Murphy v The Health Care Executive
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 29 September 2020 |
| Neutral Citation | [2020] IEHC 483 |
| Docket Number | [2018/7802 P.] |
| Court | High Court |
| Date | 29 September 2020 |
[2020] IEHC 483
Cross
[2018/7802 P.]
THE HIGH COURT
Personal injuries – Damages – Negligence – Defendant seeking to set aside the order of the High Court made on foot of an ex parte application renewing the personal injuries summons for a period of three months – Whether delays in obtaining medical reports could constitute a special circumstance to justify the extension of time for leave to renew a summons
Facts: The plaintiff, Ms Murphy, by High Court personal injuries summons dated the 31st August, 2018, claimed damages for the alleged negligence and breach of duty of the defendants as a result of her treatment at a defendant’s hospital in Mayo in March 2016. The plaintiff contended that the defendants failed to properly treat her for her symptoms and as a result she sustained a right parietal ischaemic infarct. The summons issued was in the form of a “precautionary” summons issued in order to prevent any further running of time given the provisions of the statutes of limitations without the benefit of expert opinions or particulars. By order of Murphy J dated the 3rd February, 2020, upon the ex parte application of the plaintiff the summons was renewed for a period of three months due to the specified special circumstances justifying the making of the order as being the delays that occurred in obtaining medical reports. The defendant, the Health Care Executive, applied to the High Court for this order to be set aside. The defendant submitted the delays in obtaining medical reports could not constitute a special circumstance to justify the extension of time for leave to renew a summons. The defendant submitted that appropriate expedition was not used in attempting to procure the reports and that the delay was not that of the medical advisors but that of the plaintiff’s solicitor. The defendant further submitted that the delay was compounded by the plaintiff’s solicitor failure to notify the defendant of the claim and that they made no effort to apply to the Master to renew the summons before the expiry of same. The defendant made the case that the plaintiff’s solicitor chose to not issue the proceedings deliberately, that there was no inadvertence and that there was no notification.
Held by Cross J that there was no culpable delay in the obtaining of the requisite reports. Cross J held that the failure to give the defendant any advance warning of the proceedings was not acceptable but in the circumstances did not create any specific prejudice or injustice and did not impact upon the issue of “special circumstances”. Cross J held that this case was different from the line of authority dealing with inadvertence and resulted from a deliberate decision by the plaintiff’s solicitors which in the circumstances was justified and reasonable, notwithstanding the failure to notify the defendant and Cross J found that the special circumstances necessary to comply with O. 8, r. 3 of the Superior Courts did exist and accordingly the defendant’s application must fail.
Cross J held that the application would be dismissed.
Application dismissed.
By notice of motion dated the 6th July, 2020 the defendant sought the following reliefs in this matter:
(a) An 0.8 r. 1 (2) pursuant to O. 8 r. 2 of the Superior Courts setting aside the order of the High Court made on 3rd February, 2020 on foot of an ex parte application renewing the personal injuries summons for a period of three months.
(b) And for such further or other orders as may be deemed appropriate.
By High Court personal injuries summons dated the 31st August, 2018 the plaintiff claimed damages for the alleged negligence and breach of duty of the defendants as a result of her treatment at a defendant's hospital in Mayo in March 2016. The plaintiff contends that the defendants failed to properly treat her for her symptoms and as a result she sustained a right parietal ischaemic infarct. The plaintiff is 81 and is still in very poor health.
The summons issued was in the form of a “precautionary” summons issued in order to prevent any further running of time given the provisions of the statutes of limitations without the benefit of expert opinions or particulars. This is a regular form of pleading that seems to have become more common after the period for the Statute of Limitations reduced from three to two years.
By order of Ms. Justice Murphy dated the third of February 2020 upon the ex parte application of the plaintiff the summons herein was renewed for a period of three months due to the specified special circumstances justifying the making of the order as being the delays that occurred in obtaining medical reports.
The defendant has brought the instant application for this order to be set aside.
The relevant provisions of O. 8 r. 1 with effect from the 11th January, 2019, amending the previous 0.8 provide:
“(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 therein named 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.
(2) The Master on an application made under sub-rule (1), 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 three months from the date of such renewal inclusive.
(3) After the expiration of twelve months, and notwithstanding that an order may have been made under sub-rule (2), application to extend time for leave to renew the summons shall be made to the Court,
(4) The Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order”.
Prior to January 2019 an order renewing the summons for a period of six months might be made where the court was satisfied that “reasonable efforts have been made to serve the defendant or where other good reason exists”. Up up to twelve months after the issue of the summons the application is to the Master and after the expiration of twelve months to the Court. This is still the case under the amended rule. However, the basis for granting the application by the Court is different under the revised 0.8. r. 1. Since January 2019 when application to the Court is made the Court must be satisfied that there are “special circumstances” justifying the extension.
The period of renewal now allowed under 0.8 r. 1 is reduced from six months to three months and provisions that had previously existed to allowing a renewal “from time to time during the currency of the renewed summons” are not repeated in the amended order.
An affidavit sworn on behalf of the plaintiff provide the following timeline which is not significantly in dispute. On the 28th April, 2018 the plaintiff made enquiries to her present solicitor and had a telephone consultation with the solicitor on the 15th May, 2018. The plaintiff delivered a written statement on the 29th May, 2018 and the data access request was sent to the defendant's hospital. Medical records were received from the defendant's hospital on the 11th July, 2018 and on the 30th August, 2018 instructions were given by the plaintiff to her solicitor to commence proceedings. The protective summons was then issued on the 31st August, 2018 and on the 13th September, 2018 a request for payment for outlay was sent by her solicitor to the plaintiff which request seems to have been mislaid by the plaintiff and it was only at the commencement of 2019 on the 23rd January that her solicitor received the payment. On the 21st March, 2019 the plaintiff's records were sent to Mr. M. Saab for an expert report on breach of duty and a report was received from him on the 19th May, 2019 which had certain factual inaccuracies that in relation to what occurred and a statement was sent from the plaintiff to Mr. Saab on the 8th August, 2019 and on the 12th September, 2019 two further witness statements were sent to Mr. Saab as the plaintiff required factual support for certain of the instructions that she had given and on the 16th September, 2019 a report was received from the expert identifying breach of duty and advising of report and causation from a stroke specialist which resulted in the requests being sent to Dr. Starke but no response was received and on the 20th September, 2019 an inquiry was sent to Dr. Subramanin about his availability which was confirmed on the 23rd September, 2019 and on the 24th September, 2019 instructions were sought from the plaintiff correspondence was entered into with the plaintiff in relation to costs on the 30th September and the 2nd October, 2019 and on the 23rd October, 2019 instructions were received from the plaintiff to proceed with Dr. Subramanin and he was furnished with medical reports and instructions from the plaintiff's solicitors on the 31st October and he provided an initial report on the 3rd December. A final report was received from Mr. Saab after review of Dr. Subramanin's report on the 20th December, 2019 and a final report from Dr. Subraminin on the 14th January, 2020 and on the 29th January, 2020 a letter of claim was sent to the defendants care of the State Claims Agency and on the 3rd February, 2020 the application was made to Ms. Justice Murphy and on the 14th February, 2020 a letter was received from State Claims Agency nominating solicitors for service and on the 19th February, 2020 a renewed summons was served on the defendant.
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