O'Connor v Health Service Executive

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barr
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] IEHC 551
• Docket Number: [2015 No. 9826 P]
• Date: 30 October 2020

BETWEEN

ELIZABETH O'CONNOR

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2020] IEHC 551

Barr

[2015 No. 9826 P]

THE HIGH COURT

Personal injury – Renewal of summons – Jurisdiction – Defendant seeking an order setting aside the renewal of the personal injury summons – Whether the High Court judge who heard the renewal application had jurisdiction to make an order granting a further renewal of the summons

Facts: The defendant, the Health Service Executive, applied to the High Court seeking an order pursuant to O. 8, r. 2 of the Rules of the Superior Courts (RSC), setting aside the order of MacGrath J of 15th July, 2019, which order renewed the personal injury summons for a further period of three months pursuant to the provisions of O. 8, r. 1. The defendant submitted that the High Court judge who heard the renewal application in July 2019, did not have jurisdiction to make an order granting a further renewal of the summons, due to the fact that it had already been renewed by order of the Master of the High Court dated 22nd November, 2016. It was submitted that under O. 8 of the RSC, which was inserted into the rules by virtue of S.I. 482/2018 and which took effect from 11th January, 2019, it was only possible to have one renewal of a summons. Therefore, it was submitted that the court did not have jurisdiction to renew the summons a second time, as it had purported to do in July 2019. In the alternative, it was submitted that given the facts in this case, the plaintiff, Ms O’Connor, had not established “special circumstances” as required by the rules such as to justify a renewal of the summons. It was submitted on behalf of the plaintiff that as this was a negligence case, which alleged professional negligence on the part of the surgeon who had carried out surgical treatment to the plaintiff, there was a clear requirement at law that the summons should not be served until the plaintiff and her legal advisors were in possession of a report from a suitably qualified expert giving the opinion that there had been negligence on the part of the professional concerned. It was submitted that such report had only come to hand in December 2018; accordingly it would not have been appropriate to serve the summons before that time and in such circumstances it was appropriate that the court had granted a renewal of the summons in July 2019.

Held by Barr J that the interpretation of O. 8, r. 1 as set out by Meenan J in Murphy & Anor v A.R.F. Management Limited & Ors [2019] IEHC 802 is the correct interpretation of this rule; accordingly, it is clear that there can only be one renewal of a summons under O. 8, r. 1. As the summons in this case had already been renewed by order of the Master of the High Court dated 22nd November, 2016, Barr J held that the court did not have jurisdiction to grant a further renewal of the summons by virtue of the application made to it in July 2019. As the court did not have jurisdiction to grant a second renewal of the summons, Barr J held that he would set aside the renewal of the summons which had been granted by virtue of the order made on 15th July, 2019. As Barr J had reached the view that MacGrath J did not have jurisdiction to make the order extending the time for service of the summons, which was made in July 2019, the issue of whether there were special circumstances justifying such renewal did not arise. However, even if Barr J was wrong in his finding on the jurisdiction point, he was not satisfied that the plaintiff had established that there were special circumstances justifying the renewal of the summons in July 2019.

Barr J granted the application made by the defendant to set aside the renewal of the summons, which was effected by order of the High Court on 15th July, 2019.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 30th day of October, 2020

Introduction

1 In this application, the defendant seeks an order pursuant to O. 8, r. 2 of the Rules of the Superior Courts, setting aside the order of MacGrath J. of 15th July, 2019, which order renewed the personal injury summons for a further period of three months pursuant to the provisions of O. 8, r. 1.

2 In a nutshell, the defendant submitted that the learned High Court judge who heard the renewal application in July 2019, did not have jurisdiction to make an order granting a further renewal of the summons, due to the fact that it had already been renewed by order of the Master of the High Court dated 22nd November, 2016. It was submitted that under the new O. 8 of the RSC, which was inserted into the rules by virtue of S.I. 482/2018 and which took effect from 11th January, 2019, it was only possible to have one renewal of a summons. Therefore, it was submitted that the court did not have jurisdiction to renew the summons a second time, as it had purported to do in July 2019.

