Heffernan v Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 20 December 2004
• Neutral Citation: [2004] IEHC 408
• Docket Number: [2001 No.
• Court: High Court
• Date: 20 December 2004

[2004] IEHC 408

THE HIGH COURT

[Record No. 2001 11043P]

[2004] IEHC 408

HEFFERNAN v. RYAN

BETWEEN

DAMIEN HEFFERNAN

PLAINTIFF

AND

DESMOND RYAN AND LEONARD RYAN

DEFENDANTS

Citations:

RSC O.12 r26

RSC O.9 r2

RSC O.9r15

RSC O.84 r21(1)

STATUTE OF LIMITATIONS 1957 S11(2)(b)

RSC O.8 r1

WYLIE JUDICATURE ACTS 211

RSC (1905) O.IX r2

GRADY V KEARNEY 8 ICLR XLIV

COMMON LAW PROCEDURE (AMDT) (IRL) ACT 1853 S32

RSC (1905)

RSC O.19r15

TISDALL V HUMPHREY 1867 IRCL 1

RSC O.10

REYNOLDS V COLEMAN 1887 36 CH D 453

UWAYDAH V NOLAN & ORS UNREP BARRON 21.2.1997 1997/12/3898

LAURIE V CARROLL & ORS 98 CLR 310

Synopsis:

PRACTICE AND PROCEDURE

Service

Substituted service - Setting aside - Failure to effect personal service - Whether due care and diligence in effort to effect service - Whether service adequate - Whether service actually effected sufficient - Rules of the Superior Courts 1986 (SI 15/1986), O 9, r 2 - Service deemed good on one defendant and summons struck out for other (2001/11043P - Herbert J - 20/12/2004) [2004] IEHC 408 - [2005] 1 IR 32- [2005] 1 ILRM 457

Heffernan v Ryan

WORDS AND PHRASES

"Place of residence" - "House" - "Personally" - Rules of the Superior Courts 1986 (SI 15/1986), O 9, rr 2, 15 - Service deemed good on one defendant and summons struck out for other (2001/11043P - Herbert J - 20/12/2004) [2004] IEHC 408

Heffernan v Ryan

The defendants sought an Order pursuant to the provisions of Order 12 rule 26 RSC setting aside the purported service on them of a Plenary Summons issued on behalf of the plaintiff on the ground that personal service was not effected and accordingly the Summons was not properly served on them as required by the terms of Order 9 rule 2 RSC. The summons server employed on behalf of the plaintiff served two copies of the Summons on the daughter of the first named defendant, who was also the sister of the second named defendant at the first named defendants place of residence. The first named defendant was out of the jurisdiction at that time and the second named defendant did not reside at that address. By a cross motion the plaintiff sought an Order pursuant to the provisions of Order 9 rule 15 RSC declaring the service actually effected on each of the defendants to be sufficient.

Held by Herbert J. :

1. That due and reasonable diligence was exercised in endeavouring to effect personal service of the originating Summons in this case. Although the second named defendant did not reside at the address to which the Summons Server called, his sister made him aware that a Summons Server was seeking to serve proceedings on him and accordingly he either had or but for his own deliberate evasions would have had full knowledge of these proceedings. In the circumstances the service actually effected on the second named defendant was sufficient.

2. That the service actually effected on the first named defendant was not sufficient as that defendant was out of the jurisdiction at the moment of alternative service and accordingly the service of the Summons on that defendant should be set aside and, as the limitation period had expired, the proceedings against should be dismissed.

Reporter: L.O'S.

1 Mr. Justice Herbertdelivered the 20th day of December,2004

2 By a Motion on Notice, dated 20 ^th February, 2004, Desmond Ryan, Architect and, his son, Leonard Ryan, Bank Administrator, seek an Order pursuant to the provisions of Order 12 rule 26 of the Rules of the Superior Courts setting aside the purported service on them of a Plenary Summons issued on behalf of Damien Heffernan, a Network Engineer, on4 ^th July, 2001 and bearing Record No. 2001 11043P. Their ground is that this Originating Summons was not properly served on them or on either of them as required by the terms of Order 9 rule 2 of the Rules of the Superior Courts. By a cross motion dated 21 ^stJune, 2004 the Plaintiff, Damien Heffernan seeks an Order pursuant to the provisions of Order 9 rule 15 of the Rules of the Superior Courts declaring the service actually effected on each of them to besufficient.

3 Affidavits were sworn by Desmond Ryan on 10 ^th February, 2004, by Leonard Ryan on 12 ^th March, 2004 and, by Heather Perrin, Solicitor for the Plaintiff, on 18 ^th March, 2004. Supplemental Affidavits were sworn by Heather Perrin on 23 ^rdMarch, 2004 and by Leonard Ryan on 7 ^th May, 2004. Mr. Anthony Kelly, a SummonsServer, swore an Affidavit in the Plaintiffs behalf on 22 ^ndJune, 2004 consequent upon a Direction by me during the course of the hearing of this Issue. The action arises out of a road traffic accident which occurred on 11 ^th or 12 ^th July, 1998, in which a motor car, the property of Desmond Ryan and driven on that occasion by Leonard Ryan and, in which the Plaintiff, Damien Heffernan was travelling as a passenger, collided with another motor car. The Plaintiff's claim is for damages for personal injuries, loss and, damage alleged to have been suffered by him in that collision by reason of alleged negligence and breach of duty, including statutory duty, on the part of the Defendants and each of them, their respective servants oragents.

