When the statutory period expires, it expires…or does it?
4 May 2021
After previous uncertainty in certain High Court decisions, the Court of Appeal has clarified the legal test to be applied when seeking to renew a High Court Summons
The Statute of Limitations sets down specific time limits available to a person to initiate a civil claim against another person. It allows the person a specific amount of time within which to bring the claim. This provides certainty for defendants but also reflects the need to progress cases if appropriate.
The recent Court of Appeal (“CoA”) decision of Murphy v HSE 2021 IECA confirmed the legal test for the renewal of a personal injuries summons. The case had come by way of an appeal by the defendants (the HSE in medical negligence proceedings. The High Court had allowed the renewal of a personal injuries summons. In its decision, the Court of Appeal clarified that in an application to the High Court seeking to renew a summons it is sufficient for the applicant to show “special circumstances” for the delay in order to succeed in the renewal application.
Order 8 of the Rules of the Superior Courts (“RSC”)
The basis for a renewal of summons application is grounded in Order 8 Rule 4 of the (RSC). If the previously issued summons has not been served within the requisite one-year period and therefore is out of time. The claim is consequently statute-barred. Order 8 of the RSC was amended in 2018 and the Defendant submitted in its appeal that the amendment required a two-step process to renew the summons. The Defendant (The HSE) argued that an applicant must first show ‘special circumstances’ to justify an extension of time to seek to renew and then provide ‘good reasons’ to justify the renewal. This two-step approach was rejected by the CoA and it clarified the correct legal test going forward.
This illustrates the confusion since the 2018 amendment of Order 8 with some courts agreeing with the defendants that there was a two-step approach to the test for renewal. However, other Judges including Mr Justice Cross and Ms Justice Hyland held that the two-step approach was not the correct legal test to be applied under Order 8 as amended.
Background to the case
The plaintiff, Sheila Murphy, had issued medical negligence proceedings against the Health Service Executive (“HSE”) by way of a personal injuries summons in August 2018. This summons had been issued on a protective basis, to prevent the claim from being statute barred, as the plaintiff was not yet in possession of an expert medical report.
The summons subsequently expired in August 2019, as result of the plaintiff inadvertently failing to discharge the cost of the medical reports. The HSE was notified of the claim in January 2020 and the summons was renewed by way of ex parte application in February 2020.
High Court Proceedings
The HSE then issued a Notice of Motion in May 2020, seeking to set aside the renewal of the summons on the basis that the 5 month period between the expiry of the summons and the application to renew was excessive. The HSE also argued that the failure to obtain an expert medical report did not constitute a special circumstance. Mr Justice Kevin Cross refused the application and held that the delay in this case in obtaining a medical report was a sufficient special circumstance to justify the renewal of the summons.
Court of Appeal Decision
This decision was then appealed by the HSE, who claimed that the trial judge applied an incorrect interpretation of the test under the amended Order 8.
The CoA dismissed the appeal and awarded the costs of the High Court application to the plaintiff. It held that the delay in obtaining the medical reports was not unreasonable, given the advanced age of the plaintiff and her frail health. The CoA agreed with the trial judge’s assertion that the issue and service of medical negligence proceedings, without the sufficient expert medical report to support the claim, is inappropriate and should not be encouraged. It further accepted the trial judge’s opinion that the absence of the necessary expert opinion to ground a case constitutes a special circumstance to justify the renewal of the summons. The CoA did note however, that where such a delay has occurred, it would be prudent to notify the named defendants and give an explanation as to why they have not yet been formally served.
In relation to the interpretation of a two-step test under Order 8, the court closely examined the wording of Order 8 as amended and held that to interpret Order 8 as requiring a two-step test was introducing words that “simply are not there.”
Questions for the future
This decision clarifies the applicable test under Order 8 RSC for the application for renewal of a summons and this is welcomed. However, the judgment raises an important question around whether a delay in obtaining an expert opinion due to the impact of the Covid-19 pandemic would be considered a ‘special circumstance’ for the purpose of seeking a renewal of a personal injuries summons. It also introduces an element of uncertainty for defendants in proceedings or potential proceedings.