Farrell v RAS Medical Ltd [Trading as Auralia Clinic] and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 24 June 2024
• Neutral Citation: [2024] IEHC 369
• Docket Number: 2022 606 P

Between

Lyndsey Farrell

Plaintiff

and

Ras Medical Ltd (Trading as Auralia Clinic)

Ahmed Ramzi Salman

Shadab Imtiyaz Ahmad

Defendants

[2024] IEHC 369

2022 606 P

THE HIGH COURT

Default judgment – Unless order – Order 27, rule 15 of the Rules of the Superior Courts – Defendants seeking to set aside a default judgment – Whether special circumstances existed which explained and justified the failure to deliver and file the defence on time

Facts: The defendants, RAS Medical Ltd, Mr Salman and Mr Ahmad, applied to the High Court to set aside a default judgment. The default judgment was said to have come into effect in circumstances where the defendants failed to deliver and file a defence to the proceedings within the time period specified in a so-called “unless order” (an order made pursuant to Order 27, rule 9 of the Rules of the Superior Courts): an “unless order” is one which extends time for delivery of a defence, subject to a proviso that in the event that the defendant fails to deliver and file the defence within that time period, the plaintiff shall have liberty to enter judgment in default (without further order). The proceedings took the form of a personal injuries action. The claim arose out of the provision of cosmetic surgery to the plaintiff, Ms Farrell, on two dates in 2020. The resolution of the set aside application required the court to consider the following three issues. The first issue concerned the circumstances in which the original “unless order” came to be amended. This required consideration of whether it is permissible for one party to apply unilaterally to have an order amended without reference to the other party. The second issue was whether the criteria under Order 27, rule 15(2) had been met. This required consideration of whether “special circumstances” existed which explained and justified the failure to deliver and file the defence on time. The third issue only arose if the amendment to the original order was valid. The issue was the identification of the precise date upon which the defence should have been delivered and filed.

Held by Simons J that the judgment in default against the first defendant would be set aside pursuant to Order 27, rule 15. Simons J held that there were “special circumstances” in existence which explained and justified the failure to deliver and file the defence within the time specified under the “unless order”. Simons J held that those “special circumstances” comprised the medical emergency suffered by the defendants’ solicitor in June 2023 and his restricted ability to work in the weeks prior to 4 September 2023. Simons J held that those “special circumstances” would be recited in the order of the court. Simons J held that an ancillary order would be made extending the time for the delivery and filing of a defence. Simons J held that he would discuss the precise form of the order with counsel.

Simons J held that the order of 4 July 2023, which purported to amend the original order, would be set aside. Simons J held that the procedure by which the amending order was obtained was irregular. Simons J noted that the plaintiff no longer sought to stand over the order. Simons J found that the practical consequence of setting aside the amending order would be that no default judgment crystallised as against the second and third defendants.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 24 June 2024

INTRODUCTION

1 This ruling is delivered in respect of an application to set aside a default judgment. The default judgment is said to have come into effect in circumstances where the defendants failed to deliver and file a defence to the proceedings within the time period specified in a so-called “ unless order”.

2 It should be explained that the term “ unless order” will be deployed throughout this ruling to describe an order made pursuant to Order 27, rule 9 of the Rules of the Superior Courts. An “ unless order” is one which extends time for delivery of a defence, subject to a proviso that in the event that the defendant fails to deliver and file the defence within that time period, the plaintiff shall have liberty to enter judgment in default (without further order). Put otherwise, a plaintiff is entitled to a default judgment “ unless” the defence is delivered and filed within the extended time period allowed by the court.

3 The resolution of the set aside application in the instant case requires the court to consider the following three issues. The first issue concerns the circumstances in which the original “ unless order” came to be amended. This requires consideration of whether it is permissible for one party to apply unilaterally to have an order amended without reference to the other party. The second issue is whether the criteria under Order 27, rule 15(2) have been met. This requires consideration of whether “ special circumstances” existed which explain and justify the failure to deliver and file the defence on time. The third issue only arises if the amendment to the original order is valid. The issue is the identification of the precise date upon which the defence should have been delivered and filed.