4 By letter dated 19 ^th July, 2002, O'Rourke Reid, Solicitors for the Defendants informed the Solicitor for the Plaintiff that they considered that the Plenary Summons had not been served correctly within 12 months of its date of issue and, therefore, the claim was nowtime-barred.

5 In his Affidavit, Mr. Desmond Ryan states that when he returned to his residence, 75 Bettyglen, Howth Road, Raheny, Dublin, 5., on10 ^th July, 2002 he found an envelope addressed to him in the letterbox of his house, which contained, what appeared to be an unsealed Plenary Summons dated 4 ^th July, 2001 with a covering letter from Heather Perrin, dated 27 ^th June, 2002 in the followingterms:-

"Our Reference: HP/PB"

6 Your Ref:

7 Re: My client - Damien Heffernan

8 Accident -11 ^th July, 1998

9 Dear Sir,

10 I refer to the above and enclose herewith copy of High Court Plenary Summons by way of service upon you.

11 Yours faithfully..."

12 In his Affidavit sworn on 12 ^th March, 2004, Mr. Leonard Ryan states that he was unaware that Damien Heffernan intended to pursue a claim for personal injuries against him until 10 ^th July, 2002. His father, Desmond Ryan contacted him to state that on his return home from a holiday in Canada on 10 ^th July, 2002, he found an envelope addressed to Leonard Ryan in his letterbox. Leonard Ryan states that the envelope contained what appeared to be an unsealed Plenary Summons dated 4 ^th July, 2001 and a covering letter from Heather Perrin dated 27 ^th June, 2002 in the same terms as that addressed to Desmond Ryan, above recited.

13 Mr. Desmond Ryan contends that as he was outside the jurisdiction on27 ^th June, 2002 and did not return to the jurisdiction until10 ^th July, 2002, he could not have been validly served with proceedings under the provisions of Order 9 rule 2 of the Rules of the Superior Courts and, that the Plenary Summons issued on 4 ^thJuly, 2001 lapsed on 4 ^th July, 2002 having regard to the provisions of Order 8 rule 1 of the Rule of the Superior Courts and could not be renewed thereafter. An Appearance Under Protest was entered on his behalf and, on behalf of Leonard Ryan by O'Rourke and Reid, Solicitors on 30th May, 2003. No waiver of any alleged irregularity in the service of the Plenary Summons arises from the entry of this conditional appearance.

14 At paragraph 7 of his Affidavit sworn on 12 ^th March, 2004, Mr. Leonard Ryan avers that he does not reside at 75 Bettyglen, Raheny and, did not reside there at the time the Plaintiff attempted to effect service of the Plenary Summons on him. In both his Affidavits he gives his address as 15 Westbrook Lawn, Naul Road, Balbriggan, CountyDublin.

15 In her Affidavit, sworn on 18 ^th March, 2004, Heather Perrin, Solicitor for the Plaintiff, states that on 27 ^th June, 2002 she retained the services of Mr. AnthonyKelly, whom she believed to be an experienced Summons Server and who was known to a member of her staff for more than five years, to effect service on both Defendants of the Plenary Summons issued on4 ^th July, 2001. As the road traffic accident had occurred on11 ^th or 12 ^th July, 1998, the action would become time-barred on 1l ^th or 12 ^th July, 2001. Mr. Leonard Ryan contends on the Affidavit evidence, that no due or reasonable diligence was exercised by the Plaintiff in endeavouring to effect personal service of the originating Summons on him. This is a matter of fact for the Court to determine. In her Supplemental Affidavit sworn on 23 ^rd April, 2004, Heather Perrin deals with the reasons for the delay in issuing and then in serving the originatingsummons.

16 The reason advanced for this belief by Mr. Leonard Ryan is that he and the Plaintiff had a mutual close friend, Mr. Colin Newman. This gentleman, he states, attended the wedding of the Plaintiff and, it was intended that he would be Best Man to Leonard Ryan at his own wedding in June, 2004. Leonard Ryan states that the Plaintiff could readily have ascertained his house or business address from Mr. Newman and, with regard to the latter, pointed out that he had worked for Irish Life and Permanent Group, (now Permanent T.S.B.), for the previous thirteen years.

17 In her Supplemental Affidavit, sworn on 23 ^rd April, 2004, Heather Perrin, Solicitor for the Plaintiff, states that when instructing her on 6 ^th August, 1998 Damien Heffernan did not know the address of Leonard Ryan or the name of his insurers but believed that the road traffic accident had been investigated by members of An Garda Siochana stationed at Donnybrook Garda Station. On16 ^th September, 1998, after some correspondence she was informed by Donnybrook Garda Station that they had no record of the accident. On the following day the Plaintiff told her that he had received information which indicated, though he could not be sure, that Eagle...