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In the Winter 2023 edition of The Parchment, we assess the decision of the High Court in Murphy v Depuy Ireland Unlimited Company [2023] IEHC 220 which is of great relevance for personal injuries summons, demonstrating that a failure to serve same within the requisite time period may not necessarily prove fatal.
Background to Personal Injuries Summons
The plaintiff in this case was an employee of the defendant and, having sustained injuries in the workplace, issued a personal injuries summons on the 7th of May 2021. However, the 12-month timeframe for service of personal injuries summons elapsed without said service. Notwithstanding this, on the 17th of May 2022 (i.e. 10 days after the expiry date), an application was brought in accordance with Order 8 of the Rules of the Superior Courts to renew the summons, which ultimately proved successful.
Influential Factors
In allowing the application, the Court was influenced by several factors, notably the absences within the plaintiff’s firm caused by Covid-19, retirement, sick leave and maternity leave. The plaintiff also cited an inability to obtain expert reports and that there were 37 analogous claims against the defendant in being. Nevertheless, the defendant subsequently entered an appearance and issued a Notice of Motion opposing the decision.
Consideration of Applicability of Special Circumstances
When the matter came before the High Court, considerable consideration was given to the applicability of special circumstances in the context of renewing a summons. In allowing the renewal to stand, Barr J observed that Order 8 of the Rules of the Superior Courts allows a summons to be renewed when a court is satisfied as to the presence of special circumstances that justify an extension of time. The test for such circumstances was detailed in Murphy v HSE [2021] and the court retains a discretion to allow a renewal. Furthermore, the Murphy decision requires a court to have regard to the balance of justice between the parties.
10-Day Delay Deemed Permissible
In the present case, the Court was of the view that the aforementioned 10-day delay was merely de minimis (and therefore permissible), considering that a 10-week delay in respect of a requirement to serve a summons within 12 months was deemed sufficiently short to allow an extension in a previous decision of the High Court (Brereton v National Maternity Hospital [2020]).
Special Circumstances
On the presence of special circumstances or lack thereof, the Court acknowledged that the plaintiff’s solicitors had lost a total 133 staff days in 2021 as a result of illness and this was held to be a special circumstance. Whilst retirement and maternity leave were foreseeable, their combination with sick leave amounted to special circumstances.
Excusable Inadvertence
Of note, the Court observed that inadvertence prevented the service of the summons, yet the culmination of factors impacting the firm meant that this inadvertence was excusable. “Mere inadvertence” alone would typically be insufficient grounds to permit a renewal, yet inadvertence exacerbated by special circumstances, such as destruction of a firm’s office, could justify a renewal.
Length of Time to Renew Summons
The Court further stated that regard must be had to the length of time taken to set about renewing the summons (Brereton) and it also determined that the defendant was on notice of the plaintiff’s claim. For example, a PIAB authorisation had issued in November 2020 and there was email correspondence between the firms. Moreover, the Court considered that the defendant was not prejudiced by the 10-day delay; another factor which enabled the renewal to stand.
Conclusion
In conclusion, the ruling of the Court was underpinned by the plethora of operational issues affecting the plaintiff’s solicitors, the speed in which a renewal was sought by the plaintiff and the absence of prejudice caused to the defendant. Moving forward, this decision should provide clarity as while it is most certainly preferable to serve a summons before its expiry, a delay which is not inordinate should not prevent a renewal where special circumstances exist to justify an extension of time.
Further Information
For further advice on the implications of this ruling for personal injury matters, please contact Avril Scally, Partner and Head of our award-winning Medical Negligence and Personal Injury Team.
The Parchment
The Parchment is the quarterly publication from the Dublin Solicitors Bar Association, with the Winter 2023 edition of The Parchment available here.