Chandler v The Minister for Defence

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 09 June 2022
• Neutral Citation: [2022] IECA 132
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2020/6

Between/

Frank Chandler

Plaintiff/Appellant

and

The Minister for Defence, Ireland and The Attorney General

Defendants/Respondents

[2022] IECA 132

Whelan J.

Faherty J.

Binchy J.

Record Number: 2020/6

THE COURT OF APPEAL

Renewal of summons – Personal injuries – Interests of justice – Appellant appealing against the judgment and order setting aside the renewal of the appellant’s personal injuries summons – Whether the interests of justice required that the order be set aside

Facts: The plaintiff/appellant, Mr Chandler, worked for the defendants/respondents, the Minister for Defence, Ireland and the Attorney General, in the Irish Naval Service from 1983 and was stationed in Cork. As part of his employment he underwent regular medical assessment (including for, the plaintiff said, his risk for cardiovascular disease). The plaintiff alleged that his medical advisors, all of whom were servants or agents of the defendants, became aware that he was suffering from very high blood pressure but that notwithstanding same they failed to provide him with an appropriate or acceptable standard of care with regard to his medical condition. The plaintiff suffered a heart attack on 7 December 2013 and he alleged that he sustained the said injury because of the aforesaid failure on the part of the defendants, their servants or agents. As a result of his injury the plaintiff was out of work from December 2013 to July 2015. He retired from the Naval Service in or about July 2016. The plaintiff appealed to the Court of Appeal against the judgment and order of the High Court (Barrett J) setting aside the renewal of the plaintiff’s personal injuries summons. In oral submissions, counsel for the plaintiff distilled the plaintiff’s seventeen grounds of appeal to three broad arguments, namely that the trial judge erred: (1) in finding that no “good reason” had been advanced to support the renewal of the summons; (2) in finding that the plaintiff’s solicitor’s letter of 26 September 2017 could not assist the plaintiff in refuting the application to set aside the renewal of the summons; and (3) in holding that the defendants would be prejudiced by the renewal. The plaintiff asserted that case law supported his argument that Barrett J was in error in setting aside the renewal. The defendants argued that the approach of the Judge was in accordance with the relevant authorities.

Held by Faherty J that the finding of the motion Judge that no good reason had been offered for the renewal of the summons was not supported by the evidence. In Faherty J’s judgement, the letter of 26 September 2017, and the nature of the defendants’ response to that correspondence, constituted the good reason sufficient for the Court to consider whether, when the matter is looked at in the round, the interests of justice (which must factor in the relevant prejudice an adverse outcome will have for each side) warrant the grant or refusal of the renewal of the summons. Faherty J held that the question to be addressed was the extent to which the delays on the part of the plaintiff had or were likely to cause prejudice or hardship to the defendants. Faherty J observed that none of the defendants’ concerns (which related to historic records and treatment) were caused by the failure to serve the proceedings after Dr Kurbaan’s report came to hand on 23 November 2017, or indeed by the failure between March 2018 and September 2018 to seek to extend the time for service. Faherty J held that those concerns would arise even if the proceedings had been served within the requisite timeframe. Faherty J held that the defendants’ concern regarding their ability to defend the proceedings was alleviated to some significant regard by the likelihood that their medical witnesses as to fact would be largely reliant on their medical notes.

Faherty J held that the interests of justice in the case required that the order of Barrett J be set aside together with an order renewing the personal injuries summons for a period of six months from the date of the order of the Court. As the plaintiff had succeeded in his appeal, Faherty J held that he should be entitled to his costs.

Appeal allowed.

UNAPPROVED

Judgment of Ms. Justice Faherty dated the 9 ^th day of June 2022

1 . This is an appeal against the judgment and Order of the High Court (Barrett J.) setting aside the renewal of the plaintiff's personal injuries summons.

