High Court sets aside renewal of Personal Injury Summons

In the recent decision of Nolan v Trustees of Bridge United AFC & Anor [2021] IEHC 335 the High Court set aside the renewal of a personal injury summons. This article examines the Court’s interpretation of “special circumstances” which has been the subject of much debate in recent times.

Background

The Plaintiff’s claim arose out of an accident on 20th December 2016, when he injured himself while playing football on the first defendant’s AstroTurf pitch, which had been laid by the second defendant. An Order for renewal of the personal injury summons was obtained on 14th October 2019 on the basis of an “administrative oversight”.  The first named defendant sought to have this set aside, submitting that an administrative oversight did not constitute “special circumstances” as required to permit such an Order.

The Plaintiff argued that there were three factors that amounted to “special circumstances”;

• There had been an inadvertence on behalf of the Plaintiff’s solicitor to serve the summons on time.
• When the application had been made, the Plaintiff’s claim was not statute barred and he could have instituted fresh proceedings arising out of the accident.
• There was no prejudice to the defendant (as there had been correspondence regarding the claim at an early stage).

The High Court Decision

Mr. Justice Barr set aside the renewal on 14 May 2021, rejecting the Plaintiff’s contentions.

The Court accepted that the application by the defendant to set aside the Order was a de novo hearing and that it must look at the application “through the temporal prism of the date of the ex parte Application” to adjudicate on the delay that existed in relation to service of the summons up to the point that renewal of the summons was sought.

The Court held that it is not however possible for a Plaintiff to “graft on” a new factor as a special circumstance, which was not raised at the time of the ex parte application.  In this case, the Court found that on the balance of probabilities, the issue of the Plaintiff’s application not being statute barred was not raised at the time the ex parte application was moved.

Mr. Justice Barr held that even if it was wrong to reach this conclusion, the High Court clearly did not find that this constituted special circumstance at the time of the ex parte application as such circumstances were not stated on the Order as required.   Therefore, the fact that the Plaintiff’s action against the defendants was not statute barred at the time that he made his application to renew the summons was not relevant to the issue as to whether that renewal should be set aside.

The Court confirmed the well-established rule that inadvertence of the Plaintiff’s solicitor would not suffice. However, Mr Justice Barr did acknowledge that with sufficient evidence, there may be exceptional cases where “inadvertence” would satisfy the special circumstance criteria, for example, if the solicitor’s office was subject to extensive fire or flood, if the solicitor dealing with the proceedings, is involved in a serious accident in the months leading up to the expiry of the twelve month period, such that he or she omits to serve the summons within time or if a member of the Plaintiff’s family were similarly involved in a serious accident, either at home or abroad.

Finally, the Court affirmed that while the defendant had not suffered any “discernible prejudice” due to the delay, the absence of prejudice was not sufficient to warrant a renewal of the Summons.

Conclusion

This decision highlights the importance for legal advisors to act promptly when issuing, serving and renewing a summons.  Inadvertence on behalf of the solicitor will generally fail to constitute a “special circumstance” and the fact that a Plaintiff’s claim is not statute barred will also not satisfy the test.

It also serves as a reminder for parties to raise all relevant grounds for renewal at the ex parte application as litigants will not be able to raise additional grounds should an application to set aside the Order be made subsequently.

This article was written by Yvonne Joyce, Partner, CKT and Keeva McHugh, Intern, CKT.