Ellahi v The Governor of Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IEHC 923
• Docket Number: [2016/6845 P.]
• Court: High Court
• Date: 20 December 2019

BETWEEN

FAISAL ELLAHI

PLAINTIFF

AND

THE GOVERNOR OF MIDLANDS PRISON AND OTHERS

DEFENDANT

[2019] IEHC 923

Brian O'Moore

[2016/6845 P.]

THE HIGH COURT

Personal Injuries Summons – Extension – Order 8, rule 1 of the Rules of the Superior Courts – Plaintiff seeking to set aside an order – Whether special circumstances were properly or correctly made out

Facts: The plaintiff, Mr Ellahi, applied to the High Court to set aside an order of Meenan J of the 4th February 2018. That order, made on an ex parte basis, specified that an order was made “pursuant to Order 8, rule 1 of the Rules of the Superior Courts that the Personal Injuries Summons in this case be extended and hence renewed for a period of three months from the date hereof in the circumstances where there was a delay caused by the Plaintiff changing solicitors justify an extension”. That last clause set out firstly the requirement of the rule as understood by Meenan J, that the order would reflect the reason why special circumstances were found by him to exist, and secondly the special circumstances actually argued for, by and on behalf of the plaintiff, in the application made in February 2019.

Held by O’Moore J that no special circumstances were properly or correctly made out or could not be properly or correctly made out. O’Moore J held that the basis of the order made by Meenan J fell away because of the failure to provide to the court a full account of matters. O’Moore J held that, on the authority of Whelan v H.S.E. (Kelly J, Unreported, High Court, 31st May 2017), the following two propositions were established: firstly, the question of prejudice on the part of the defendants, the Governor of Midlands Prison and others, did not in itself decide the fate of this application; secondly, the argument made by counsel for the plaintiff that the summons should be renewed because of the possibility that the claim would otherwise potentially be statute barred was not one that should succeed. O’Moore J did not think it was open to the plaintiff having made an application, particularly on an ex parte basis, on a certain ground (which was that the special circumstance was shown by the change in legal representation) then to shift their ground when that Order is challenged and to argue that there is a completely different good reason for justifying the extension of time; that is the case even if one telescopes the two tests for special circumstances or good reason into the one. However, O’Moore J’s view of the Order in its current form was that you do not so telescope the two tests and if he was right about that, then Allergan Pharmaceuticals (Ireland) Ltd v Noel Deane Roofing [2009] 4 I.R. 438 and Crowe v Kitara Ltd [2016] IECA 62 do not really carry the argument very far from the perspective of the plaintiff because both of those are expressly focused on the question of whether or not there is a good reason to renew the summons, not on the fundamental issue on this application which was whether or not special circumstances justifying the extension of time to make the application are to be so found.

O’Moore J held that he would make an order in terms of paragraph one of the notice of motion. Relief under paragraph two of the notice of motion was not pressed upon him therefore he did not intend to make an order in those terms.

Application granted.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 20th day of December, 2019.

1 This is an application to set aside an order of Meenan J. of the 4th February 2018. That order, made on an ex parte basis as is the norm, specified that an order is made “pursuant to Order 8, rule 1 of the Rules of the Superior Courts that the Personal Injuries Summons in this case be extended and hence renewed for a period of three months from the date hereof in the circumstances where there was a delay caused by the Plaintiff changing solicitors justify an extension”. That last clause is particularly significant because it sets out firstly the requirement of the rule as understood by Meenan J., that the order would reflect the reason why special circumstances were found by him to exist and secondly the special circumstances actually argued for, by and on behalf of the Plaintiff, in the application made in February of this year.

