Brophy v Governor of Mountjoy Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] IEHC 700 |
| Docket Number | [2015 No. 7288 P.] |
| Court | High Court |
| Date | 06 December 2018 |
[2018] IEHC 700
THE HIGH COURT
O'Regan J.
[2015 No. 7288 P.]
AND
Summons – Statute of limitations – Renewal – Defendants seeking an order to set aside the renewal of a plenary summons granted after the expiration of the summons – Whether the plaintiff had shown good cause for the renewal
Facts: The defendants sought an order pursuant to Order 8 Rule 2 to set aside the renewal of a plenary summons which had been granted on an ex parte basis after the expiration of the summons. The plaintiff obtained a plenary summons on 9th September 2015 and failed to serve it within the initial twelve month period. Order 8 Rule 1 allows for the renewal of the summons after the expiration period if the court is satisfied reasonable efforts have been made to serve the defendant or for good cause. In the grounding affidavit for the initial application to renew, the plaintiff’s solicitor stated that it was not a deliberate strategy to allow the summons to expire, and that renewal was not sought following the expiry as it was reasonable and expedient. In a subsequent affidavit by the plaintiff, it was stated that the renewal was not sought due to an administrative oversight. The defendant argued that contradictory reasons should not be considered by the court in the determination of good cause.
Held by O’ Regan J that the plaintiff did not demonstrate a good reason to renew the summons and therefore the renewal would be set aside. O’Regan J noted that the court must first assess whether there was a “good reason” within the meaning of O. 8, r. 1, and then consider the interests of justice, balancing the hardship for each party. O’Regan J found the reasoning within the plaintiff’s two affidavits to be contradictory and agreed with the defendant’s contention that contradictory reasons could not be considered by the court. The plaintiff was therefore treated as having offered no reason as to why the summons was not renewed following the expiry of the 12 month period.
The plaintiff’s remaining reason for not serving the summons within the initial twelve month period was not a “good reason” and therefore the court did not have to consider the interests of justice/balance of hardship.
O’Regan J stated that the courts have adopted an increasingly strict approach to delay in all kinds of cases and noted the rationale behind the statute of limitations is that a defendant is entitled to assume he will not be faced with litigation after a certain period. In light of all the circumstances, the order to renew the summons was set aside.
Relief granted.
The within matter comes before the court by way of motion on behalf of the defendants pursuant to O. 8, r. 2 of the Rules of the Superior Courts, bearing date 13th March 2018, to set aside the renewal of the plenary summons obtained by the plaintiff on 10th July 2017. The relevant summons was issued on 9th September 2015, and ultimately served on the respondent on 8th January 2018.
Under O. 8, r.1, an original summons is in force for twelve months, however, if the defendant is not served within that time, the plaintiff may apply before the expiration of the time to the master for leave to renew and after the expiration of the twelve month period such an application to extend time is to be made to the court. The court or the master, if satisfied that reasonable efforts have been made to serve such defendant or for other good reason may order the renewal for a period of six months. Under O. 8, r. 2, if the application for renewal under O. 8, r. 1 is on an ex parte basis, a defendant is at liberty before entering an appearance to serve notice of motion to set aside such order.
A conditional appearance was entered by the defendants on 6th March 2018.
It is the case that the within named plaintiff was in Mountjoy Prison for various periods between 3rd December 2009 and 23rd December 2011, and was in Limerick Prison for various periods from 3rd February 2012, and 22nd August 2012 (see the letter of 25th January 2018 confirming same by the plaintiff's solicitors to the defendants, exhibited in the grounding affidavit of Marian Lonergan, in support of the defendants” motion).
It is common case that no notification was afforded to the defendants in respect of the plaintiff's claim herein prior to the service of the summons as aforesaid 8th January 2018 (two days before expiry of the renewal period).
The defendants acknowledges that it is possible for an applicant to afford the relevant good reasons identified in O. 8, r. 1 of the Rules of the Superior Courts both in the affidavit to ground the ex parte application and in the affidavit to resist the set aside application on behalf of the defendants. In this regard, two affidavits were sworn by Gareth Noble, Solicitor, on behalf of the plaintiff, the first being to support the ex parte application bearing date 29th June 2017, and the second bearing date 21st November 2018, for the purposes of resisting the defendants” application to set aside the renewal.
In addition, there is an affidavit of Nicola Dunphy of 22nd November 2018, on behalf of the plaintiff wherein she has reviewed the cases in which the office of Messrs. K. O'D. Lyons Solicitors secured renewal orders on the 10th July 2017, and it appears that 43 such orders were obtained on that date. On an assessment, she states that in respect of fourteen of the cases, a conditional appearance was entered with the intention of making an application to set aside the renewals. However, save for potentially four cases, the balance of the renewal applications, were the subject matter of unconditional appearances. On the basis of this affidavit, it is argued on behalf of the plaintiff that the plaintiff has been treated differently to other claimants without reason or explanation.
The defendants argues that although it is possible to expand or give additional reasons over those afforded when securing the renewal of the summons, in resisting the application to set aside the summons, nevertheless such reasons should not be contradictory. The defendants acknowledge that there is no line of jurisprudence in this regard, however, argues that it is self-evident that contradictory reasons should not be entertained by the Court. I did not understand the plaintiff to argue otherwise but rather the plaintiff's argument was to the effect that there was, in fact, no contradiction between the two affidavits given the fact that the first affidavit of Mr. Noble on 29th June 2017, at Para. 4 referred to the reasons for not renewing the summons following the expiry of the initial twelve month period. Paragraph 4 of the first affidavit was not therefore dealing with why the summons was not served within the initial twelve month period. Counsel for the plaintiff acknowledges that there may well be a lapse in failing to identify...
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