Kearns -v- Roches Stores, [2009] IEHC 272 (2009)

Docket Number:2002 3572 P
Party Name:Kearns, Roches Stores
Judge:Cooke J.
 
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THE HIGH COURT2002 3572 P

BETWEEN/

FRANCES KEARNSPLAINTIFFAND

ROCHES STORESDEFENDANTJUDGMENT of Mr Justice Cooke delivered on the 18th May, 2009.

  1. By order of 17th May, 2004, made by Peart J. pursuant to O. 8, r. 1 of the Rules of the Superior Courts, the plenary summons in this action, which had been issued from the Central Office of the High Court, on 6th March, 2002 but not served, was renewed for a period of six months, that is, until 16th October, 2004.

  2. The renewed summons was apparently delivered to the offices of Messrs. O'Flynn Exhams, the solicitors nominated to accept service on behalf of the defendant on 18th May, 2004, but the firm declined to accept service as the summons did not bear the impressed stamp of the date of renewal as required by O. 8, r. 1.

  3. The plaintiff's solicitors then purported to serve the summons by registered post at the registered office of the defendant (an unlimited company) on 11th October, 2004, although the summons still did not bear the renewal stamp.

  4. A conditional appearance was entered on behalf of the defendant and the present application is now brought pursuant to r. 2 of O. 8 to set aside the renewal of the summons by the order of 17th May, 2004.

  5. There can be no doubt but that this action has been characterised by quite exceptional delay on the part of the plaintiff when it is realised that its claim for damages for personal injuries arises out of an accident which it is alleged the plaintiff sustained in the defendant's department store on 27th July, 1983 - over a quarter of a century ago - when she was aged two years and four months.

  6. The plaintiff attained the age of 18 years on 12th March, 1999, so the issue of the plenary summons on 6th March, 2002, took place only a few days short of the third anniversary of that birthday.

  7. No attempt was apparently made to serve the summons in the following year and it expired on 5th March, 2003. In an affidavit sworn by Mr. Raphoe Collins of the plaintiff's current solicitors Messrs. O'Rourke Reid on an unspecified date (but filed on 4th May, 2004), to ground the ex parte application to renew the summons, reference is made to the fact that, according to the file which that firm took over from City Gate Law, the plaintiff's previous solicitors, the summons had been delivered personally to the assistant general manager of the defendant on 6th March, 2003 at the department store in Dublin.

  8. Again by reference to the file, the plaintiff's solicitor claims that on 17th July, 2003, the defendant's insurers had nominated the firm of Messrs. O'Flynn Exhams to accept service of the proceedings on its behalf. By letter dated 18th July, 2003 the latter...

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