Jackman (plaintiff) v Getinge AB & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 27 February 2009
• Neutral Citation: [2009] IEHC 612
• Court: High Court
• Docket Number: [No. 9197 P/2004]
• Date: 27 February 2009

[2009] IEHC 612

THE HIGH COURT

[No. 9197 P/2004]

Jackman v Getinge AB & Ors

BETWEEN

PATRICK JACKMAN

PLAINTIFF

AND

GETINGE AB, SOUTHERN HEALTH BOARD AND MANEPA LIMITED

DEFENDANTS

RSC O.8 r2

RSC O.8 r1

RSC O.11A r6

BAULK v IRISH NATIONAL INSURANCE CO LTD 1969 IR 66

MARTIN v MOY CONTRACTORS LTD & ORS UNREP SUPREME 11.2.1999 1999/17/5117

ROCHE v CLAYTON & ORS 1998 1 IR 596

O'BRIEN v FAHY T/A GREENHILLS RIDING SCHOOL UNREP SUPREME 21.3.1997 1997/11/3442

MCCOOEY v MIN FOR FINANCE & MCGEOUGH 1971 IR 159

BEHAN v BANK OF IRELAND UNREP MORRIS 14.12.1995 1996/1/105

O'GRADY v SOUTHERN HEALTH BOARD & TRALEE GENERAL HOSPITAL 2007 2 ILRM 51 2007/49/10368 2007 IEHC 38

PRACTICE & PROCEDURE

Summons

Renewal - Set aside renewal - Unconditional appearance entered - Grounds - Discretion - Whether good reason to renew summons - Whether required reasonable efforts to serve defendant - Meaning of "other good reason" - Factors to take into account - Whether fact that Statute of Limitations would defeat new proceedings could be good cause to grant renewal - Reciprocal basis of Statute of Limitations - Prejudice to defence - Lapse of time - Whether actual substantial impairment of defence established - Baulk v Irish National Insurance Co Ltd [1969] IR 66; Martin v Moy Contractors Ltd (Unrep, SC, 11/2/1999); Roche v Clayton [1998] 1 IR 596 and McCooey v Minister for Finance [1971] IR 159 considered- Behan v Bank of Ireland, (Unrep, HC, 14/12/1995) and O'Grady v Southern Health Board (Unrep, HC, 2/2/2007) applied - O'Brien v Fahy (Unrep, SC, 21/3/1997) distinguished - Rules of the Superior Court 1986 (SI 15/1986) O 8, rr 1 and 2 , O 11A, r 6 - Defendant's application refused (2004/9197P - McMahon J - 27/2/2009) [2009] IEHC 612

Jackman v Getinge AB

Facts: The plaintiff, an employee of the second named defendant, claimed damages for personal injuries suffered at work. The plaintiff sent a summons to the defendant whose registered office was in Sweden and the summons was insufficiently and wrongly addressed such that the plenary and concurrent summons was received three and a half years after the accident. An order was granted by the High Court renewing the plenary summons in 2008 and then thereafter, an unconditional appearance was entered. The defendant sought orders discharging the appearance entered by mistake and an order pursuant to Order 8 rule 2, Rules of the Superior Courts setting aside the order renewing the plenary summons. The issue arose as to whether the plaintiff had made reasonable efforts to serve the defendant and whether there were other good reasons to know whether the plaintiff intended to sue the defendant such that renewal could be ordered and whether serious prejudice would result to the defendant from the renewal of the summons. No employees had witnessed the accident. An accident report was in existence.

Held by McMahon J. that the Court was of the view that there was "good reason" for renewing the summons of the plaintiff. Any errors committed by the plaintiff's solicitor were no greater than the errors of the solicitor for the defendant. The application of the first named defendant would be refused as there was no serious prejudice to the first named defendant in confirming the renewal order made earlier.

Reporter: E.F.

Mr. Justice McMahon

1 The plaintiff, an employee of the second named defendant, injured his fingers in 2004 when operating a machine manufactured by the first named defendant and controlled, maintained or serviced by the third defendant.

