the plaintiff's physical outcome, it did not complete the

evidential picture necessary to responsibly advance the proceedings. The plaintiff continued

to experience psychological sequelae arising from the surgical outcome, and it was apparent

that a psychiatric opinion would be required in order to properly plead the nature and extent

of her injuries and to address issues of causation and damage.

21. It is averred that in circumstances where psychiatric injury formed an integral

component of the plaintiff's claim it would not have been appropriate to serve proceedings

or deliver full particulars in advance of such an opinion. To do so would have risked

advancing an incomplete or incoherent case, or alternatively, reserving core aspects of the

claim without evidential support.

22. The plaintiff's solicitor avers that the process of obtaining psychiatric opinion took

longer than anticipated due to factors outside the plaintiff’s control, including consultant

availability and waiting times. This echoes the same plea in the grounding affidavit to the

application to renew the summons. The plaintiff's solicitor avers that these matters are

neither unusual nor unforeseeable in medico-legal practice and do not reflect any lack of

diligence on the plaintiff's part. No further detail is provided of the relevant timings.

23. The psychiatric report was ultimately received on 10 April 2025. It is averred that as

soon as this report was to hand confirming the existence of psychiatric injury and its causal

relationship to the surgical events, the plaintiff moved promptly to advance the proceedings

delivering full particulars on 8 July 2025 and bringing the application to renew without

delay.

24. It is averred that the defendants were on notice of the claim from 26 January 2023,

when the letter of claim was sent. Objection is taken to the defendants' attempt to re-litigate

the exercise of the court’s prior discretion to renew the summons particularly in the absence

of any material error or non-disclosure. It is stated that loss of the limitation defence does 10

not amount to prejudice to outweigh the interests of justice. The plaintiff’s solicitor notes

that no evidence of prejudice is advanced such as that a witness is unavailable or that any

relevant documents have been lost. By contrast, the prejudice to the plaintiff if the order

renewing the summons is set aside will be profound as she will be deprived of any forum in

which to pursue a serious claim arising from surgical treatment notwithstanding that she

acted responsibly and in good faith.

The defendants’ written submissions in support of the application to set aside order

renewing the summons

25. The defendants submit that the letter of 26 January 2023 and the subsequent holding

Personal Injuries Summons provide no indication of the case other than the bare fact that a

foreign object was said to have been left in the plaintiff's knee following the index operation.

It was only in July 2025, more than four years after the surgery in question, and two years

after the plaintiff received the report relied upon, that particulars of negligence and breach

of duty were furnished to the defendants giving notice of the actual allegations of negligence

and breach of duty being made.

26. The defendants submit that even after the issuing of the motion to set aside the renewal,

the plaintiff has provided no meaningful detail of (1) why it was necessary to procure a

condition and prognosis report in relation to psychiatric injuries before renewing the

summons, (2) the alleged difficulties encountered in securing the evidence which she states

was required to ground the application for renewal or (3) as to compliance with the

obligations of expediency referred to in the relevant case law. Further, the defendants

observe that in circumstances where the basic two year limitation period has expired and a

protective summons has issued, the plaintiff must proceed with expedition if not alacrity in

seeking and obtaining the requisite medical opinion. 11

27. The defendants close by observing that it could reasonably have been expected that the

plaintiff would indicate when experts were first identified and contacted, when instructions

were accepted, what delays if any were communicated by such experts and whether

alternative experts were sought out, if so, what transpired on foot thereof. As no such details

have been provided, the defendants request that the renewal is set aside.

The plaintiff’s written submissions opposing the application to set aside order

renewing the summons

28. The plaintiff's written submissions submit that although an orthopaedic report was

obtained in June 2023, the plaintiff's clinical presentation had evolved to include significant

psychological sequelae. It therefore became necessary to obtain psychiatric evidence in

order to properly address causation and the nature and extent of the injuries. It is submitted

that this was not a case of inactivity or disregard of procedural timelines. Rather, the plaintiff

was actively progressing the claim by reference to the evolving clinical picture and the

expert evidence required to support it.