2 The affidavit before Meenan J. set out, not it has to be said in great depth, the reason why these special circumstances existed. In that regard I refer specifically to paragraph four, paragraph six and paragraph eight of the affidavit of Mr. Mathew Byrne sworn to ground the application in February. In paragraph four Mr. Byrne says that the Plaintiff originally instructed a different firm of solicitors (KOD Lyons Solicitors) and their address is given. Mr. Byrne goes on to say that the Plaintiff has now (and there is an emphasis in the application placed before me this week on the word “now”) decided to instruct different legal representation in respect of the proceedings herein. Mr. Byrne goes on to depose that the Plaintiff has now instructed Burns Nowlan Solicitors (and their address is given) in respect of these proceedings. At paragraph six he says that as a result of the change in the Plaintiff's legal representation, the summons was not served on the Defendants within the required period of time. It is for that reason that the renewal of the Personal Injury Summons is required for a further period of six months from the date of the Order as the summons expired on the 27th of July 2017. At eight Mr. Byrne goes on to say “further I say that no injustice would be done in granting the application and it is the Plaintiff who could potentially suffer injustice should the application and/or renewal not be granted”. That is, I think possibly a somewhat oblique reference to the circumstance which could arise in the event that the summons was not renewed, namely that the Statute of Limitations would be pleaded by the defendants. That issue however it is not made out in any great level of detail, it is not described as the reason for the application to renew or the justification for the application to renew and it is not, critically, the special circumstance recorded by the Registrar as justifying the order of Meenan J.

3 We now know somewhat more about the actual circumstances as far as the Plaintiff was concerned in respect of the service of the summons. In particular, if we look at it in sequence, we now know that on the 14th of July 2017, the solicitors then on record for the Plaintiff wrote to him in the Midlands Prison, Portlaoise in respect of these proceedings and while all of the letter is of some interest, the relevant portion is as follows. KOD Lyons said in the second paragraph of the letter:-

“Your summons is due to expire on the 26th of July and if it has not been served before that date an application will have to be made to renew same for a further period to allow it to be served. We note that you had instructed us not to take any further steps on your file and we are awaiting on you to revert to us with your instructions to either carry out further work on your behalf or to pass the file to another solicitor as nominated by you. If you have engaged another solicitor to look after this matter on your behalf, you might forward their details to us by return. On the other hand, you might confirm if you wish for us to serve the proceedings, a copy of which we enclose, or alternatively you might confirm if you wish us to make an application on your behalf to renew the summons for a further period. You might note that we are in the process of issuing our application to come off record on this matter and in the meantime you might confirm what you wish us to do.”

4 Now, as I read that correspondence, the Plaintiff was informed directly and I must say very properly by his solicitors at the time that while they were in the process of preparing or issuing an application to remove themselves as the legal representative of the Plaintiff in these proceedings, they were nonetheless giving him very cautious advice about the need to serve the summons, they were offering to serve the proceedings themselves, and were alternately offering to make an application to renew the summons for a further period. It is not explained by Mr. Byrne in either of his affidavits why the Plaintiff did not take up that offer or indeed what his reaction to that offer was, though one can take it that he did not instruct KOD Lyons at that point in time either to serve the proceedings or to make an application to renew the summons for a further period to facilitate service at some time in the future.

5 That correspondence is at odds with the stated reason given by Mr. Byrne in his affidavit seeking the renewal of the summons. That is a point that was made to me in argument. It is also a point that arises not by reference specifically to this letter but in general terms in the affidavit of Ms. Tuffy which grounds the current application. Again there are portions of that affidavit which are particularly relevant to this ruling. Firstly, at paragraph four of her affidavit, Ms. Tuffy sets out her chronology which is not disputed. The relevant five dates in the chronology are: firstly, that on the 23rd of March 2015 there was the alleged assault giving rise to the proceedings; secondly, that the summons issued on the 27th of July 2016; we are aware from the correspondence I have opened of the letter of the 14th of July 2017 offering to serve or seek an extension of time for the life of the summons and we are also aware from that correspondence that the 26th of July 2017 was the date by which the personal injury summons was to have been served. The next significant date as listed by Ms. Tuffy is the 12th of December 2017 where she indicates that Burns Nowlan, current solicitors for the Plaintiff, served a notice of change of solicitor “to be filed in due course” as it is put and...