2 Proceedings were commenced by way of plenary summons issued on the 31^st May, 2004. The plaintiff claims damages for personal injuries. The plaintiff sent a summons on the 19^th May, 2005 to the defendant whose registered office was in Sweden. The summons was insufficiently and wrongly addressed and the first named defendant was also wrongly named. The first named defendant received a copy of the plenary summons and a copy of the concurrent summons on the 24^th September 2007, three and a half years after the accident, the subject matter of the proceedings. This was the first indication that the first named defendant had that proceedings were in being in respect of the injury to the plaintiff.

3 It is important to set out the relevant time line for the determination of the application. The relevant timeline is as follows:-

4 · Date of the accident, the subject matter of the proceedings - 26^th February,2004;

· Plenary summons issued - 31^st May, 2004;

· Statute limitation runs out - 26^th February, 2007;

5 · The latest date for service of a summons within the time permitted by the statute - 25^th February, 2008; (i.e. if the plaintiff waited until the 25^th February, 2007 before issuing the plenary summons);

6 · Attempted service on the first named defendant - 19^th May, 2005;

7 · Re-service on first named defendant at correct address - 24^th September, 2007;

·Ex parte application to renew summons - 9^th June, 2008;

8 · Order of Mr. Justice Peart granting the renewal of the plenary summons - 9^th June, 2008;

· Renewed plenary summons served - 1^st July, 2008;

9 · Unconditional appearance entered -; 10^th July, 2008.

10 In a notice of motion dated the 3^rd November, 2008 the first defendant seeks the following orders from this Court:-

11 (1) An order pursuant to the inherent jurisdiction of this honourable Court discharging the appearance entered by mistake on behalf of the first named defendant in circumstances where it was intended at all times that a conditional appearance only would be entered on its behalf;

12 (2) An order pursuant to O. 8, r. 2 of the Rules of the Superior Courts, setting aside the order of Peart J. made on the 9^th June, 2008 renewing the plenary summons and the concurrent summons for a period of six months from that date;

13 (3) Such further and/or other orders as may be necessary or appropriate; and

14 (4) An order providing the cost of this application.

15 The first named defendant under heading 3 subsequently applied at the hearing of this motion for a further order that the costs order made by Peart J. on 9^th June, 2008 should also be set aside.

16 In making its application under this heading the first named defendant referred the court to O. 8, r. 2 of the Rules of the Superior Courts which states:-

17 2 "2. 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."

18 It is clear from this that the first named defendant can only apply to set aside the order of Peart J. dated the 9^th July, 2008 where it has not already entered an appearance. Since the first named defendant has entered an appearance on the 10^th July, 2008 it requests the court to exercise its inherent jurisdiction and allow it to enter a conditional appearance instead of the unconditional appearance already entered. I will postpone the consideration of this request until later in this judgment for reasons that will be become apparent at a later stage.

19 Order 8, rule 1 of the Rules of the Superior Court reads as follows:-

"No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons…"

20 It is clear from this that the original or concurrent summons may be renewed if

21 (i) the court is satisfied that reasonable efforts have been made to serve the defendant or

22 (ii) "for other good reason".

23 It will appear from the alternative ground given to the court ("for other good reason") that it is intended to give the court a wide discretion in the matter and it is a recognition of the fact that procedural requirements may have to yield in appropriate cases to the superior interests of fairness and justice. This is not, of course, to assert that the rules can be disregarded on a whim. The rules must be respected and allowed to regulate where possible. If, however, the technicalities are seen to inhibit a just result, the courts may depart from them where there is "good reason".

24 For the sake of argument, and because of my views on the alternative "good reason" ground outlined in the following paragraphs, I am prepared to accept at this stage that the solicitor for the plaintiff may not have made the required reasonable efforts to serve the first defendant in this case.

25 In attempting to serve the first defendant, the plaintiff sent the summons to "Hamstat, Sweden", when the correct address which was on the first defendant's website for many years, was PO Box 69, SE 31044 Getinge, Sweden. Hamstat is a small town, 20 kilometres from Getinge. The subsequent attempt to serve was also flawed...