James Nolan v Trustees of Bridge United AFC and Penturf Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] IEHC 335
• Docket Number: [Record No. 2018/4525 P]
• Court: High Court
• Date: 14 May 2021

Between

James Nolan

Plaintiff

and

Trustees of Bridge United AFC and Penturf Limited

Defendants

[2021] IEHC 335

[Record No. 2018/4525 P]

THE HIGH COURT

Personal injury summons – Renewal – Special circumstances – First defendant seeking to have the order renewing the plaintiff’s personal injury summons set aside – Whether special circumstances justified the renewal of the summons

Facts: The plaintiff, Mr Nolan, on 20th December, 2016, injured himself while playing football on the astroturf pitch of the first defendant, Trustees of Bridge United AFC, which had been laid by the second defendant, Penturf Ltd. The personal injury summons issued on 21st May, 2018. The first defendant applied to the High Court to have the order made by the High Court on 14th October, 2019, renewing the plaintiff’s personal injury summons, set aside. The reason given by the High Court for renewing the summons on 14th October, 2019 was stated in the order as follows: “In circumstances where there [sic] an administrative oversight has occurred”. The first defendant submitted that the reason did not constitute “special circumstances” as required by O. 8 of the rules, such as to justify the renewal of the summons. Accordingly, it was submitted that the court should set aside the renewal of the personal injury summons.

Held by Barr J that, having regard to the finding of the court that the Statute of Limitations point was not raised before the court at the ex parte stage and having regard to the fact that even if it was so raised, it was not one of the special circumstances identified by the court justifying renewal of the summons, the point could not be raised in answer to the defendant’s application to set aside renewal of the summons. The court held that the fact that the plaintiff’s action against the defendants was not statute barred at the time that he made his application to renew the summons on 14th October, 2019, was not relevant to the issue as to whether that renewal should be set aside. The court found that inadvertence was not a special circumstance in the case which would justify the renewal of the summons. Barr J held that the fact that the first defendant may not have suffered any discernible prejudice as a result of the failure of the plaintiff to serve the summons within the appropriate period, was not sufficient to constitute a special circumstance justifying the renewal of the summons.

Barr J held that the court would accede to the first defendant’s application to set aside the renewal of the summons against it, which was made by order of the High Court dated 14th October, 2019.

Application granted.

JUDGMENT of Mr. Justice Barr delivered electronically on the 14th day of May, 2021

Introduction

1 This action arises out of an accident on 20th December, 2016, when the plaintiff injured himself while playing football on the first defendant's astroturf pitch, which had been laid by the second defendant. The personal injury summons issued on 21st May, 2018.

2 This is an application on behalf of the first named defendant to have the order made by the High Court on 14th October, 2019, renewing the plaintiff's personal injury summons, set aside.

3 The first named defendant submits that the reason given by the High Court for renewing the summons on 14th October, 2019, which was stated in the order as follows: “In circumstances where there [sic] an administrative oversight has occurred”; did not constitute “special circumstances” as required by O.8, such as to justify the renewal of the summons. Accordingly, it is submitted that the court should set aside the renewal of the personal injury summons herein.

4 In response thereto, the plaintiff relies heavily on the fact that at the time when the application for renewal of the summons was made, the plaintiff's action against the defendants was not statute barred. The plaintiff was within the relevant limitation period, within which he could institute fresh proceedings arising out of the accident the subject matter of the proceedings, which had occurred on 20th December, 2016. It was submitted that these circumstances constituted “special circumstances” which justified the renewal of the summons.

5 Secondly, the plaintiff points to the fact that the first defendant had been made aware of the circumstances of the accident from a very early stage, as it had been sent a letter of claim within two months of the date of the accident. Thereafter, there had been correspondence between the plaintiff's solicitor and the insurers representing the first defendant. A joint engineering inspection had been carried out within a year of the accident. It was submitted that in these circumstances, it could not be argued that the first defendant had suffered any prejudice by the omission to serve the summons within the time prescribed by the rules.

