Welcome clarity has been provided in relation to the requirements on Plaintiffs for applications for the renewal of a Summons. We examine the recent Court of Appeal decision in Murphy -v- HSE (2021) IECA3.
In this case, a Protective Summons was issued on behalf of the Plaintiff on a precautionary basis with a view to the Statute of Limitations. In all professional/ medical negligence there is a requirement to have a supportive expert report before issuing proceedings. This requirement can be overcome only in circumstances where the Plaintiff is at risk of becoming statute barred in the proceedings (two years from the date of incident/ date of knowledge of damage/injury) but they have not yet received an expert report verifying negligence. As the expert report was not available, the Summons specified that certain elements such as ‘breach’ and ‘causation’ were not particularised as medical expert reports were outstanding. A Protective Summons should thereafter be held on file (i.e. not served on the Defendant) until such time as a supportive expert report comes to hand.
The Summons expired on 1st September 2019 without being served, as the Plaintiff suffered delays as a result of being unable to pay for report fees and also in relation to receiving the reports from the doctors. Supportive expert evidence was finally received in January 2020, some 4 months later and the Plaintiff sought an ex-parte application to renew the summons. The application was granted, the Summons duly renewed, and thereafter served on the HSE.
The HSE then sought to have the renewal set aside on the basis that the delay between the expiration of the Summons and the Application for Renewal was inordinate and prejudicial in general to the HSE. They also claimed that the Plaintiff had delayed seeking the requisite medical reports after issuing the Summons in the first place. The Defendant claimed that these delays did not amount to special circumstances which would be sufficient to justify a renewal under the relevant Rules of the Superior Court.
The Court refused the application to set aside the renewal. Although he was critical of the way in which the Plaintiff had proceeded, Justice Cross noted that the delays in receiving the reports were outside of the Plaintiff’s control in the delay and that those delays constituted special circumstances. He also concluded that HSE had not suffered specific prejudice.
The HSE appealed to the Court of Appeal on the basis that Justice Cross did not apply the recently amended Order 8 of the Rules of the Superior Court (RSC) correctly and that the trial judge ought to have applied a two tier test established by Murphy -v- ARF and Downes as interpreted from the amendment of Order 8.
The Court of Appeal dismissed the appeal and upheld the High Court’s renewal. Mr Justice Haughton found no reason to interfere with the conclusions of the High Court, including its finding that a four-month delay between the expiration of the Summons and the renewal application was not excessive. The delay was said to be reasonable considering the Plaintiff had no responsibility for the delay in receiving the reports from the doctor. The Plaintiff’s age and poor health was stated to be a contributing and justifying factor in the delay.
The Court of Appeal also clarified that the only test a Judge must consider is whether there are special circumstances to justify renewal. The Court of Appeal specifically held that Order 8 Rule 1 (4) did not provide for the two step interpretation as argued by the HSE, as had been previously established in Murphy -v- ARF and Downes.
In those cases, it had been ruled that a Plaintiff must prove a) special circumstances sufficient to justify an extension of time to renewal the summons and b) that there were good reasons to renew the summons.
The decision in Murphy -v- HSE is therefore a welcome confirmation and clarification for Plaintiffs who find themselves in the difficult position of worrying on the Statute of Limitations whilst awaiting expert reports to support their claim.
In any event, it would be important for all Plaintiffs to make an application for renewal as soon as possible when a Summons expires to prevent lengthy delays which may found to be specifically prejudicial or may not reach the requirement for special circumstances.
Should you have any queries in relation to medical negligence, please do not hesitate to contact Brendan Dillon or Donna Phelan here at 01 296 0666.