29. Under the heading "Special circumstances" the plaintiff states that clinical claims

frequently require more than one expert discipline. Whilst the orthopaedic report addressed

the surgical event itself it did not exhaust the evidential requirements of the claim. The

plaintiff's injuries, as they had evolved, included a significant psychological component. In

those circumstances, psychiatric evidence was not peripheral but necessary to enable the

plaintiff to properly plead and support the full extent of the injuries said to have been caused

by the events in question.

30. The plaintiff, it is said, was not awaiting psychiatric evidence for the purpose of

refinement and amplification of an already complete case. Rather she was seeking to ensure

that the case advanced was coherent, properly particularised and grounded in the necessary 12

expert report. It is submitted that proceeding in the absence of this report would have risked

advancing a materially incomplete case.

31. It is submitted that the authorities recognise that delay may be justified where an expert

report is reasonably required and steps are taken with appropriate expedition to obtain

it. That is precisely the position which pertained in the case.

32. It is also submitted that the delays encountered in securing psychiatric opinion arose

from matters outside the plaintiff's control, including consultant availability and waiting

times. Once the report was obtained the plaintiff acted promptly.

33. The authorities contemplate that a party may await a further report if this is fundamental

to the claim and if it is proper to await that report before progressing proceedings. This, it is

submitted, is such a case.

34. The submissions therefore argue that this is not a situation where proceedings were

allowed to drift while awaiting a non-essential report. Rather the case was one in which

further expert evidence, central to the claim and going directly to causation and damage,

was reasonably required and was pursued with appropriate expedition.

35. The submissions also argue that the delay in service was candidly accepted to have

arisen through inadvertence. Whilst inadvertence alone will rarely constitute special

circumstances, it does not arise in isolation here. Rather the inadvertence forms part of a

broader context in which the plaintiff was actively engaged in obtaining necessary expert

evidence and progressing the claim. In conclusion, the submissions argue the delay was

explained by the necessity of obtaining further expert evidence and the steps taken to

demonstrate reasonable expedition.

Supplemental affidavit of the plaintiff's solicitor 13

36. Notwithstanding the objection of the defendants, and the fact that prior leave had not

been obtained, I permitted the plaintiff to furnish a supplemental affidavit to the court at the

commencement of the hearing.

37. In this supplemental affidavit, the plaintiff's solicitor avers once again that it was

appropriate to issue proceedings on a protective basis in February 2023, pending completion

of the investigations. The solicitor avers, for the first time, that although an orthopaedic

report was subsequently obtained in June 2023, this report was provided in draft form and

did not complete the evidential picture necessary to responsibly advance the proceedings. In

particular, the plaintiff's clinical presentation included a significant psychological

component and the orthopaedic expert recommended at paragraph 7.16 of his report that

psychiatric assessment be obtained in order to address issues of causation and the nature and

extent of the plaintiff's injuries.

38. The affidavit acknowledges that the Personal Injuries Summons was served on 13

February, four days outside the 12 month limit through inadvertence and that, following

service, correspondence issued from the defendants’ solicitor during 2024 and early 2025

observing that that the summons had expired before service. The plaintiff's solicitor also

acknowledges that no substantive response was provided to that correspondence. This, he

states, arose in circumstances where the plaintiff's expert investigations were ongoing. In

particular, it was necessary to obtain psychiatric evidence as recommended by the

orthopaedic surgeon, to properly plead and advance the proceedings. The solicitor avers that

the process of securing psychiatric opinion was subject to delays outside the plaintiff's

control, including consultant availability and waiting times. Steps were taken during that

period to obtain the necessary psychiatric report, including making and pursuing a referral

in early 2024 and subsequent follow-up correspondence. 14

39. The plaintiff's solicitor exhibits this correspondence which includes a letter to the

psychiatrist seeking a report dated 23 January 2024 and also enclosing the report of Mr

Winston Kim, knee specialist. There appears to be no response to that letter and by email of

