Lawless v Beacon Hospital

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 15 October 2019
• Neutral Citation: [2019] IECA 256
• Docket Number: Record Number: 2018/497
• Court: Court of Appeal (Ireland)
• Date: 15 October 2019

BETWEEN:

LISA LAWLESS

PLAINTIFF/APPELLANT

AND

BEACON HOSPITAL, BEACON HOSPITAL SANDYFORD LIMITED

FIRST AND SECOND DEFENDANTS

AND

MO’IAD ALAZZAM, ROBERT HANNON

AND

ADNAN HAFEEZ

THIRD, FOURTH AND FIFTH DEFENDANTS/RESPONDENTS

[2019] IECA 256

Peart J.

Baker J.

Costello J.

Record Number: 2018/497

THE COURT OF APPEAL

Personal injury summons – Renewal – Period for service – Appellant seeking an order for the renewal of her personal injury summons as against the respondents – Whether the personal injury summons expired in the sense of becoming a nullity upon the expiration of the twelve-month period for service

Facts: The appellant, Ms Lawless, appealed to the Court of Appeal from an order of the High Court (Binchy J) dated 20th December 2018 whereby for the reasons contained in a written judgment delivered on 14th December 2018 ([2018] IEHC 736) the appellant’s application for an order under Order 8, rule 1 of the Rules of the Superior Courts for the renewal of her personal injury summons as against the third, fourth and fifth respondents, Mr Alazzam, Mr Hannon and Mr Hafeez, was refused. That application was refused essentially because the trial judge was not satisfied that any “other good reason” had been established as to why service had not been effected during the period of twelve months from date of issue thereof.

Having heard oral argument from both sides on 22nd July 2019, the members of the Court of Appeal were each agreed that the appeal should be allowed and therefore that an order should be made for the renewal of the personal injury summons, and so indicated to the parties at the conclusion of the hearing. The Court stated that it would give its reasons in a written judgment at a later date.

Peart J held that a number of matters were in his view clear: firstly, the personal injury summons did not expire in the sense of becoming a nullity upon the expiration of the twelve-month period for service; secondly, if the respondents, once served, wished to raise an objection to the validity to service the way to do that was to bring an application under Order 12, rule 26 of the Rules of the Superior Courts prior to entering an appearance; thirdly, the entry of their appearance to the summons had the effect of curing any defect that may otherwise have been found in the validity of the service effected outside the twelve-month period absent a renewal order; fourthly therefore, on the facts of this case no application to renew the summons was necessary.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15TH DAY OF OCTOBER 2019

1 This is an appeal from an order of the High Court (Binchy J.) dated 20th December 2018 whereby for the reasons contained in a written judgment delivered on the 14th day of December 2018 ( [2018] IEHC 736) the appellant's application for an order under Order 8, rule 1 of the Rules of the Superior Courts for the renewal of her personal injury summons as against the third, fourth and fifth named defendants/respondents (“the respondents”) was refused. This application was refused essentially because the trial judge was not satisfied that any “other good reason” had been established as to why service had not been effected during the period of twelve months from date of issue thereof.

2 Having heard oral argument from both sides on 22nd July 2019, the members of the Court were each agreed that the appeal should be allowed and therefore that an order should be made for the renewal of the personal injury summons, and so indicated to the parties at the conclusion of the hearing. The Court stated that it would give its reasons in a written judgment at a later date.

3 This appeal raises an important issue, namely how the court should approach the question of what may or may not constitute a “other good reason” in professional negligence proceedings, where on the authorities a plaintiff ought not to commence such proceedings, or at least not serve same upon the professional defendants named, until in possession of sufficient by way of expert opinion to enable the plaintiff and his/her advisers to be satisfied that there is at least a bona fide arguable case of negligence to be made out against the defendants – see e.g. Cooke v. Cronin (unreported, Supreme Court, 14 July 1999; Moloney v. Lacey Building & Civil Engineering Ltd [2010] 4 I.R. 417.

4 This appeal is important for the respondents for the very obvious reason that it is a serious matter for the respondents to have their professional reputations impugned by allegations of negligence in their treatment and care of the appellant, let alone to have a finding of negligence made following a full hearing of the case.

