High Court refuses renewal of time-barred personal injury summons due to plaintiff's exceptional delay and failure to serve properly.

Neutral Citation Number: [2009] IEHC 272

THE HIGH COURT

2002 3572 P

BETWEEN/

FRANCES KEARNS

PLAINTIFF

AND

ROCHES STORES

DEFENDANT

JUDGMENT of Mr Justice Cooke delivered on the 18th May, 2009.

1. By order of 17th May, 2004, made by Peart J. pursuant to O. 8, r. 1 of the Rules of the Superior Courts, the plenary

summons in this action, which had been issued from the Central Office of the High Court, on 6th March, 2002 but not

served, was renewed for a period of six months, that is, until 16th October, 2004.

2. The renewed summons was apparently delivered to the offices of Messrs. O’Flynn Exhams, the solicitors nominated to

accept service on behalf of the defendant on 18th May, 2004, but the firm declined to accept service as the summons did

not bear the impressed stamp of the date of renewal as required by O. 8, r. 1.

3. The plaintiff’s solicitors then purported to serve the summons by registered post at the registered office of the

defendant (an unlimited company) on 11th October, 2004, although the summons still did not bear the renewal stamp.

4. A conditional appearance was entered on behalf of the defendant and the present application is now brought pursuant

to r. 2 of O. 8 to set aside the renewal of the summons by the order of 17th May, 2004.

5. There can be no doubt but that this action has been characterised by quite exceptional delay on the part of the

plaintiff when it is realised that its claim for damages for personal injuries arises out of an accident which it is alleged the

plaintiff sustained in the defendant’s department store on 27th July, 1983 – over a quarter of a century ago – when she

was aged two years and four months.

6. The plaintiff attained the age of 18 years on 12th March, 1999, so the issue of the plenary summons on 6th March,

2002, took place only a few days short of the third anniversary of that birthday.

7. No attempt was apparently made to serve the summons in the following year and it expired on 5th March, 2003. In an

affidavit sworn by Mr. Raphoe Collins of the plaintiff’s current solicitors Messrs. O’Rourke Reid on an unspecified date (but

filed on 4th May, 2004), to ground the ex parte application to renew the summons, reference is made to the fact that,

according to the file which that firm took over from City Gate Law, the plaintiff’s previous solicitors, the summons had

been delivered personally to the assistant general manager of the defendant on 6th March, 2003 at the department store

in Dublin.

8. Again by reference to the file, the plaintiff’s solicitor claims that on 17th July, 2003, the defendant’s insurers had

nominated the firm of Messrs. O’Flynn Exhams to accept service of the proceedings on its behalf. By letter dated 18th

July, 2003 the latter firm confirmed their instructions and asked for a series of details relating to the accident and the

claim. No reply was received from City Gate Law to that letter but, having apparently learned of the change of solicitors

which had taken place in July 2003, they wrote forwarding a copy of the letter and repeating the request for the

information on 23rd September, 2003. A reply giving the information was sent to O’Flynn, Exhams & Partners on 30th

January, 2004.

9. It appears that it was at this point that it was realised that any service purported to have been effected on 6th

March, 2003 was out of time and ineffective and accordingly, it was not until fourteen months after the expiry of the

summons that an application was made ex parte to Peart J. for its renewal.

10. Under O. 8, r. 1 an expired summons may be renewed by the court when it is satisfied that the plaintiff has shown

that “reasonable efforts have been made to serve the defendant” or that “for other good reason” the summons ought to

be renewed. As the affidavit grounding the ex parte application makes no reference to any attempt to serve the summons

during the year following its original issue from the Central Office, it must be assumed that the order of 17th May, 2004

was based upon some “other good reason” – presumably the fact that the summons had been delivered to the

department store one day late. Not surprisingly, therefore, when they learned that the summons had apparently been

renewed (if not yet properly served,) the defendant’s solicitors wrote on 22nd and 24th September, 2004, asking to be

furnished with a copy of the affidavit grounding the ex parte application for renewal together with any exhibits or

documents referred to therein.

11. It must be a matter of surprise, therefore, having regard to the long delays that had already occurred and the

difficulties that had been experienced in effecting service, that no response was made to either of those letters and

(apart from the attempt to serve the summons by registered post on 11th October, 2004) no further step was taken on

the part of the plaintiff in the proceeding until the defendants’ solicitors wrote once more to the plaintiff’s solicitors on 8th

October, 2008 pointing out that the service by registered post effected on 17th November, 2004 was outside the period

of six months from the renewal and therefore ineffective. The letter also pointed out that the earlier letters had received

no reply and no copy of the grounding affidavit and exhibits had been furnished. They wrote again to the plaintiff’s

solicitors on 17th October, 2008 in similar terms and again demanded a copy of the affidavit.

12. Showing no sense of discomfort at the inactivity in the proceeding on the plaintiff’s side in the intervening years, the

plaintiff’s solicitors replied to these letters on 20th October, 2008, by adopting a robust stand on the demand for a copy

of the grounding affidavit as follows:-

“We are at a complete loss to understand your insistence upon inspecting the affidavit of Raphoe Collins grounding

the ex parte application to renew the plenary summons. We cannot see how you can insist upon it in circumstances

where you failed to respond to our calls to enter an appearance on behalf of your client, the defendant herein. As a

result of such we are left with no option but to correspond directly with the defendant and we are perfectly entitled

to act in this manner.”

The letter warned that judgment would now be marked against the defendant in default of appearance.

13. This difficulty in understanding could, of course, have been cured by a perusal of r. 2 of O. 8 which expressly provides

that where a summons has been so renewed on an ex parte application, “any defendant shall be at liberty before entering

an appearance to serve notice of motion to set aside” the renewal order. It is only by consulting the grounding affidavit

that the defendant can assess what reasonable efforts at service or “other good reason” were relied on and whether an

application to set aside might be justified.

14. On 28th January, 2009, a conditional appearance was entered on behalf of the defendant and the present motion was

then brought.

15. Although the history of this proceeding has been set out above in order to give the context in which the present

application has been brought, it is important to note that this is not an application to dismiss the action for want of

prosecution either under the relevant orders of the Rules of the Superior Courts or under the inherent jurisdiction of the

court not withstanding the inordinate delay that has obviously occurred even since the plaintiff attained her majority in

March, 1999. Although the length of delay which has occurred combined with any resulting prejudice to the defendant are

factors that can be taken into account upon an application to set aside under r.2, the primary issue before the court is,

in effect, the issue as to whether there was “other good reason” which justified the renewal of the summons.

16. A defendant is not precluded from moving subsequently to dismiss the action for want of prosecution on grounds of

inordinate delay and prejudice to the defendant once an unconditional appearance has been entered. The essential issue

which the court must decide on an application under r. 2 is whether, having regard to all of the information now placed

before the court and particularly that now offered on behalf of the defendant there is still “other good reason” for

renewing the summons or whether, if any additional information had been before the court on the making of the ex parte

application, it is satisfied that the order would not have been made.

17. This is a case in which, if the renewal of the summons is set aside, the plaintiff’s claim will be statute barred. In that

regard, the Court agrees with the approach suggested by O’Neill J. in O’Grady v. Southern Health Board [2007] 2 I.L.R.M.

51, where he says:-

“In the light of all this, in my view, this court on an application under O.8, r.2. should not refuse to renew, where

the case would otherwise be statute-barred, unless the defendant demonstrates to the satisfaction of the court,

the clearest possible case of actual prejudice, such that his defence to the claim has been in actual terms

substantially impaired.”

18. On behalf of the defendant the point is made that as it is 25 years since the alleged accident the recollections of

parties involved and any witnesses must inevitably be affected by the delay. Indeed, the possibility of correctly

identifying witnesses and then making them available must be highly questionable at this stage. On behalf of the plaintiff,

the element of prejudice to the defendant is sought to be discounted by pointing out that the full medical records in

relation to the plaintiff’s treatment after the accident are available.

19. The accident out of which the claim arises apparently occurred when the plaintiff as an infant fell on an escalator in

the department store while in the company of her grandparents. So far as the accident itself is concerned, the point

made on behalf of the defendant is obviously of considerable substance. It is not known at this stage if it is to be alleged

that the escalator was in any way defective and if so whether that same escalator still exists to be examined, if

necessary. It would be furthermore quite understandable if the plaintiff herself has little if any accurate recollection of the

accident happening.

20. The court considers, however, that these are issues that are more properly left to a more detailed examination when

the full basis of the plaintiff’s claim is pleaded and the defendant has an opportunity of moving to dismiss the claim upon

grounds of gross delay and prejudice. So far as those factors are concerned, having regard to the fact that the major

delay is that between the date of the accident and the plaintiff’s attaining 18 years of age, the position of the defendant

does not appear to be materially different now as compared with its position had the summons been served within the

twelve months following its issue on 6th March, 2002.

21. In spite of the very considerable delays that have occurred and the casual attitude adopted by the plaintiff’s

solicitors towards compliance with the rules of court governing effective and timely service of proceedings, it can at least

be said that the defendant was alerted to the threat of the claim by the letter of 26th February, 2002 and that it had

placed itself in a position to deal with the claim by nominating solicitors for the purpose in July, 2003. The additional facts

placed before the court by the defendant on this application do not materially alter the position as it was on the ex parte

application. The only new facts so indicated post-date this renewal of the summons namely, the rejection of service of

the summons as renewed on 18th June, 2004, and the alleged defectiveness of the service by registered post in October,

2004.

22. For theses reasons the application to set aside the order renewing the summons of 17th May, 2004 will be refused.