14 October 2024 a follow-up reminder was sent asking for appointment details and

requesting the psychiatrist to revert as a matter of urgency. The psychiatrist reverted by

email of 24 October 2024 indicating that she had not previously received the referral but

would try and schedule an appointment as early as possible. On 5 December 2024, the

psychiatrist again corresponded with the plaintiff's solicitor scheduling an appointment for

6 March 2025. The plaintiff's solicitor’s affidavit then indicates that the plaintiff was

ultimately assessed by the psychiatrist on 6 March 2025 and that a report was completed in

April 2025. It was then forwarded onto the orthopaedic expert on 12 June 2025 so that he

could finalise his opinion.

40. The plaintiff moved promptly to advance the proceedings, it is averred. Full particulars

were drafted on 25 June 2025 and delivered by 8 July 2025. The application to renew the

summons was brought without delay thereafter.

41. The affidavit is said to be sworn for the purposes of clarifying the chronology of events

in the context in which the proceedings were progressed. The affidavit respectfully

maintains that the delay in service was minimal and that the subsequent period is explained

by the necessity of obtaining essential expert evidence on causation and that further no

prejudice arises to the defendants. It is further indicated that if the renewal is set aside the

plaintiff will be entirely deprived of her claim arising from what is alleged to be a serious

surgical "never event". This, it is stated would constitute very significant prejudice.

42. The plaintiff's solicitor, therefore, avers that the interests of justice strongly favour

permitting the proceedings to continue and that the order renewing the summons was

properly made and should not be disturbed. 15

Legal principles applicable to applications to set aside renewal

43. Although the plaintiff’s solicitor’s replying affidavit suggests that it is necessary for

defendants to demonstrate misrepresentation, material non-disclosure or other defect in

relation to the ex parte renewal of the summons, it is now common case that this is not

necessary.

44. It is open to a defendant, by submission to demonstrate to the court that, even on the

facts before the Judge hearing the ex parte application, the order for renewal ought not to

have been made upon the proper application of the relevant legal principles.

Test for renewal

45. The summons in these proceedings which was issued on 10 February 2023, expired on

9 February 2024, served on 13 February 2024 was not renewed until 28 July 2025.

46. It is common case that no application was made to renew the summons during its

currency.

47. Order 8 Rule 1(4) sets out that a court may order renewal where satisfied that there are

“special circumstances which justify an extension”. Special circumstances constitute a

higher threshold in comparison with the standard under the previous iteration of the rule

which was that of good reason.

48. In Murphy v. Health Service Executive [2021] IECA 3, Haughton J. examined the

amended rule and noted that whilst this does not raise the bar to “extraordinary”, it

nonetheless suggests that some fact or circumstance that is beyond the ordinary or usual

needs to be present.

49. Haughton J. considered whether at a level of principle it is questionable whether

inadvertence on the part of a plaintiff or their solicitors can ever amount to or be relied upon 16

as a special circumstance. He stated that as far as legal advisors are concerned inadvertence

or inattention, for example in effecting service of the summons, will rarely constitute special

circumstances. Legal advisors, he stated, must be taken to be aware of the 12 month time

limit for service of the original summons and the consequences of allowing it to lapse.

50. The Supreme Court has, for the first time, examined the amended rule in Power v. CJSC

Indigo Tajikistan [2025] IESC 55. Woulfe J., stated that the test for renewal of a summons

is not a two-stage process. Rather, Order 8 Rule 1 (4) provides for one test or one question:

are there special circumstances which justify an extension. The court should view the special

circumstances as a single overall assessment of whether it is in the interests of justice that

the summons be renewed. Woulfe J. also agreed with the views of Haughton J. just set out

that, as far as legal advisors are concerned inadvertence or inattention, for example, in

affecting service of the summons will rarely constitute special circumstances.

Delay and the necessity to procure expert reports

51. As candidly accepted by the defendants, difficulties in procuring necessary expert

reports in professional negligence claims can constitute special circumstances which justify

renewal. However, this is not unqualified.