3 In the alternative, it was submitted that given the facts in this case, the plaintiff had not established “special circumstances” as required by the rules such as to justify a renewal of the summons.

4 In summary, it was submitted on behalf of the plaintiff, that as this was a negligence case, which alleged professional negligence on the part of the surgeon who had carried out surgical treatment to the plaintiff, there was a clear requirement at law that the summons should not be served until the plaintiff and her legal advisors were in possession of a report from a suitably qualified expert giving the opinion that there had been negligence on the part of the professional concerned. It was submitted that such report had only come to hand in December 2018. Accordingly it would not have been appropriate to serve the summons before that time and in such circumstances it was appropriate that the court had granted a renewal of the summons in July 2019.

5 That is just an outline of the arguments submitted on behalf of each of the parties. These arguments will be dealt with in greater detail later in the judgment.

Chronology

6 On 15th August, 2013, the plaintiff gave birth to a child by way of caesarean section at St. Luke's Hospital, Kilkenny. In the following months and into the following year, the plaintiff developed problems with the functioning of her kidney and required operative treatment at a different hospital.

7 It is the plaintiff's case that on 19th December, 2014, she was told by the surgeon, who had carried out the caesarean section, that the damage to her kidneys was something that “ought not to have occurred”. As a result of that conversation, the plaintiff consulted with her solicitor. A personal injury summons was issued on her behalf on 25th November, 2015. As the summons had issued without the benefit of the plaintiff's medical records, or the benefit of an expert's report in relation to liability, it was vague in relation to the allegations that it made against the defendant. It had been issued on a protective basis so as to protect the plaintiff's interests and prevent her cause of action becoming statute barred.

8 Thereafter, the plaintiff's solicitor took up copies of the plaintiff's medical records from both St. Luke's Hospital in Kilkenny and the hospital where she had received further treatment in respect of her kidney. In October 2016, the plaintiff's solicitor wrote to an expert in the UK, Professor Lees, asking him to furnish a report on liability.

9 On 17th November, 2016, an ex parte docket was submitted seeking renewal of the summons by the Master of the High Court. This was made returnable for 22nd November, 2016. It was based on a grounding affidavit sworn by the plaintiff's solicitor on 16th November, 2016. In that affidavit he stated that the summons had not been served as a report was awaited from the expert in respect of the liability issues. He stated that an expert “has been engaged”.

10 By order dated 22nd November, 2016, the Master of the High Court renewed the personal injury summons for a period of six months from the date of the renewal. That order was perfected on 25th November, 2016. Under the terms of that order, the personal injury summons had been renewed for a further period until 22nd May, 2017.

11 The plaintiff's solicitor has very candidly stated that he was of the mistaken belief that the order made by the Master renewing the summons was for a period of twelve months, rather than six months. On the 7th November, 2017, the plaintiff's solicitor received the report from Professor Lees. On 13th November, 2017, the plaintiff's solicitor served the personal injury summons on the defendant.

12 By letter dated 22nd December, 2017, which the plaintiff's solicitor received on 2nd January, 2018, Messrs. Hayes Solicitors wrote stating that they acted on behalf of the defendant. They indicated that they had been furnished with a copy of a personal injury summons which had issued on 25th November, 2015. It had been certified as being a true copy on 13th November, 2017. Their letter continued in the following terms:-

“As you are aware, the personal injury summons should be served within twelve months of issue. In the circumstances, we would be grateful if you could let us have proof of service and the date of service of the personal injury summons at your earliest possible convenience. Once we are in receipt of evidence that the personal injury summons was served within twelve months of the date of issue, we will take steps to enter an Appearance.”

13 When the defendant's solicitor did not receive any response to their letter of 22nd December, 2017, they wrote further reminder letters on 14th February, 2018, 14th May, 2018 and 27th August, 2018, but without receiving any response thereto.

14 According to the plaintiff's solicitor, in 2018 he received advices from counsel that the report which had been furnished by Prof. Lees would not be adequate to deal with the issues of negligence that were...