McDonagh v McCann
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 16 January 2018 |
| Neutral Citation | [2018] IEHC 8 |
| Court | High Court |
| Docket Number | [2014] No. 10026 P],[2014 No. 10029 P] |
| Date | 16 January 2018 |
[2018] IEHC 8
THE HIGH COURT
Baker J.
[2014 No. 10029 P]
Practice & Procedure - Renewal of the summons - O 8, r. 2 of the Rules of the Superior Courts - Professional negligence - Delay in service - Availability of expert opinion
Facts: The defendants filed an application pursuant to O. 8, r. 2 of the Rules of the Superior Courts to set aside an order renewing the plenary summons made by the Master of the High Court. The defendants contended that there were no good reasons to renew the summons of the plaintiff as the plaintiff failed to serve the summons on time. The plaintiff argued that he was waiting for an expert report and the outcome of the appeal that was pending before the Supreme Court before commencing the relevant litigation.
Ms. Justice Baker refused to grant the relief to the defendants. The Court held that after the Supreme Court delivered its decision and the expert report was given, the plaintiff acted with expedition. The Court also opined that there was a good reason to renew the summons in the present case, which was to await the decision of the Supreme Court before deciding whether to initiate litigation against the former solicitors.
This judgment is given in the application by the defendants pursuant to O. 8, r. 2 of the Rules of the Superior Courts to set aside an order renewing the plenary summons made by the Master of the High Court.
This professional negligence action was commenced by plenary summons issued on 27th November, 2014, and renewed by order of the Master on 26th November, 2015, the day before it expired. The ground given for the renewal of the summons was that an expert opinion was awaited.
Eight affidavits have been sworn for the purposes of the present hearing.
The proceedings seek damages against the defendant firm which acted as solicitors for Mr. McDonagh in proceedings in 2003 entitled McMullan Brothers Limited v. Patrick McDonagh (2003 No. 2431 P) relating to a leak of petrol at the Singland Service Station on the Dublin Road in Limerick. Judgment was delivered by Smyth J. in October, 2007, McMullan Bros. Limited v. Patrick McDonagh (Unreported, High Court, 18th October, 2007), by which liability in respect of the claim was apportioned as to 60% against Mr. McDonagh and 40% against that plaintiff.
That decision was appealed to the Supreme Court by Mr. McDonagh and the plaintiff lodged a cross appeal in respect of the finding of contributory negligence.
The Supreme Court heard the appeal in November, 2014 and on, 5th March, 2015, delivered judgment upholding the judgment of Smyth J: [2015] IESC 19.
During the currency of the appeal process and between the delivery of judgment by Smyth J. in October, 2007 and the judgment of the Supreme Court in March, 2015 (a period of 7 and a half years), correspondence was had between the Mr. McDonagh personally and the defendants, in which Mr. McDonagh expressed dissatisfaction with the manner in which the 2003 proceedings had been conducted. He dispensed with the services of the defendants on 23rd November, 2011, and thereafter instructed new solicitors, who commenced correspondence and received the file of papers relating to the 2003 proceedings in October, 2012.
In July, 2014, the solicitors for the plaintiff sought a report from an independent solicitor, Mr. Bryan Strahan, regarding a possible negligence claim against the defendants arising from the conduct of the 2003 proceedings. The expert solicitor sought additional papers immediately upon receiving his instructions and the relevant papers were requested from the defendants, who did not furnish those papers until 24th June, 2015. I consider the relevant correspondence below.
By November, 2015, the plaintiff had the benefit of an oral indication from the expert solicitor that in his professional view there existed a cause of action against the defendants. The expert did not then furnish a written opinion as he required sight of another report he believed existed from the engineer on whose evidence the judgment of Smyth J. had relied heavily.
The expert solicitor furnished a 'draft opinion' on 1st April, 2016, and this formed the basis of a letter of claim of 6th April, 2016, from the solicitors for the plaintiff.
The renewed summons was served on 21st April, 2016, two weeks later.
As the chronology shows, there was some correspondence between the plaintiff and the defendants ending in the letter from the defendants of 18th June, 2012. A gap of four years ensued between that letter and the pre-action letter of 6th April, 2016. In the meantime, the plenary summons had issued and the Master had renewed the summons for six months. The renewed summons was served a few days after the pre-action letter, and days before it expired
It is convenient to now identify the test and a number of authoritative and recent judgments.