PROCEDURAL HISTORY

4 The within proceedings take the form of a personal injuries action. The claim arises out of the provision of cosmetic surgery to the plaintiff on two dates in 2020. The personal injuries summons was issued out of the Central Office of the High Court on 15 February 2022. As is explained therein, the summons had been issued prior to the plaintiff having the benefit of an independent expert report confirming that there were reasonable grounds for bringing an action in professional negligence. The summons was issued to preserve the plaintiff's position in respect of the limitation period. An independent expert report was subsequently obtained, and the plaintiff's solicitor delivered further particulars in July 2022. The affidavit of verification was filed in September 2022.

5 Thereafter, the defendants' solicitor sought certain medical records from the plaintiff in advance of delivering a defence. The plaintiff's solicitor treated this as a request for voluntary discovery and furnished medical records from the plaintiff's general practitioners in two tranches in October 2022 and March 2023, respectively.

6 On 15 March 2023, the plaintiff's solicitor wrote to the defendants' solicitor seeking the delivery of a defence. As required under Order 27, rule 10, the letter confirmed that the plaintiff would consent to the late delivery of a defence within twenty-eight days of the date of the letter. It seems that no response was received to this correspondence.

7 On 11 May 2023, the plaintiff's solicitor issued a motion for judgment in default of defence. This motion was returnable before the High Court on 19 June 2023.

8 Prior to the return date, there were discussions between counsel for the respective parties and it was agreed that the motion would be dealt with on consent. More specifically, it was agreed that an “ unless order” would be made which would allow the defendants a period of six weeks within which to deliver their defence, with judgment to be entered in the event that this did not occur.

9 It should be explained that an order of this type may only be made by a judge and cannot be made by the registrar (as mistakenly suggested by the plaintiff's solicitor in her affidavit). It is a judicial function. Order 27, rule 9 provides that the court must be satisfied, for reasons to be recited in the order, that it is necessary in the interests of justice that the time for delivery of the defence should be extended. The court must, to the extent possible, determine the specific relief claimed in the statement of claim to which it considers the plaintiff to be entitled in the event of the failure of the defendant to deliver a defence.

10 On the return date of 19 June 2023, an “ unless order” was made on consent before the High Court (Dignam J.). This order was subsequently perfected, i.e. drawn up by the registrar, on 21 June 2023. This order will be referred to as “ the original order”.

11 The original order is directed to only one of the three defendants, i.e. the first named defendant. The plaintiff maintains the position that the order is erroneous and does not reflect the consent terms agreed between counsel for the respective parties. Importantly, the order accurately reflects the application actually made by counsel to the court. The application had been moved by counsel for the plaintiff. Counsel had, seemingly through inadvertence, sought an order against the first named defendant alone.

12 It is at this point that the procedural history takes an unusual turn. Rather than simply write to the other side and seek their consent to the correction of the order under the slip rule (Order 28, rule 11), the plaintiff's side instead made an ex parte application to the High Court (Dignam J.) on 4 July 2023 to have the order amended. The digital audio recording of the application indicates that the judge was told, mistakenly, that the application to amend was on consent. The consequences of this are addressed under the next heading below (at paragraphs 28 and onwards).

13 The normal course in circumstances where an order has been amended is that a revised version of the original order is drawn up. This revised order will state clearly on its face that it has been amended and will state the date of the amendment. The revisions are then indicated by striking out or underlining text, as appropriate.

14 For some reason, however, this was not the approach adopted by the registrar dealing with the matter in July 2023. Instead, a fresh order was drawn up on 6 July 2023. This order will be referred to as “ the amending order”.

15 The operative part of the amending order reads as follows:

“IT IS ORDERED that all references in the...