Eileen Chambers v Cyril Kenefick

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 11 November 2005
• Neutral Citation: [2005] IEHC 402
• Court: High Court
• Docket Number: [No. 8864 P/2002]
• Date: 11 November 2005

[2005] IEHC 402

THE HIGH COURT

[No. 8864 P/2002]

Chambers v Kenefick

BETWEEN

EILEEN CHAMBERS

PLAINTIFF

and

CYRIL KENEFICK

DEFENDANT

ADOPTION ACT 1991 S5(1)(iii)(II)

ADOPTION ACT 1991 S10

ADOPTION ACT 1952 S13

ADOPTION ACT 1991 S1

ADOPTION ACT 1952 S15

ADOPTION ACT 1952 S42

GLENKERRIN HOMES v DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP CLARKE 26.4.2007 2007 IEHC 298

ABRAHAMSON v INCORPORATED LAW SOCIETY OF IRELAND 1996 1 IR 403

WILEY v REVENUE COMMISSIONERS 1993 ILRM 482

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998 869 - 904

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 2002 1 IR 1122002 1 ILRM 481 2003/24/5479

ADOPTION ACT 1991 S6

PRACTICE AND PROCEDURE

Summons

Renewal - Failure to serve summons while it was in force - Order for renewal made by the High Court - Application to set aside renewal - Whether plaintiff advanced good reason to renew summons - Balance of justice - Prejudice - Baulk v Irish National Insurance Co Ltd [1969] IR 66, McCooey v Minister for Finance [1971] IR 159, O'Brien v Fahy (Unrep, SC, 21/3/1997) and Roche v Clayton [1998] 1 IR 596 considered; Behan v Bank of Ireland (Unrep, Morris J,14/12/995) not followed - Rules of the Superior Courts 1986 (SI 15/1986), O 8, r 2 - Renewal of summons affirmed (2002/8864P - Finlay Geoghegan J - 11/11/2005) [2005] IEHC 402Chambers v Kenefick

1 Ms. Justice Finlay Geoghegandelivered the 11th day of November, 2005

2 This is an application brought on behalf of the defendant to set aside an order made by the High Court (Kearns, J.) on 15 December 2003 renewing a summons which had been issued on 25 June 2002. The application made to Kearns, j, was based upon an affidavit of the plaintiff's solicitor Mr. Denis McMahon from which it appears that the summons was issued on 25 June 2002. It is a plenary summons with a claim for personal injuries, loss and damage alleged to have been suffered by reason of the alleged negligence of the defendant. A copy of the summons was sent to the Medical Protection Society, who are the defendant's insurers, on 2 September 2002, who were requested to nominate solicitors to accept service, or in the alternative it was indicated that the summons would be served directly on the defendant.

3 On 12 December 2002 the defendant's now solicitors, Matheson Ormsby Prentice wrote indicating that they had authority to accept service. Thereafter there was correspondence between the two solicitors, principally in relation to the production of medical records, and Mr. McMahon stated that by reason of inadvertence and oversight on his part the plenary summons was not served on the defendant's solicitors within the time limited by the Superior Court Rules. He asserted in his affidavit that there was no element of surprise or prejudice to the defendant and sought to explain his inadvertence and oversight in relation to being focussed on seeking to obtain relevant medical records

4 On 5 March 2004 the original summons and the order made was served on the defendant's solicitors. On 8 April 2004 the defendant's solicitor entered a conditional appearance. On 6 January 2005 the statement of claim was delivered by the plaintiff's solicitor, and on 27 January 2005 a motion was issued on behalf of the defendant seeking to set aside the order of Kearns, J.

5 The first issue which I have to address is, what is the onus on a defendant who seeks to set aside an order for renewal of a summons made ex parte. The application is brought under Order 8 rule 2, which simply 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". Mr. Tynan SC on behalf of the plaintiff submitted that the onus on the defendant is exclusively as set out by Morris, J. (as he then was) in the case of James Behan and The Governor and Company of the Bank of Ireland, (Unreported, The High Court, 14 December 1995). In that judgment Morris, J. stated at p. 3

6 "In my view in moving an application of this nature the Defendants takes upon itself the onus of satisfying the Court that there are facts or circumstances in the case which, if the Court which made the Order in the first instance, ex parte, had been aware it would not have made the Order. It is clear, in my view beyond dispute, that this application is not to be dealt with on the basis that it is an appeal from the original Order and accordingly it is incumbent upon the moving party to demonstrate that facts exist which significantly alter the nature of the Plaintiff's application to the extent of satisfying the Court that, had these facts been known at the original hearing, the Order would not have been made."

7 The further submission was made by Counsel on behalf of the plaintiff that there are no facts on this application put before the Court which significantly alter the nature of the plaintiff's application as made to Kearns, J. on 15 December 2003.

8 I accept that latter submission and therefore it is necessary for me to consider whether the approach of Morris, J. sets out in full the proper approach of the High Court on hearing an application under O. 8, r. 2. With respect to Morris, J. it appears to me that it does not set out the full circumstances in which the Court may consider an application under O., 8 r. 2. It appears to me that in addition to the approach set out by Morris, J. it is open to a defendant, by...