52. Thus, professional negligence proceedings should not be issued unless there is a proper

basis for doing so. In practical terms this means that prior to the institution of proceedings

an expert report should be obtained indicating that there is a reasonable basis for making a

claim against the defendant. However, if the proceedings are about to become statute barred

it is legitimate to issue a summons but not serve it until the required expert report is to hand.

53. However, as Delany & McGrath (Civil Procedure in the Superior Courts (5th ed.,

2025)) observe, if one or more reports have already been obtained, awaiting a further report

will generally not provide justification for delay in serving a summons, absent exceptional 17

circumstances such as where a second report is required dealing with a matter which is

fundamental to liability.

54. In applications either for renewal or to set aside a renewal of a summons, therefore, the

court will assess whether the report awaited was actually required before a decision could

be made as to whether the proceedings could be maintained. In other words, was the report

reasonably necessary in order to maintain the proceedings?

55. In this regard, the courts will afford a measure of deference to an informed decision

made by a plaintiff and their legal advisor in a clinical negligence case that, given the

absence of a specific report, is not appropriate to progress the proceedings. The court will

be slow to second-guess bona fide and reasonably made decisions as to when proceedings

should be served or progressed.

56. However, and crucially, some reasonable basis must nonetheless be put forward for

awaiting the report in question.

57. Furthermore, although the courts are keenly aware of delays and difficulties in securing

necessary expert reports in order to complete the elements of a claim, a lengthy delay cannot

simply be excused without some reasonable explanation.

58. As pointed out in Delany & McGrath it is not sufficient for a solicitor to simply seek a

report and then allow the proceedings to fall into abeyance while it is awaited. Therefore,

even if it has been established that the report was actually required before the proceedings

could be progressed, the party seeking renewal-or defending an application to set aside a

renewal-must also establish that any delay occasioned by the absence of the expert report

concerned was reasonable in all the circumstances. This means in practice that such a party

must demonstrate that appropriate expedition was used in attempting to procure the missing

report. 18

59. Logically, the special circumstances in question (i.e. an ongoing requirement for an

expert report together with the exercise of reasonable diligence in obtaining it) must sustain

up to the time of the application to renew the summons.

60. Where an expert report is awaited, this implies an obligation to bring forward the

application for renewal once the outstanding report is to hand.

61. Furthermore, as pointed out by Haughton J. in Murphy where the basic two year period

provided by the statute of limitations has expired and a protective writ has been issued, it is

important for the plaintiff to move with expedition if not alacrity in seeking and obtaining

the relevant expert opinion.

Prejudice

62. In this case, the plaintiff notes that if the renewal of the summons is set aside, her action

will become statute barred. On the other hand, the statute of limitations is available on a

reciprocal basis to both parties in an application such as this. The defendants are equally

entitled to rely upon the prejudice accruing to them from the deprivation of the statutory

limitation period.

63. Although the plaintiff avers that this is a “documents case”, I agree with the views

expressed by Simons J. in Rooney v. HSE [2022] IEHC 132 that the direct evidence of

witnesses of fact in surgical cases such as this would also have a bearing on the outcome of

proceedings. Not everything will have been recorded in the medical records. In a case such

as the present, therefore, the second defendant, may still invoke general prejudice by way

of failure of recollection.

Comparable authorities 19

64. The defendants have brought several authorities to the attention of this court in which

similar time frames to that at issue led to either non-renewal or setting aside of the renewal

of a summons. Although no two cases are directly comparable, these authorities do

demonstrate the relatively stringent approach adopted by the courts in recent times in

relation to applications to renew expired summons and applications to set aside such

renewal.

65. For example, in Hadnett v Joyce [2025] IEHC 599, a gynaecological medical

negligence case, Ferriter J. refused to renew a summons which had been erroneously served

just over two weeks late. The special circumstances invoked were that the solicitors for the

plaintiff had thought that they had served the summons in time and only realised afterwards

that they had not done so. Ferriter J. held that such inadvertence could not constitute special

circumstances. A further factor against renewal was a second period of inadvertence during

which the plaintiff’s solicitor had been expressly told that service had not occurred and yet

still failed to serve.