6 Thirdly, it was submitted that, while the primary reason for the failure to serve the summons within the appropriate time, was inadvertence on the part of the plaintiff's solicitor, the plaintiff did not rely on that as being the only applicable “special circumstance” justifying the renewal of the summons; it had to be seen in conjunction with the fact that the plaintiff was within the appropriate limitation period when the application for renewal had been made and there was no specific, or even general prejudice to the defendant in allowing the renewal of the summons herein.

7 That is a very general statement of the issues that arise for determination in this case. A more detailed account of the chronology of the relevant dates and steps taken in the action is set out in the next section of the judgment.

Relevant chronology

Key dates

8 The most pertinent dates from the point of view of this application are as follows:-

20th December, 2016	Plaintiff is injured while playing football on the astroturf football pitch at the premises of the first named defendant.
29th May, 2017	Plaintiff submits an application to PIAB.
11th October, 2017	PIAB issues an authorisation to proceed against the first defendant.
24th April, 2018	PIAB issues an authorisation to proceed against the second defendant.
21st May, 2018	Personal injury summons is issued.
20th May, 2019	Time for service of personal injury summons expired.
27th August, 2019	Plaintiff's solicitor becomes aware that the summons had not been served on either defendant.
14th October, 2019	Order made by High Court renewing the summons.
17th November, 2019	Expiry of limitation period for action against first defendant.
20th November, 2019	The renewed summons is served on the first defendant.
27th April, 2020	First defendant issues motion to set aside renewal of the summons.

Relevant correspondence

9 In addition to the key relevant dates outlined above, it is necessary to give a brief outline of certain items of correspondence which passed between the parties. This correspondence is relevant to the issue of prejudice, or the lack thereof, to the first defendant, in relation to its ability to investigate the incident and defend the interests of the first defendant in these proceedings.

10 As already noted, the plaintiff's action arises out of an accident that occurred on 20th December, 2016, when he was playing football on the first defendant's astroturf pitch. In essence, the plaintiff's complaint is that there was a concrete lip either adjacent to, or behind, one of the goals and due to the presence thereof, he was caused to trip and fall to the ground, suffering injury to his right knee.

11 By letter dated 14th February, 2017, the secretary of Bridge United AFC was put on notice of the claim. The following description was given of the accident:-

“Our client was playing football as a visitor at the grounds when he fell to the ground and severely injured his right knee. The injury was caused by a negligently constructed concrete lip beside/behind one of the goals. Clearly this lip should not have been in an area so proximate to the playing surface and the accident in all circumstances was reasonably foreseeable.”

12 On 29th May, 2017 the plaintiff's solicitor wrote a further letter to the first defendant. He also submitted Form A to PIAB, seeking damages from the first defendant in respect of the injuries sustained by his client. In the application form, the accident was described as “Claimant fell against concrete lip while playing football on the respondent's property”.

13 By letter dated 28th June, 2017, Mr. Leo McFeely of the Claims Department of Allianz, informed the plaintiff's solicitor that his letter of 29th May, 2017 had been passed to them by their policyholder. In that letter Mr. McFeely requested full details of the accident circumstances; detailed allegations of negligence on the part of the policyholder; the identity of any witnesses and the plaintiff's solicitor was asked to provide full particulars of his client's claim.

14 The plaintiff's solicitor responded to that correspondence by letter dated 3rd July, 2017, in which he stated that it was his client's case that the concrete lip should not have been situated at the locus, as it constituted a hazard. He went on to state that they would be prepared to arrange a joint inspection of the locus of the accident in due course. He indicated that they intended to instruct Mr. Michael Fogarty, Engineer, to act on behalf of the plaintiff. He went on to confirm the plaintiff's PPS number and his date of birth. He also enclosed a copy of a medical report dated 30th March, 2017 from the plaintiff's doctor.

15 Allianz responded by letter dated 7th July, 2017, wherein they stated that their investigations were in hand and when complete they would furnish their view on liability. The letter inquired whether the request for an inspection by the plaintiff's engineer might be premature, bearing in mind that the...