Kearns v Roches Stores

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 18 May 2009
• Neutral Citation: [2009] IEHC 272
• Docket Number: [No. 3572 P/2002]
• Court: High Court
• Date: 18 May 2009

[2009] IEHC 272

THE HIGH COURT

[No. 3572 P/2002]

Kearns v Roches Stores

BETWEEN/

FRANCES KEARNS

PLAINTIFF

AND

ROCHES STORES

DEFENDANT

RSC O.8 r1

RSC O.8 r2

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

Abstract:

Practice and procedure - Renewal of summons - New facts - Delay - Personal injures - Service - Defective - Order 8 rule 1 Rules of the Superior Courts

Facts: In 2004, a plenary summons was issued and not served and eventually renewed for six months until 2004. Service was declined as the summons did not bear the impressed stamp. The proceedings related to a personal injuries claim of the plaintiff where there had been exceptional delay. There were many later delays in effecting service. In 2009, a conditional appearance was entered on behalf of the defendant and the present motion was then brought to set aside the renewal order.

Held by Cooke J. That it had been 25 years since the alleged accident. The position of the defendant was not materially different now as compared with its position had the summons been served within the 12 months following its issue in 2002. The applicant to set aside the order renewing the summons was refused. The only new facts post-dated the renewal of the summons, namely the rejection of service and the alleged defectiveness of the service by registered post in 2004.

Reporter: E.F.

Mr Justice Cooke

1 By order of 17^th 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 6^th March, 2002 but not served, was renewed for a period of six months, that is, until 16^th 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 18^th 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 11^th 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 17^th 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 27^th 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 12^th March, 1999, so the issue of the plenary summons on 6^th 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 5^th 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 4^th 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 6^th March, 2003 at the department store in Dublin.

8 Again by reference to the file, the plaintiff's solicitor claims that on 17^th 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 18^th July, 2003 the latter firm confirmed their instructions and asked for a series of details relating to the accident and the claim. No reply was received from City Gate Law to that letter but, having apparently learned of the change of solicitors which had taken place in July 2003, they wrote forwarding a copy of the letter and repeating the request for the information on 23^rd September, 2003. A reply giving the information was sent to O'Flynn, Exhams & Partners on 30^th January, 2004.

9 It appears that it was at this point that it was realised that any service purported to have been effected on 6^th March, 2003 was out of time and ineffective and accordingly, it was not until fourteen months after the expiry of the summons that an application was made ex parte to Peart J. for its renewal.

10 Under O. 8, r. 1 an expired summons may be renewed by the court when it is satisfied that the...