Murphy v Mulcahy & Health Service Executive (HSE)

JurisdictionIreland
JudgeMr. Justice Max Barrett
Judgment Date15 June 2015
Neutral Citation[2015] IEHC 377
CourtHigh Court
Date15 June 2015

[2015] IEHC 377

THE HIGH COURT

Record No. 1286P/2014
Murphy v Mulcahy & Health Service Executive (HSE)
Approved Judgment
No Redaction Needed
BETWEEN/
ANN MURPHY
PLAINTIFF

AND

KEVIN MULCAHY AND THE HEALTH SERVICE EXECUTIVE
DEFENDANTS

Practice & Procedures – Damages & Restitution – O. 8, r. 1 & r. 2 of the Rules of the Superior Courts 1986 – Renewal of plenary summons

Facts: The first named defendant applied for an order for setting aside an ex-parte order of the Court renewing plenary summons for further six months in relation to the proceedings instituted by the plaintiff for personal injury, loss and damages against the first named defendant.

Mr. Justice Max Barrett refused to set aside the order of the Court for renewal of plenary summons. The Court laid down that a three- limb approach should be taken in order to set aside a renewal order: existence of good reason, interest of justice and nature of hardship caused to each party. The Court held that first named defendant had not established any ground or defect in the service of the summons except that the process was initiated late in the prescribed period. The Court held that o. 8 of the Rules of the Superior Courts 1986 did not require that summons must be issued early or in the middle of the prescribed period and it would be sufficient that reasonable efforts were made to service the summons. The Court while applying the three-limb test held that the plaintiff had good reason to prosecute her case and serious prejudice would be caused to her in case the order of renewal was to be set aside.

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Judgment of Mr. Justice Max Barrett delivered on 15th June, 2015.

Part I
Introduction and Chronology of Facts Arising
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1. Key Issue Arising. This is an application made by Mr Kevin Mulcahy pursuant to O. 8, r.2 of the Rules of the Superior Courts 1986, as amended, seeking a set-aside of an order made, ex parte, by the court (Hedigan J.) on 7 th April, 2014, pursuant to O. 8, r.1 of the Rules, renewing a Plenary Summons of 7 th February, 2013, for a further six months.

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2. Chronology of events. The court identifies below the key dates and events relevant to the within application:

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· - 7 th February. 2013. Plenary Summons issues. The General Indorsement of Claim indicates that the plaintiff's claim is, inter alia, for personal injury, loss and damage suffered by the plaintiff by reason of alleged trespass to the person and alleged assault (including alleged sexual assault) perpetrated by Mr Mulcahy.

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· - 3 rd February. 2014. Summons-server instructed by solicitor for Ms Murphy to serve the Plenary Summons. Summons-server calls to address of Mr Mulcahy on the 3 rd but does not succeed in serving the summons personally.

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· - 4 th February. 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally.

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· - 5 th February. 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally.

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· - 6 th February. 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally. He is advised by Mr Mulcahy's son that Mr Mulcahy will be home that evening. Summons-server returns that evening and is told by Mr Mulcahy's wife that her husband is not present and she is unable to advise when he will be home.

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· - 7 th April 2014. Following an ex parte application, the High Court (Hedigan J.) makes an order pursuant to O. 8, r.1 of the Rules of the Superior Courts renewing the Plenary Summons for a further six months, requiring service of the Summons and Order by ordinary prepaid post on Mr Mulcahy at a stated address, with any other documents to be served personally.

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· - 7 th July, 2014. Mr Mulcahy is duly served.

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· - 13 th November. 2014. Ms Murphy consents to filing of late appearance. Thereafter, Mr Mulcahy's solicitor seeks the papers in relation to the previous application to renew.

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· - 12 th January. 2015. Mr Mulcahy's solicitor swears an Affidavit in which, inter alia, she (a) denies that her client ever sought to avoid service, (b) avers that the first attempt of service of the Plenary Summons of 7 th February, 2013, was on 3 rd February, 2014, nearly a year after the summons first issued, (c) avers that there was no reasonable attempt to serve the summons beforehand, (d) opines that the summons ought not to have been renewed, and (e) avers that as a result of the renewal "the greater hardship will fall on [Mr Mulcahy]…than on [Ms Murphy]…who for many years delayed in prosecuting her claim". (The court notes that although such hardship has been alleged, no substantive detail of same has been forthcoming).