5 It is important to the appellant also because if the trial judge was correct to refuse her application for renewal of her personal injury summons, she will be forever precluded from pursuing her claims of negligence against these respondents and therefore, potentially, from recovering substantial damages. The refusal, of course, does not prevent her from proceeding against the first and second defendants who did not raise any issue in relation to service of the summons upon them, and who simply entered an appearance in the normal way.

6 There is no doubt from the details of the appellant's claim appearing from the pleadings, and from the description by the trial judge in his judgment of her having undergone “a torrid time” between December 2013 and May 2015 during and indeed following her treatment by the respondents, that she has suffered greatly, and has been left with significant adverse sequelae following her illness, treatment and care during that period. The refusal of her renewal application under O. 8, r.1 RSC would have the most profound consequences for her, provided, of course, that her allegations of negligence are supported by expert evidence.

7 At para. 4 of his judgment the trial judge set out a concise description of the background to the appellant's claim, which provides a relevant factual context against which to consider the applicable legal principles. At para. 4 the trial judge stated;

“4. It is claimed that the plaintiff was received into the care of the 1st/2nd named defendant's hospital initially on 3rd December, 2013, under the care of the third named defendant who performed a diagnostic laparoscopy and, thereafter, diagnosed the plaintiff with extensive endometriosis. He advised her to undergo a colonoscopy and referred her to the fourth named defendant for further assessment and/or advice. She was admitted to the same hospital for this purpose on 7th January, 2014. It is claimed that the plaintiff was admitted (for reward) by the first and second named defendants to hospital again on 1st April, 2014, where she underwent surgery performed by the third named defendant. Her appendix was removed and endometriosis was removed from the ovaries and pelvis and the bowel was resected in two places. Subsequently, the plaintiff became very unwell and was in considerable pain and discomfort. On 5th April, 2014, the plaintiff was attended by the third named defendant who diagnosed the plaintiff with a possible perforation and investigated and considered her for further surgery. She underwent an operative procedure on 5th/6th April, 2014, during which a perforation of the bowel was repaired. Thereafter, the plaintiff developed septicaemia and required treatment in intensive care for approximately a week. She convalesced for six months and was readmitted on 16th September, 2014, in order to conduct a reversal of previous procedures. Thereafter, she became very unwell again and developed pneumonia. She again developed septicaemia and her kidneys ceased to function. She required dialysis for five days and treatment in the intensive care unit for eight days and was treated as an inpatient for almost 4 weeks. She required further admission to hospital owing to dehydration and was subsequently referred to St. Vincent's Hospital owing to difficulties retaining fluids. It is apparent from all of this that the plaintiff claims to have suffered very severe injuries at the hands of the defendants. Disregarding liability, assuming that all those events occurred, it is also apparent that the plaintiff had what can only be described as a torrid time between the beginning of December 2013 and May 2015, and perhaps even later.”

8 The personal injury summons was issued by the plaintiff's solicitor on 2nd December 2015 despite the fact that no expert opinion had by that date been obtained in order to support a claim of negligence against the defendants named. It was issued on a so-called “protective basis” in order to avoid the claim becoming statute barred. The proceedings were not served at that point. Neither were the named defendants notified of the existence of the proceedings, nor indeed that any proceedings were being contemplated. As noted by the trial judge (para 6) this is explained by the appellant on the basis that to have done so would have made it necessary for the respondents to notify their insurers of any such correspondence, and that it may have had an adverse consequence for them as a result.

9 I should add at this point that there may be cases where it is acceptable practice to issue a personal injury summons on a protective basis given the requirement in cases of professional negligence that the plaintiff should have a stateable basis for his/her claims of negligence which are supported by appropriate expert opinion, such as where, as in the present case, the first expert advises that the plaintiff's solicitor obtain a report from a different specialist.

10 I would add further that where such proceedings are not being served within the twelve-month period for service following the date of issue, it would be prudent for the plaintiff's solicitor to at least notify the named defendants that the proceedings have been...