Allied Irish Banks Plc v Boyd

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 14 October 2022
• Neutral Citation: [2022] IEHC 574
• Court: High Court
• Docket Number: [2017 1570S]

Between

Allied Irish Banks Plc

Plaintiff

and

Michael Boyd and John Boyd

Defendants

[2022] IEHC 574

[2017 1570S]

THE HIGH COURT

Summary summons – Renewal – Special circumstances – Defendants seeking to set aside an order renewing a summary summons – Whether there were special circumstances justifying the renewal

Facts: The plaintiff, Allied Irish Banks plc, was a bank, whereas the defendants, Messrs Boyd, were the legal personal representatives of the estate of Ms Boyd who died on 3 April 2018. Some 8 months prior to her passing, the plaintiff issued a summary summons against Ms Boyd on 9th August 2017. It was never served. On 26th April 2021 the High Court (Murphy J) made an order renewing the summons, following an ex parte application by the plaintiff. The defendants applied to the court seeking to set aside that order of 26th April 2021. The plaintiff’s motion was issued on 30th June 2021, 2 months after the renewal. The central issue for the purposes of the application was whether, in light of the evidence before the court, there were special circumstances justifying the renewal.

Held by Heslin J that, having considered the evidence, it was only because different proceedings were issued (in April 2020), a day after the statute of limitations period expired that the plaintiff sought, a year later (in April 2021), to try and ‘re-animate’ the proceedings which, having been issued in August 2017, were deliberately abandoned (by the end of 2019). He held that, as counsel for the defendants submitted, the plaintiff’s informed and unilateral decision “backfired because the plaintiff failed to issue those proceedings in time” and this was “due to no fault of the defendants”. Heslin J noted that, on the plaintiff’s behalf, Mr Browne averred: “I believe that if this Honourable Court were to grant the relief sought that the rights of the estate of the defendant can still be protected on the basis that the personal representative of the estate would be permitted to apply to set aside the renewal should they wish and they would also be entitled to defend the proceedings should they see fit”. Heslin J held that this reflects what is provided for in O. 8 of the Rules of the Superior Courts 1986 and he was satisfied that the plaintiff had not met the relevant onus of demonstrating the existence of special circumstances which justify the renewal.

Heslin J held that the renewal must be set aside. His preliminary view was that ‘costs’ should ‘follow the event’ and the event was the success of the defendants’ motion.

Application granted.

JUDGMENT of Mr. Justice Heslin delivered on the 14th day of October, 2022

Introduction

1 . The plaintiff is a bank, whereas the defendants are the legal personal representatives of the estate of Agnes Theresa Boyd who died on 3 April 2018 (where relevant, “Ms Boyd” or “the deceased”). Some 8 months prior to her passing, the plaintiff issued a summary summons against Ms Boyd on 9th August 2017. It was never served. On 26th April 2021 the High Court (Murphy J) made an order renewing the summons, following an ex parte application by the plaintiff. In the present application, the defendants seek to set aside that order of 26th April 2021 (“the order”). The plaintiff's motion was issued on 30the June 2021, 2 months after the renewal. The central issue for the purposes of the present application is whether, in light of the evidence before the court, there were special circumstances justifying the renewal.

The Order renewing the summons

2 . The Order made on 26 April 2021 (Murphy J) stated inter-alia the following.

“And the Court being satisfied having regard to order 8 rule 1(4) of the rules of the Superior Courts that the following special circumstances justify the making of an order extending the time for leave to renew the said summary summons herein.

In circumstances where the plaintiff placed a hold on proceedings while engaging with Financial Services and Pensions Ombudsman on foot of complaint made by the Defendant and where the parties entered an unsuccessful mediation process and where the Plaintiff did not pursue litigation during the current COVID-19 restrictions and where the Plaintiff was required to amend the Summary Summons on foot of the Supreme Court decision in Bank of Ireland v. O'Malley [2019] IESC 84.

IT IS ORDERED pursuant to order 8 rule 1(3) of the rules of the Superior Courts that the time for applying for a renewal of the said summary summons be extended to the date hereof.

AND IT IS ORDERED pursuant to order 8 rule 1(4) of the rules of the Superior Courts that the said summary summons be renewed for a period of 3 months from the date hereof…” (emphasis added)”

In addition to the foregoing, Murphy J made an order substituting the defendants in lieu of the original defendant (Agnes Teresa Boyd (otherwise Carmel Boyd)) and gave liberty to file an amended Summary Summons. The defendants seek to set aside the renewal.

