Downes v TLC Nursing Home Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] IEHC 465
• Docket Number: 2017 No. 6171 P.
• Court: High Court
• Date: 30 October 2020

BETWEEN

ANNE MARIE DOWNES

PLAINTIFF

AND

TLC NURSING HOME LIMITED

DEFENDANT

[2020] IEHC 465

Garrett Simons

2017 No. 6171 P.

THE HIGH COURT

Renewal of summons – Ex parte order – Application to set aside – Defendant seeking to set aside an ex parte order renewing the summons issued in the proceedings – Whether there were special circumstances which justified an extension of time within which to apply for leave to renew the summons

Facts: The defendant, TLC Nursing Home Ltd, applied to the High Court to set aside an ex parte order which had the effect of renewing the summons issued in these proceedings for a period of three months. The application to set aside was made pursuant to Order 8, rule 2 of the Rules of the Superior Courts. Three matters were relied upon by the plaintiff, Ms Downes, in this case as representing “special circumstances” which justified an extension of time to apply for leave to renew the summons. First and foremost, it was said that the delay in serving the summons was attributable to inadvertence on the part of the legal advisors acting for the plaintiff; there had been a change in representation, with a new firm of solicitors only coming on record for the plaintiff on 17 June 2019. Secondly, the attitude of the defendant to the disclosure of medical records was criticised, and was said to have “very severely hampered” the plaintiff’s efforts to pursue the proceedings. Thirdly, and more broadly, it was said that the balance of justice favoured allowing the renewed summons to stand in that it would present difficulties for the plaintiff in terms of the Statute of Limitations were it to be set aside.

Held by Simons J that the plaintiff had failed to demonstrate that there were “special circumstances” which justified an extension of time within which to apply for leave to renew the summons for the purposes of Order 8, rule 1. Simons J held that none of the three matters put forward as representing “special circumstances” reached that threshold.

Simons J held that he would make an order pursuant to Order 8, rule 2 setting aside the order renewing the summons which had been made ex parte on 1 July 2019.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 30 October 2020

INTRODUCTION 1

CHRONOLOGY 3

PROCEDURAL HISTORY… 3

REVISED VERSION OF ORDER 8 …………………..9

GROUNDING AFFIDAVIT 15

APPLICATION TO SET ASIDE 16

“SPECIAL CIRCUMSTANCES” 17

(i). Inadvertence on the part of legal advisors 17

CONCLUSION AND FORM OF ORDER………….30

INTRODUCTION

1 This matter comes before the High Court by way of an application to set aside an ex parte order which had the effect of renewing the summons issued in these proceedings for a period of three months. The application to set aside is made pursuant to Order 8, rule 2 of the Rules of the Superior Courts. Order 8 has been amended with effect from 11 January 2019. It will be necessary to consider the implications of these amendments in some detail in this judgment.

2 For introductory purposes, however, it is sufficient to note that a twofold test now governs an application to renew a summons which is made after the expiration of a twelve-month period from the date of issue. First, the court must be satisfied that there are “special circumstances” which justify an extension of time to apply for leave to renew the summons. Secondly, the court must be satisfied either that reasonable efforts have been made to serve the summons, or that there is other “good reason” for renewing the summons.

3 Three matters are relied upon by the plaintiff in the present case as representing “special circumstances”. First and foremost, it is said that the delay in serving the summons is attributable to inadvertence on the part of the legal advisors acting for the plaintiff. There had been a change in representation, with a new firm of solicitors only coming on record for the plaintiff on 17 June 2019. Secondly, the attitude of the defendant to the disclosure of medical records is criticised, and is said to have “very severely hampered” the plaintiff's efforts to pursue the proceedings. Thirdly, and more broadly, it is said that the balance of justice favours allowing the renewed summons to stand in that it would present difficulties for the plaintiff in terms of the Statute of Limitations were it to be set aside.

CHRONOLOGY

4 The key events in the chronology are set out in tabular form below. A more detailed narrative is then provided under the next heading.

