Sheila Murphy v Health Service Executive
|Mr. Justice Robert Haughton
|15 January 2021
| IECA 3
|15 January 2021
|Court of Appeal (Ireland)
|Court of Appeal Record Number: 2020/220
 IECA 3
Court of Appeal Record Number: 2020/220
High Court Record Number: 2018/7802 P
THE COURT OF APPEAL
Personal injuries – Renewal – Costs – Appellant appealing from a judgment refusing to set aside an order renewing a Personal Injuries Summons for a period of three months – Whether the balance of justice favoured the renewal
Facts: The appellant, the Health Service Executive, appealed to the Court of Appeal from the judgment of Cross J delivered on 29 September 2020 refusing to set aside the order of Murphy J dated 3 February 2020 made ex parte renewing the Personal Injuries Summons for a period of three months. The order appealed from was dated 16 October 2020 and was perfected on 19 October 2020. Cross J made “no order as to costs”. In the Notice of Appeal there were twelve grounds: grounds 1 and 2 raised the issue of the correct interpretation of O. 8 of the Rules of the Superior Courts 1986 and whether it requires a two stage test or a single test of “special circumstances”; grounds 3–6 pleaded that the trial judge erred in his findings as to the extent of the professional obligation to obtain expert medical opinion before serving a Summons, the requirement of a reasonable expedition in obtaining such expert opinion, and whether and for how long a plaintiff can deliberately refrain from serving a Summons in the knowledge that the Summons will lapse; ground 7 asserted that the trial judge erred in some four respects in finding “special circumstances” and/or “good reason” to renew the Summons; grounds 8 and 9 pleaded that the trial judge erred in holding that the failure to serve a courtesy copy of the Summons did not create prejudice or injustice, or impact on “special circumstances”, particularly where the Summons could have been renewed before it expired or could have been served “on a protective basis”; grounds 10, 11 and 12 pleaded that the trial judge erred in finding that there was no culpable delay on the part of the respondent’s solicitors, or the respondent herself, and in not considering the overall delay in the progress of the case. The notice of the respondent, Ms Murphy, traversed each ground of appeal, and additionally pleaded that the appellant had suffered no specific prejudice, and that the balance of justice favoured the renewal in that the respondent would otherwise suffer prejudice. The respondent raised a cross-appeal in respect of the trial judge’s finding that the respondent’s solicitors should have notified the appellant of the fact of the proceedings at the time of issuing the summons, or have served a courtesy copy. It was pleaded that this is not required by the Rules of the Superior Courts and that such a requirement would be inconsistent with authorities which established that it is inappropriate to serve a summons in professional negligence cases without the necessary support of expert opinion, in this case not received until 14 January 2020, which was shortly followed by the issue of a warning letter on 29 January 2020. It was pleaded therefore that the trial judge erred in law in making no order as to costs.
Held by Haughton J that the trial judge correctly addressed his mind to the balance of justice, and potential prejudice, and exercised his discretion in such a manner that the court should not interfere with his decision to dismiss the motion. Haughton J held that, as he had found that the trial judge erred in his criticism of the respondent for, as he saw it, failing to notify the Health Service Executive of the claim and/or serve a courtesy copy of the summons at an earlier time, and as this was what led him to make “no order as to costs”, it follows that that order should be set aside. In Haughton J’s view the appellant failed in its application in the High Court and there was no good reason to depart from the usual rule that costs should follow the event, a rule enshrined in statute by s. 169 of the Legal Services Regulation Act 2015. Haughton J held that the respondent should be entitled to have her costs in the High Court paid by the appellant, to be adjudicated in default of agreement.
Haughton J held that as the respondent had succeeded entirely on the appeal, it follows that the respondent should also be entitled to the costs of the appeal to be paid by the appellant, such costs to be adjudicated in default of agreement.
JUDGMENT of Mr. Justice Robert Haughton delivered on the 15 th day of January 2021
. This is an appeal from the judgment of Cross J. delivered on 29 September 2020 refusing to set aside the order of Murphy J. dated 3 February 2020 made ex parte renewing the Personal Injuries Summons herein for a period of three months. The order appealed from is dated 16 October 2020 and was perfected on 19 October 2020. Cross J. made “no order as to costs”, from which order there is a cross-appeal.
