Irish Court of Appeal

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Cite as: [2019] IECA 256

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THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 256

Record Number: 2018/497

Peart J.

Baker J.

Costello J.

BETWEEN:

LISA LAWLESS

PLAINTIFF/APPELLANT

AND

BEACON HOSPITAL, BEACON HOSPITAL SANDYFORD LIMITED

FIRST AND SECOND DEFENDANTS

AND

MO’IAD ALAZZAM, ROBERT HANNON AND ADNAN HAFEEZ

THIRD, FOURTH AND FIFTH DEFENDANTS/RESPONDENTS

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15TH DAY OF

OCTOBER 2019

1. This is an appeal from an order of the High Court (Binchy J.) dated 20th December 2018

whereby for the reasons contained in a written judgment delivered on the 14th day of

December 2018 ([2018] IEHC 736) the appellant’s application for an order under Order 8,

rule 1 of the Rules of the Superior Courts for the renewal of her personal injury summons

as against the third, fourth and fifth named defendants/respondents (“the respondents”)

was refused. This application was refused essentially because the trial judge was not

satisfied that any “other good reason” had been established as to why service had not

been effected during the period of twelve months from date of issue thereof.

2. Having heard oral argument from both sides on 22nd July 2019, the members of the

Court were each agreed that the appeal should be allowed and therefore that an order

should be made for the renewal of the personal injury summons, and so indicated to the

parties at the conclusion of the hearing. The Court stated that it would give its reasons in

a written judgment at a later date.

3. This appeal raises an important issue, namely how the court should approach the

question of what may or may not constitute a “other good reason” in professional

negligence proceedings, where on the authorities a plaintiff ought not to commence such

proceedings, or at least not serve same upon the professional defendants named, until in

possession of sufficient by way of expert opinion to enable the plaintiff and his/her

advisers to be satisfied that there is at least a bona fide arguable case of negligence to be

made out against the defendants – see e.g. Cooke v. Cronin (unreported, Supreme Court,

14 July 1999; