In the case of Galvin - v - Sharif and Anor, Justice Ferriter set aside an order to renew a personal injuries summon, originally issued in 2015 but not served until 2024.
Background
By way of background, the plaintiff, 70, underwent hip replacement surgery in 2005 and revision surgery in 2012. Proceedings were originally issued by the plaintiff's original solicitor in 2015 but not served within the requisite 12 months provided by the Rules of the Superior Courts (RSC).
The plaintiff was under the impression that her first solicitor was advancing her case, when in fact no service of proceedings had occurred. In 2020 the plaintiff instructed a different solicitor who discovered service had not occurred. Further delays occurred thereafter due to difficulties in the file transfer and missing documentation.
Special circumstances
The Court undertook a detailed analysis of the “special circumstances” required under Order 8 Rule 1 RSC for renewal of a summons, referencing recent case law.
It was accepted by Justice Ferriter that the egregious misconduct of the plaintiff's first solicitor, who actively misled the plaintiff and obstructed the file handover, constituted "special circumstances" up to June 2020. However, the Court found that the subsequent three-and-a-half-year delay of the plaintiff's solicitor in not seeking a renewal of the summons was not justified.
In refusing to grant a renewal order, the Judge demonstrated reluctance to penalise a blameless plaintiff, but also emphasised the necessity for plaintiffs (and their solicitors) to act with real urgency once defects in service are discovered.
Comment
This decision of Justice Ferriter emphasises the the strict approach of the Irish courts to the renewal of expired summonses, particularly in the case of solicitor error. Where “special circumstances,” may originally exist, once they are discovered it is apparent that any subsequent delay in seeking a renewal order requires full and detailed explanation for a plaintiff to avail of Order 8 Rule 1 of the RSC.
