The courts recognise that the progression of cases and the avoidance of delays in litigation does not rest solely with the parties alone (Moynihan v Dairygold Cooperative Society Ltd; Gilroy v Flynn), but also with the courts, being an emanation of the State and the State’s obligations under articles 6 and 13 of the ECHR to ensure a fair trial in a reasonable time and an effective remedy (McFarlane v Ireland).
The order of things
Order 8, rule 1 of the Rules of the Superior Courts remains the same and provides that an application may be made to the Master during the currency of the summons: “No original summons shall be in force for more than 12 months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of 12 months to the Master for leave to renew the summons.”
Order 8, rule 2 provides: “The Master, on an application made under subrule (1), if satisfied that reasonable efforts have been made to serve such defendant or for other good reason, may order that the original or concurrent summons be renewed for three months from the date of such renewal inclusive.”
Rule 2 allows the Master to renew the original or concurrent summons for three months. The Master may renew a summons once where the application is made during the currency of the summons and where the plaintiff has demonstrated (a) reasonable efforts to serve the summons or (b) where they have established “other good reason”. A plaintiff is required to establish which ground they are relying on and set out those grounds in the grounding affidavit.
Where a plaintiff relies on the ‘other good reason’ limb, the plaintiff is required to establish the other good reason why the summons should be renewed. The ‘other good reason’ is not, as often mistakenly believed, to be ‘other good reason for not serving the summons’.
In Lawless v Beacon Hospital (2019), Peart J held that the rule “enables the court to order renewal either where reasonable efforts to serve have been made within the time, or for other good reason. The words ‘other good reason’ are not linked to the failure to serve the summons, as the trial judge states. Rather, the court must consider whether there is some other good reason for exercising the discretion to order that the summons be renewed.”
Application to extend
Order 8, rule 3 provides: “After the expiration of 12 months, and notwithstanding that an order may have been made under subrule (2), application to extend time for leave to renew the summons shall be made to the court.”
Rule 3 sets out the procedure for applications after the expiration of 12 months and that such applications should be made to the High Court, “notwithstanding that an order may have been made” by the Master, and the High Court may grant a further renewal for a period of three months (Downes v TLC Nursing Home Limited and Murphy v HSE).
Order 8, rule 4 says: “The court on an application under subrule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.”
The amendment to rule 4 reduces the period a summons can be renewed “from six months to three months, [which] may indicate an intention to tighten procedures” (Murphy v ARF Management Limited).
In Murphy v ARF, Meenan J held that the High Court may only renew the summons once, and this interpretation was cited with approval in Downes. While not relevant to the case before the court, the Court of Appeal in Murphy v HSE said that the amended rule 4 “does not contain any clear or express provisions limiting the number of renewals, and that this would have been set out explicitly if it was the intention of the rule makers”.
It was further noted that “it is conceivable that if a summons was renewed on the basis of special circumstances, such special circumstances might persist beyond the three-month period of renewal, or further special circumstances might arise”.
Recent case law has also given rise to much debate as to the applicable test, and whether it is a one or two-step test (Murphy v ARF; Ellahi v Governor of Midlands Prison; Brereton v Governors of the National Maternity Hospital; Murphy v HSE (High Court); and Downes and O’Connor v HSE ). While the majority in the High Court appeared to prefer or accepted a two-step test, the Court of Appeal in Murphy v HSE held that a single-step test applies, and there is no requirement to first seek leave to extend time to bring the application.
The Court of Appeal then considered the single-step test, which is that the court must be “satisfied that there are special circumstances which justify an extension” and said the special-circumstances test is higher than the original ‘good-reason’ test, but is below the bar of ‘extraordinary’ – and the special circumstances relied upon should be considered on a case-by-case basis.
The Court of Appeal went on and approved the analogy offered by Hyland J in Brereton that the test of ‘special circumstances’ as it applies resisting a claim for security for costs was useful, and that “the court should consider whether it is in the interests of justice to renew the summons, and this entails considering any general or specific prejudice or hardship alleged by a defendant, and balancing that against the prejudice or hardship that may result for a plaintiff if renewal is refused”, which reflects the principles set out in Chambers v Kenefick (2005).
The continued provisions for the renewal of a summons, and the possibility of more than one renewal in the High Court, may provide some comfort – but it does come with a caution. In Brereton, a delay of ten weeks was viewed as being at the outer limit of what the court deemed acceptable, considering the facts of that case.
Previously, leniency was afforded by courts hearing ex parte applications, in the knowledge that a defendant could bring an application to set aside any renewal, but the courts’ requirement to set out the special circumstances relied upon in the order may give rise to greater scrutiny in ex parte applications. Further, awareness of successful applications to set aside renewals may encourage more defendants to apply to set aside renewals.
Given that the application under order 8 is ex parte, it is essential that all relevant facts are laid before the court hearing the renewal application, and the court hearing the application to set aside.
A number of judgments make reference to deficiencies in affidavits grounding applications to renew where affidavits contain misrepresentations (Whelan v Health Service Executive), inconsistencies/contradictions (Downes) or no meaningful explanations (Ellahi).
The courts have become increasingly critical of general grounds relied upon in grounding affidavits – for example, inadvertence on the part of legal advisors (Congil Construction Ltd (In Liquidation) v Kitt; Downes; v HSE in the Court of Appeal); the plaintiff’s claim being statute barred (Murphy v ARF); and the absence of an expert report where the plaintiff failed to obtain the necessary reports in a timely manner.
Where the delay can be explained and efforts were made to obtain reports in a timely manner, a court will consider the particular facts (Murphy v HSE), but where inadequate reasons were offered for a delay (Ellahi), a court may refuse to renew or may set aside any such renewal.
The failure to notify defendants of legal proceedings has given rise to some criticism (Moloney) but, in a claim giving rise to a ‘notifiable event’ in professional-negligence proceedings, a court should be slow where the notification itself may have serious consequences for some professionals (Murphy v HSE, Court of Appeal).
A defendant seeking to set aside the renewal of a summons should issue their motion prior to entering an appearance, and any default applications that may issue should be adjourned until a court has determined the application to set aside (Downes).Where a defendant enters an unconditional appearance, the appearance will cure any defect in service, including the service of an expired summons (Lawless).
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