2 . The procedural framework relevant to the appeal is found in Order 8, r.1 of the Rules of the Superior Courts (“RSC”) (as it stood prior to its amendment under S.I. 482/2018, which came into operation on 11 January 2019). It provides:

“No original summons shall be in force for more than twelve 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 twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons may be made to the Court. The Court or the Master, as the case may be, 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 by renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons…”

3 . Order 8, rule 2 provides:

“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.”

Background and procedural history

4 . The substantive proceedings allege that the plaintiff worked for the defendants in the Irish Naval Service from 1983 and was stationed in Cork. As part of his employment he underwent regular medical assessment (including for, the plaintiff says, his risk for cardiovascular disease). The plaintiff alleges that his medical advisors all of whom are servants or agents of the defendants became aware that he was suffering from very high blood pressure but that notwithstanding same they failed to provide him with an appropriate or acceptable standard of care with regard to his medical condition. The plaintiff suffered a heart attack on 7 December 2013 and he alleges that he sustained the said injury because of the aforesaid failure on the part of the defendants, their servants or agents. As a result of his injury the plaintiff was out of work from December 2013 to July 2015. He retired from the Naval Service in or about July 2016. According to the affidavit sworn by the plaintiff's solicitor Mr. Kevin O'Keeffe for the purposes of the ex parte application to renew the personal injuries summons, the plaintiff did not have knowledge that his personal injuries were attributable in whole or in part to any act of the defendants until sometime after the plaintiff returned to work in July 2015.

5 . On 5 February 2017, prior to the issuing of proceedings, the plaintiff's medical records were requested from the first defendant and same were duly provided. Thereafter, on foot of advices received from senior counsel separately on 17 February 2017 and 2 March 2017 regarding the issuing of proceedings, a personal injuries summons issued on 13 March 2017. It appears therefore that the proceedings were issued on a precautionary basis to preserve the plaintiff's right to litigate the dispute having regard to the Statute of Limitations. According to Mr. O'Keeffe, the advice given to the plaintiff was to issue the proceedings but not to serve same pending the carrying out of appropriate medico-legal investigations.

6 . It appears that Dr. A.S. Kurbaan, Bart's Heart Centre, St. Bartholomew's Hospital, West Smithfield, London was initially approached in April 2017. He agreed in August 2017 to act in the case and was duly engaged on 25 August 2017 for the purposes of providing a medico-legal report. Albeit initially said by Mr. O'Keeffe in his affidavit of 7 September 2018 to have been received on 25 September 2017, in his later replying affidavit in response to the defendant's motion, Mr. O'Keeffe avers that Dr. Kurbaan's report was procured on 23 November 2017.

7 . Some two months or so prior to receiving Dr. Kurbaan's report, and some six months post the institution of the proceedings, on 26 September 2017 the plaintiff's solicitor wrote to the first defendant at the Naval Base in Cork in the following terms:

“We act as Solicitors on behalf of the above named who has instructed us concerning a cardiac difficulty which has arisen during the currency of his employment with you. It is clear from our client's instructions that our client has suffered personal injuries, loss and other damage as a result of the failure to adequately treat his cardiac difficulty over the years of service with you notwithstanding the evidence to support hypertension and other clinical issues. The purpose of this letter is to call upon you to admit liability for the injuries suffered by our client and to undertake to adequately compensate him for the loss and damage suffered as a result of same. May we respectfully suggest that you arrange to pass this letter on to your insurers/legal advisors. We await hearing from you”.

8 . The letter of 26 September 2017 was duly passed on by the defendants to the State Claims Agency. On 13 November 2017, the State Claims Agency requested further details. These were forwarded by the plaintiff's solicitors by way of letter and enclosure marked “without prejudice” on 29 November 2017. That correspondence was duly acknowledged by the State Claims Agency on 29 November 2017 advising that the matter was receiving attention.

9 . By letter dated 30 November 2017, the State Claims Agency wrote to the plaintiff's solicitors in the following terms:

“Thank you...