Roche v Clayton

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 08 May 1998
• Neutral Citation: 1998 WJSC-SC 13875,1999 WJSC-SC 7198
• Docket Number: (129/97),[S.C. No. 253 of 1997]
• Court: Supreme Court
• Date: 08 May 1998

ROCHE v. CLAYTON, FIELDING, McNALLY, O'CONNELL & RIORDAN PRACTISING AS M.J. HORGAN & SONS, SOLICITORS

AN CH ÚIRT UACHTARACH

BETWEEN

ANTHONY ROCHE

Plaintiff

-V-

DAVID CLAYTON, LUCIA FIELDING, PATRICK McNALLAY MICHAEL O'CONNELL AND JAMES RIORDAN PRACTISING UNDER THE STYLE OF: M.J. HORGAN & SONS, SOLICITORS

Defendant

1998 WJSC-SC 13875

O'Flaherty J.,

Keane J.,

Lynch J.,

(129/97)

THE SUPREME COURT

1 8th day of May, 1998, by O'Flaherty J. [KEANE, LYNCH CONC]

2 This is an appeal brought by the defendants from the judgment and order of the High Court (Johnson J.) of the 17th February, 1997, in which he refused to set aside an order that had been granted by Mr. Justice Carney on an ex-parte application by the plaintiff in person renewing a summons that he had issued outside the twelve months period during which a summons has to be served and in which it was not served.

3 I give the sequence of events as follows about which there is not any difference between the parties. On the 5th March, 1985, Mr. Roche was involved in a road traffic accident in which he sustained whiplash injuries and shock. He also, we are told, accentuated some existing depression that he had. On the 5th September, 1985, proceedings were issued in the Circuit Court. On the 15th December, 1986, the proceedings were transferred to the High Court, the view being taken that this was justified because of the actual injuries he sustained and his progress, or lack of progress, thereafter.

4 In July, 1990, without going to court, the proceedings were settled. It appears that there was a conference in the office of Mr. O'Connell who is one of the firm of M.J. Horgan & Son, solicitors. With the advice of very able counsel the matter was settled. The rest was silence as far as the defendants were concerned until they got a letter from the plaintiff, dated the 17th November, 1995. The letter goes as follows:-

"Dear Sirs,"

5 You acted for me in relation to a road accident I was involved in some years ago involving the above defendant [that was a person named Ronayne], which was settled for £12,500 in 1990.

6 It now seems that the injuries I suffered were more serious than the amount of the settlement would justify, and I must conclude that the amount for which the case was settled on the advice of your firm was totally inadequate.

7 Please note that I [am] now consulting new solicitors, and you should also note that I intend to have proceedings issued against your firm."

8 It would appear that that letter might have been drafted at an earlier date because there is a date 20th December, 1994, on it which is crossed off. But be that as it may, in fact Mr. Roche had in person issued a plenary summons against the firm of solicitors on the 27th April, 1995.

9 He tells us that prior to that he had contact with a solicitor Mr. Anthony Murphy, and that he had indeed paid him over money to arrange for the issue of the plenary summons. He says, and I make no judgment about this because Mr. Murphy is not a party to these proceedings, that he did not get a good service from Mr. Murphy. Mr. Murphy did not issue the proceedings so he had to issue them himself. Then Mr. Murphy seems to have been on the scene in the course of the next year and Mr. Roche tells us that he was asking him to do something about serving the plenary summons.

10 The thing that is crystal clear is that there was no attempt made to serve the summons in the course of the twelve months. The plaintiff lives in Cork and the firm of solicitors are in Cork, in the South Mall. He knew from the terms of the summons, because it is set forth on the face of it, that it has to be served within twelve months.

11 His case really comes to this: that he was let down by Mr. Murphy. Mr. Murphy, according to what Mr. Roche has put before us, was saying that one needed medical reports before one could serve the plenary summons, but of course that is nonsense - not to make too fine a point of it. You do not need medical reports at all. These have nothing to do with the actual service of the summons.

12 In any event, the plaintiff swore an affidavit on the 15th July, 1996, and this was to ground his application to renew his summons. The order was granted by Mr. Justice Carney on the 21st October, 1996, on his ex-parte application. Then the matter came before Mr. Justice Johnson on the defendant's application to have that renewal set aside. Mr. Justice Johnson, according to the note of his judgment, indicated that he felt that the order renewing the plenary summons should not be set aside as the plaintiff would be statute-barred if the summons was not renewed. He states that he felt that the Supreme Court decision in Baulk .v. Irish International Insurance Company Limited meant that the summons should be renewed, although there was still a discretion. He indicated that he was exercising his discretion not to set aside the order and he was therefore refusing the application of the defendants.

13 The relevant Order is contained in Order 8, r 1 which provides as follows:-

"No original summons shall be in force for more than twelve months from 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. 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 a 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 inclusive, and so from time to time during the currency of the renewed summons."

14 So what the rules specifies is that one of the grounds on which a summonses can be renewed is that "if reasonable efforts have been made to serve such defendant". That clearly does not apply. "Or for such other good reason". That matter of good reason was considered in the case of Baulk .v. Irish International Insurance Company Limited [1969] IR 66, referred to in the High Court judge's judgment. The matter was also considered in the decision of this Court in McCooey .v. Minster for Finance [1971] IR 159,as well as in the recent decision of this Court, O'Brien .v. Fahy, in which Mr. Justice Barrington delivered his judgment on the 21st March, 1997, with Mr. Justice Lynch and Mr. Justice Barron concurring. The upshot of these three decisions is clear: that there is certainly a wide discretion in the judge of the High Court to renew a summons. But there must be some good reason. Here we really have got no good reason at all. The only reason advanced by Mr. Roche is that he was let down by Mr. Murphy. That has nothing to do with the defendants. We must make an order that renders justice between the two immediate parties to the litigation. It seems to me that no good reason has been advanced at all. He did know that he had to serve the summons. In a sense (if he is correct), he had been let down by Mr. Murphy before he ever issued the summons because he says he gave money to Mr. Murphy to issue the summons and he did not issue it.

15 I cannot detect that there is any good reason. It is not a good reason in light of O'Brien .v. Fahy to renew a...