. This appeal concerns the circumstances in which the court may renew a summons under O. 8, r.1 of the Rules of the Superior Courts 1986, as substituted by the Rules of the Superior Courts (Renewal of Summons) 2018 (S.I. no. 482 of 2018) (“the amended O. 8”), which came into operation on 11 January 2019. In particular it addresses the correct interpretation of the amended O. 8, and what may constitute “special circumstances which justify an extension” under sub-rule (4).
. The background to these proceedings appears from the affidavit of Paul Kelly solicitor sworn on 29 January 2020 on behalf of the respondent, the affidavit of Ruth Finnerty solicitor sworn on 29 April 2020 in support of the application of the defendant/appellant (“HSE”) applying to set aside the renewal of the Summons, the replying affidavit of Mr. Kelly sworn on 3 July 2020, the supplemental affidavit of Ms. Finnerty sworn on 24 August 2020 and the third affidavit of Mr. Kelly sworn on 3 September 2020.
. The proceedings relate to a claim for medical negligence, and as Mr. Kelly avers in his first affidavit arise in circumstances where the respondent was brought by ambulance to the Accident and Emergency Department of Mayo General Hospital at approximately 12.10pm on 19 March 2016, with weakness and loss of power in her left upper limb. The Registrar on duty directed that the respondent be admitted to the female medical ward. Over the course of 19 March 2016 the respondent's condition worsened and she experienced increased weakness and loss of power on her left side. On 20 March 2016 further deterioration in her condition was recorded and she was transferred to the stroke unit at the hospital where she underwent a CT brain scan which revealed a right parietal ischaemic infarct adjacent to the basal infarct. The respondent was an inpatient until 18 April 2016 when she was transferred to St. Joseph's Rehabilitation Unit of the Sacred Heart Hospital until around 1 September 2016.
. The respondent, who was born on 15 June 1939, is now 81 years of age. It is averred by Mr. Kelly that she is a frail, elderly lady in poor health who lives alone in County Mayo.
. The following is the chronology of events starting with the respondent's first contact with her solicitors:-
19/20 March 2018 – The basic period of 2 years provided for by the Statute of Limitations 1957 (as amended) for the issue of personal injury proceedings expired.
29 April 2018 – Website query from the respondent.
15 May 2018 – Telephone consultation between the respondent and her solicitors. Data access request issued to Mayo General Hospital.
11 July 2018 – Respondent's medical records received.
31 August 2018 – A Protective Personal Injuries Summons is issued in these proceedings. This states, under the heading “Particulars of Negligence and Breach of Duty” that such particulars “… may be adduced upon receipt of medical reports from expert medical practitioners in the relevant field either prior to or on the hearing of the action”, and para. 10 pleads:-
“As of the date of issue of the Personal Injuries Summons herein the Plaintiff is unable to include therein full particulars of all acts of the defendants constituting the wrong, particulars of negligence, and breach of duty, particulars of personal injuries and particulars of special damage in circumstances where the plaintiff issues this Personal Injuries Summons in order to protect their position under the Statute of Limitations 1957 (as amended) and prior to having received all her medical records and expert reports from medical practitioners in the relevant field. The plaintiff therefore reserves the right to adduce all details required by Order 1A of the Rules of the Superior Courts upon receipt of all expert reports and medical records in this regard. The plaintiff relies on this statement for the purposes of Order 1A, Rule 6 of the Rules of the Superior Courts.”
13 September 2018 – request to respondent for payment of outlay sent by email, but missed by the respondent and only noted in January 2019.
21 March 2019 – medical records sent to Mr. M. Saab Consultant in Accident and Emergency Medicine, and a report sought on breach of duty.
19 May 2019 – an “initial report” obtained from Mr. Saab with factual inaccuracies in relation to events on 19 March 2019. Mr. Kelly requests statements from witnesses in relation to factual circumstances.
8 August 2019 – statement from the respondent and statements from two further witnesses obtained, and sent to Mr. Saab on 12 September 2019.
1 September 2019 – The Personal Injuries Summons which issued protectively on 31 August 2018 expired.
16 September 2019 – Mr. Saab's further report received identifying breaches of duty at Mayo General Hospital, but advising that a separate report be required from a stroke specialist in relation to causation.
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