10 July 2015	Date of death
29 April 2017	Solicitor's letter requesting release of medical records
6 July 2017	PIAB authorisation
6 July 2017	PIAB letter to nursing home
7 July 2017	Proceedings issue out of Central Office of the High Court
4 September 2017	Telephone conversation between the plaintiff's first firm of solicitors and insurance loss adjuster
5 July 2018	Order of Master renewing summons for six months
4 January 2019	Summons lapses
17 June 2019	Notice of change of solicitor filed
1 July 2019	Order for renewal of Summons for a period of three months granted ex parte by the High Court
30 July 2019	Summons served by registered post
8 January 2020	Motion issued by defendant seeking to set aside order of renewal

PROCEDURAL HISTORY

5 The within proceedings arise out of the death of Mr. Joseph Downes (“ the deceased”) on 10 July 2015. The proceedings are brought by the deceased's adult daughter, Anne Marie Downes ( “ the plaintiff”). The defendant to the proceedings is the owner and operator of the nursing home ( “ the nursing home”) in which the deceased had resided for approximately three months until shortly before his death. The deceased had subsequently been transferred to hospital, and ultimately died in hospital some ten days later.

6 There are two elements to the claim: (i) a claim for personal injuries (including nervous shock) said to have been sustained by the plaintiff personally as a result of the death of her father; and (ii) a fatal injuries claim pursuant to Part IV of the Civil Liability Act 1961 (as amended). This latter claim is taken by the plaintiff on her own behalf and on behalf of the other statutory dependants.

7 The gravamen of the case pleaded against the nursing home is to the effect that the nursing home had been negligent in their care of the deceased.

8 The plaintiff sought and obtained an authorisation to issue the proceedings from the Personal Injuries Assessment Board ( “ PIAB”). The authorisation is dated 6 July 2017. It appears that PIAB took the view that the claim was outside its statutory remit by virtue of section 3(d) of the Personal Injuries Assessment Board Act 2003. This section provides that the legislation does not apply to a civil action arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person, or the provision of any medical advice or treatment to a person.

9 The proceedings were instituted on 7 July 2017, by the issuing of a personal injuries summons out of the Central Office of the High Court. It is relevant to one of the arguments relied upon by the plaintiff to note that the proceedings were issued within two years of the date of death of the deceased, and would thus appear to have been issued within the relevant two-year limitation period prescribed under section 6 of the Statute of Limitations (Amendment) Act 1991. (cf. Hewitt v. Health Service Executive [2016] IECA 194; [2016] 2 I.R. 649).

10 The summons states on its face that it had been issued on a precautionary basis. It is expressly stated at paragraph (3) of the summons that it would be necessary to serve the summons for the purposes of applying for discovery of the deceased's medical records. In the event, however, the summons was not served within the twelve-month period provided for under Order 8, rule 1(1). Shortly before the expiration of this twelve-month period, the firm of solicitors then acting for the plaintiff made an ex parte application to the Master of the High Court for leave to renew the summons. The Master made an order on 5 July 2018 renewing the summons for a period of six months from the date of the order. (The application predated the coming into effect of the revised Order 8, rule 1, and hence the maximum period allowed for a renewal was still six months not three months).

11 The summons was not served within this extended period either. The summons thus lapsed on 4 January 2019. It should be explained that the summons did not become a “nullity” after that date, but it would not be in force for the purpose of service after that date unless renewed by leave of the court (see, by analogy, Baulk v. Irish National Insurance Company Ltd [1969] I.R. 66 at 71).

12 Some months later, on 17 June 2019, a notice of change of solicitor was filed in the Central Office by a new firm of solicitors. (The notice is dated 19 June 2019 but appears to have been filed two days earlier). On the same date, an affidavit was filed in support of an application for an extension of time to apply for leave to renew the summons. The application was subsequently made ex parte to the High Court (Murphy J.) on 1 July 2019.

13 The court acceded to the application, and the operative part of the order reads as follows.

IT IS ORDERED pursuant to Order 8 Rule 1 of the Rules of the Superior Courts that the said Summons be extended and hence renewed for a period of three months from the date hereof in the circumstances where the unwillingness of the Defendant to provide reports and issues around the transfer of files between solicitors justify an extension

14 The application had been grounded on the affidavit of a partner in the second firm of solicitors. Given the nature of the arguments made before me on the application to set aside the order, it is necessary to refer in some detail to the content of that...