Order 8 – Renewal of Summons

3 . O.8, r.1 of the Rules of the Superior Courts, 1986 (“RSC”), as substituted by the Rules of the Superior Courts (Renewal of Summons) 2018 ( S.I. No. 482 of 2018) came into operation on 11th January 2019. Sub-rule (1) of O.8, r.1 provides that “ No original summons shall be in force for more than twelve months”; and a “ plaintiff may apply, prior to the expiry of twelve months, to the Master for leave to renew…”.

4 . Sub-rule (2) goes on to provide that the Master may order the summons to be renewed for three months if satisfied that reasonable efforts have been made to serve or for other good reason. No such application to the Master was made.

5 . Sub-rule (3) provides that, after the expiration of 12 months and notwithstanding an order made under sub-rule (2), the relevant application must be made to the court. Such an application was made in the present case in April 2021 on foot of which the order was made.

6 . Of particular relevance to the present case is sub-rule (4) of Ord.8, r.1, which states that: “The Court on an application under sub-rule (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.” (emphasis added).

7 . There are 4 “ special circumstances” referred to in the order of 26th April 2021. I highlighted each of these 4 in bold when quoting from same but, for ease of reference, these comprise the following:-

• (1) “the plaintiff placed a hold on proceedings while engaging with Financial Services and Pensions Ombudsman on foot of complaints made by the Defendant”;

• (2) “the parties entered an unsuccessful mediation process”;

• (3) “the Plaintiff did not pursue litigation during the current COVID-19 restrictions”; and

• (4) “the Plaintiff was required to amend the Summary Summons on foot of the Supreme Court decision in Bank of Ireland v. O'Malley [2019] IESC 84”.

Order 8 rule 2 – motion to set aside renewal

8 . This is not an appeal against the order made on 26th April 2021. Nor is it an application for judicial review. Rather, it is an application made pursuant to O. 8, r. 2 which provides, as follows:-

“In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”

9 . The Defendants were not heard at the ex parte stage. Thus, this application constitutes a full de novo consideration of whether the summons ought to be renewed.

Evidence

10 . For the purposes of the hearing which took place on 15th July 2022, I was provided with (i) a book of pleadings; (ii) a joint book of authorities; and (iii) written submissions by both sides. The evidence comprised the following:-

• — affidavit of Mr Liam Mahony, sworn 15 March 2021 (Summons Server for the plaintiff);

• — affidavit of Mr Robert Brown, solicitor for the plaintiff, sworn on 14th April 2021, together with exhibits “RB1” – “RB2” thereto (which grounded the plaintiff's ex parte application to renew);

• — affidavit of Mr Seamus Brennan, solicitor for the defendants, sworn 24 May 2021, together with exhibits, per “Table of contents” (concerning a motion seeking the “DAR”);

• — affidavit of Mr Seamus Brennan, sworn 22 June 2021 (grounding the defendants motion to set aside the renewal).

Submissions

11 . I have carefully considered all of the foregoing. I have also carefully considered the written legal submissions which were provided to the court by Mr Kennedy SC for the defendants/moving party and by Mr Barron SC for the plaintiff/respondent. Both counsel supplemented these by means of detailed oral submissions. The respective positions of their clients could not have been put with greater clarity or skill and I am very grateful for the assistance which both counsel gave to the court. I will refer to various submissions during the course of this judgment.

Relevant legal principles

12 . There was no dispute between the parties as to the applicable legal principles. Clear guidance in this area has been given by the Court of Appeal in a relatively recent judgment by Mr Justice Haughton, handed down on 15th January 2021 in Murphy v. Health Service Executive 2021 [IECA] 3. In Murphy, Haughton J carried out a thorough analysis as to the proper interpretation of Ord. 8 and the single test with which this Court is concerned on an Ord. 8, r. 4 application. In short, the Court must be “satisfied that there are special circumstances which justify an extension”. Given the significance, for present purposes, of the guidance provided by the Court of Appeal under the heading “ Special Circumstances”, it is appropriate to set this out, verbatim, before turning to look at the facts which emerge from an examination of the evidence before this court:

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