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· - 16 th January, 2015. Notice of Motion issues from Mr Mulcahy's solicitor indicating that Mr Mulcahy will seek, inter alia, an order setting aside the order of the previous April renewing the plenary summons. Notice of Motion is served by registered post of the 20 th.

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· - 8 th June, 2015. Set-aside application heard by this Court.

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3. There is a mis-match in the documentation between the address at which service was ordered to be made and the address at which, in reality, service fell to be made. It was common cause between the parties at the hearing of the within application that in reality it had been sought to serve the defendant, and the defendant was eventually served, at the correct address.

Part II
Order 8 of the Rules of the Superior Courts (1986), as amended
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4. Renewal of summons. Order 8, rules 1 and 2, provide as set out below. (Rule 2 is quoted to show from where the court's jurisdiction in the within application derives.)

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2 "1. No original summons shall be in force for more than twelve months from the day of the date thereof including the day of such date; but if any defendant named therein shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal, and so from time to time during the currency of the renewed summons…

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2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order."

Part III
Case-law cited
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5. Overview. Counsel have between them referred in some detail to a trio of cases, viz. Chambers v. Kenefick [2007] 3 I.R. 526, Bingham v. Crowley and Others [2008] IEHC 453, and Moloney v. Lacey Building and Civil Engineering Limited [2010] 4 I.R. 417. Passing reference was also made at the hearing to O' Keeffe v. G & T Crampton Ltd. [2009] IEHC 366.

A. Chambers v. Kenefick.
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6. In Chambers, the plaintiff claimed that he had been injured in October, 1998, during a surgical operation. A plenary summons issued on 25 th June, 2002. A copy of the summons was sent on 2 nd September, 2002 to the defendant's insurers. The defendant's solicitors wrote on 12 th December, 2002, indicating that they had authority to accept service. Because of inadvertence on the part of the plaintiff's solicitor, the plenary summons was not served on the defendant's solicitor within the time required by the Rules of the Superior Courts. On 15 th December, 2003, the plaintiff applied ex parte for a renewal of the summons. The High Court (Kearns J., as he then was) renewed the summons for six months. On 5 th March, 2004, the original summons and order were served on the defendant's solicitors. On 8 th April, 2004, the defendant's solicitors entered a conditional appearance. On 6 th January, 2005, the Statement of claim was delivered by the plaintiff's solicitor. On 27 th January, 2005, the defendant issued a notice of motion seeking to set aside the order renewing the summons. Refusing to set aside the order, Finlay Geoghegan J. made various helpful observations. These are considered below.

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7. At para.4 of her judgment, Finlay Geoghegan J. referred with partial approval to the judgment of Morris J. in Behan v. Bank of Ireland (Unreported, High Court, 14 th December 1995), at p.3, that:

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2 "[1] [I]n moving an application of this nature the defendant takes upon itself the onus of satisfying the court that there are facts or circumstances in the case which if the court which made the order in the first instance, ex parte, had been aware, it would not have made the order. It is clear, in my view beyond dispute, that[2]this application is not to be dealt with on the basis that it is an appeal from the original order and, accordingly,[3]it is incumbent upon the moving party to demonstrate that facts exist which significantly alter the nature of the plaintiff's application to the extent of satisfying the court that, had these facts been known at the original hearing, the order would not have been made."

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8. At para. 6 of her judgment, Finlay Geoghegan J. added to the foregoing that:

"It appears to me that, in addition to the approach set out by Morris J., [4] it is open to a defendant, by submission, to seek to demonstrate to the court that, even on the facts before the judge hearing the ex parte application, upon a proper application of the relevant legal principles the order for renewal should not be made. This appears to me to be necessary havingregard to the purpose of an application under 08, r.2....It appears to me that the purpose of including 08., r.2 is to accord to a defendant fair procedures in the High Court…".

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