66. Similarly, in Maguire v. PSW Sales and Logistics Limited [2026] IEHC 81, Barr J. held

that inadvertence was not a special circumstance justifying the renewal of the summons in

circumstances where the plaintiff solicitor had thought that they had posted the summons to

the defendant in time, but where in fact it had been received just two days outside the

relevant timeframe. Barr J. was also influenced by the fact that the former solicitor did not

apply to renew when they were notified of the deficiencies in service and that there was

prolonged delay in the transfer of the file to the new solicitor. Barr J. concluded that delay

by her solicitor must be attributed to the plaintiff by virtue of the law of agency. Further

Barr J. was also influenced by the prejudice accruing to the defendant.

67. The case of Pisarski v. Kepak Cork Unlimited Company [2026] IEHC 94, concerned an

appeal from an order of the Circuit Court refusing to set aside the renewal of a Personal 20

Injuries Summons. The Personal Injuries Summons was issued on 4 August 2021. It was

never served by the plaintiff’s former solicitor. The plaintiff’s present solicitor obtained an

order renewing the summons on 15 July 2025 and same was served the following day. Barr

J. held that the existence of the belief on behalf of the plaintiff that his case was being

progressed and the deliberate decision taken by his former solicitor not to serve the

summons, did not constitute special circumstances that justified renewing the summons

three years and eleven months after it had issued.

68. Nolan v. Trustees of Bridge United AFC and Penturf Limited [2021] IEHC 335

concerned a personal injuries case involving an incident which occurred at a football field.

The Personal Injuries Summons was issued on 21 May 2018 and the time for service expired

on 20 May 2019. On 27 August 2019, the solicitors for the plaintiff became aware that the

summons had not been served. On 14 October 2019, an Order was made by the High Court

renewing the summons. The renewal of the summons was set aside by Barr J. in

circumstances whereby the inadvertence on the part of the solicitor did not amount to

special circumstances and the plaintiff could not rely on the fact that the statute of limitations

had not expired when the renewal of the summons was sought.

69. In the present case, the plaintiff did not apply to renew the summons for a period of

seventeen months after its expiry, despite four letters from the defendants’ solicitors noting

the expiry. On the basis of the authorities previously referred to, this delay whilst not

automatically precluding renewal required a reasonable explanation.

Discussion

70. The plaintiff’s oral submissions identify the special circumstances in this case as being

the following: 21

• firstly, the fact that the plaintiff’s investigations were not complete prior to the

receipt of the psychiatrist report;

However, it seems to me that the inexorable principle to be derived from the

authorities above is that this can only avail a plaintiff if it was reasonably necessary

for the plaintiff to await the psychiatric opinion prior to serving the proceedings and

up to the date of renewal.

• secondly, the inadvertence of the plaintiff’s solicitor in omitting to serve the

summons within time;

Once again, it seems to me that the courts have been very reluctant to accept

inadvertence as a good reason, still less as a special circumstance.

• thirdly, the fact that the delay in this case is minimal-the summons was served only

four days after its expiry. It is said that this is not therefore a case of prolonged non-

service suggesting abandonment of the case;

I accept that the delay in this case is minimal. However, as indicated above, the

approach of the court has not generally been to focus upon the question of how far

outside the period of its currency the summons may initially have been served but

upon the overall period of delay between the expiry of the summons and the

application for renewal. This delay is much more substantial and is said to have been

necessary by reason of the outstanding expert report. This raises the same essential

question: has the plaintiff established that it was necessary to obtain this psychiatric 22

report before applying to renew the summons and, if so, was any delay in actually

obtaining the outstanding psychiatric report reasonable?

• Fourthly, the fact that the defendants were on notice of the claim by reason of the

service of the notice of claim and the service of the expired summons and fifthly, the

fact that the defendants have not put forward any evidence of specific prejudice in

this case.