The application under O. 8, r.2 is a de novo hearing and may engage a consideration of all of the facts, and not just those before Master of the High Court on the renewal application. This is established in the judgment of Feeney J. in Bingham v. Crowley & Ors. [2008] IEHC 453 and the Court of Appeal decision in Monahan v. Byrne [2016] IECA 10.
The exercise to be engaged by the court was described recently by Finlay Geoghegan J. in Chambers v. Kenefick [2005] IEHC 402, [2007] 3 I.R. 526:-
'Firstly, the court should consider is there a good reason to renew the summons. That good reason need not be referable to the service of the summons. Secondly, if the court is satisfied that there are facts and circumstances which either do or potentially constitute a good reason to renew the summons then the court should move to what is sometimes referred to as the second limb of considering whether, because of the good reason, it is in the interests of justice between the parties to make an order for the renewal of the summons. Thirdly, in considering the question of whether it is in the interests of justice as between the parties to renew the summons because of the identified good reason, the court will consider the balance of hardship for each of the parties if the order for renewal is or is not made.' (At para. 8)
That formulation of the test was approved by Hogan J. giving the judgment of the Court of Appeal in Monahan v. Byrne [2016] IECA 10, where he stated at para. 13:-
'It is clear from the decision in Chambers that the court should first assess whether there was "good reason' within the meaning of Ord. 8, r.1 to order renewal of the summons. As Finlay Geoghegan J. made clear in her judgment in Chambers, the "good reason' in question is not necessarily referable to the service of the summons. If it finds the existence of such good reason, the court should then consider whether it is in the interests of justice that it should so order. In doing this the court should consider the balance of hardship for each of the parties.'
A plaintiff must justify the failure to serve a summons within its currency, although the test is not so narrow as to require a plaintiff to establish to the satisfaction of the court that reasonable efforts were made to serve the defendant within the currency of the summons: Monahan v. Byrne, per Hogan J. at para. 14, approving the judgment of Peart J. in Moynihan v. Derry Gold Co-operative Society Limited [2006] IEHC 318.
It is also established that the reasons for the failure to serve must explain the delay, be credibly supported by the surrounding circumstances and be sufficient to justify the renewal, i.e. that it be a good or justifying reason. The relief is discretionary in nature, and the discretion of the court will be exercised in the light of the interests of justice.
It is clear from the decision in Roche v. Clayton [1998] 1 I.R. 596 that the fact that a plaintiff would otherwise be statute barred is not a sufficiently good reason to renew a summons, primarily because the Statute of Limitations operates on a reciprocal basis, as was explained by O'Flaherty J., giving the judgment of the Supreme Court.
In Moloney v. Lacey Building & Civil Engineering Ltd. & Ors. [2010] IEHC 8, [2010] 4 I.R. 417, Clarke J. firmly fixed the jurisdiction to set aside the renewal of a summons within the policy reasons of the Statute of Limitations and considered that a failure to serve a summons is not a mere 'procedural mishap' but can in practical effect fail to recognise the policy inherent within the Statute of Limitations that proceedings be tried 'within a reasonable proximity to the events giving rise to the relevant claim' (para. 26), so as to 'minimise the risk of injustice'.
I do not propose considering the present application in the light of the argument not fully canvassed that the plaintiff might have been statute barred at the date of renewal or before.
The primary reason given for delay in service and the basis of this application to renew is the absence of a clear supportive expert report.
The application for the renewal of the summons was grounded on an affidavit of Thomas Kelly, solicitor, sworn on 25th November, 2015, who says that he instituted the proceedings to protect his client's interests and to prevent the running of the Statute of Limitations. He says in broad terms that he did not serve the summons within its currency 'as I was awaiting expert...
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...justifies the failure to serve. It is in that sense that the word 'good' must be read.' 18 In Patrick McDonagh v. Gearoid McGann & Ors [2018] IEHC 8, Baker J. emphasised that the reason or reasons offered 'must explain the delay': - '18. It is also established that the reasons for the fail......