These are important considerations. However, I cannot accept that bare notice of a

claim and the absence of prejudice will be sufficient in and of themselves for a

plaintiff to successfully defend an application such as this. The preponderance of the

authorities clearly establishes that where the primary factual reason advanced by a

plaintiff for not serving a summons is the absence of an expert report the court must

consider both whether the report was reasonably required and, furthermore, whether

the reasonable diligence was exercised in obtaining that report.

71. The plaintiff requested the court to consider a copy of the report of Mr Kim in assessing

the current application. As the defendants neither objected nor consented to this, I have

concluded that it is appropriate to do so.

72. Although the report is indeed a draft report, it simply does not support the proposition

that it was necessary to await receipt of a psychiatric report before commencing or

progressing the proceedings. It is abundantly clear from the content of Mr Kim’s report that

it fully addresses breach of duty and causation in the sense of the physical sequelae of the

retention of the foreign body. Whilst it might well be that additional psychological sequelae

also ensued, it cannot be argued that it was necessary to await a condition and prognosis 23

report in relation to such psychological sequelae before progressing the case and in

particular before making an application to renew the summons.

73. It follows that I cannot be satisfied that it was reasonably necessary to procure a

condition/prognosis report in relation to psychiatric injuries before serving the proceedings

or renewing the summons.

74. The report of Mr Kim was available during the currency of the summons. Therefore,

there was no impediment to the plaintiff serving both the summons itself and further

particulars of negligence and breach of duty at that time. Instead, the proceedings were

permitted to expire unserved and unrenewed despite the plaintiff having obtained an

orthopaedic opinion on liability and causation during its currency.

75. Thereafter, after the service of the expired summons, the plaintiff’s solicitor failed to

respond to correspondence from the solicitor for the defendants noting the expiry of the

summons and enquiring regarding its renewal of February 2024, March 2024, July 2024 and

January 2025. Instead, the plaintiff’s solicitor waited until 8 July 2025 to deliver particulars

of negligence and breach of duty and until 28 July 2025 to renew the summons.

76. In any event, even if I am wrong and it was reasonable to await the receipt of the

psychiatric report, I must unfortunately conclude that the plaintiff’s solicitor has failed to

put forward a reasonable explanation for the delay in this case in obtaining same.

77. Mr Kim’s report was received in June 2023. Despite concluding that a psychiatric report

was apparently necessary to progress the claim, the plaintiff’s solicitor then waited six

months before writing to Dr McGuire, clinical psychiatrist, in January 2024. When no

response was received to this letter for a period of nine months, the plaintiff solicitor only

then wrote to Dr McGuire in October 2024, enquiring as to whether the report could be

progressed as a matter of urgency. The defendants accept that after this date, matters took

their course and an early appointment was facilitated in March 2025. This resulted in the 24

report becoming available in April 2025 and the application to renew being progressed in

July 2025.

78. This time sequence simply does not bear out the assertion of the plaintiff that they

experienced difficulties in obtaining an expert report. On the contrary, had the expert report

been sought and pursued with expedition in June 2023, there is every reason to believe it

would have become available at least a year earlier.

79. Although therefore there is no criticism of the delay post October 2024, I am driven to

conclude that it was not reasonable for the plaintiff’s solicitor to have allowed the prior

period of delay of well over one year (i.e. between June 2023 and October 2024) to

supervene in this case.

80. The defendants are now faced with defending a claim relating to the performance of

surgery which was only effectively commenced on service of a renewed summons in

September 2025, more than four years after the surgery in question and where the

proceedings can be expected to take a further period of years to be progressed to hearing.

81. Fundamentally, however, it does not appear to me that the evidence establishes either

that the outstanding psychiatric expert report was reasonably necessary to justify the

decision to effectively pause the proceedings or that the plaintiff did encounter difficulties

in obtaining expert reports such as to justify or explain the period of delay in applying to

renew the summons. This means that the special circumstances invoked at the time of

renewal of the summons which is effectively the same special circumstances now invoked

in opposing the present application are not simply made out. I conclude, with regret, that I

must set aside the renewal of the summons.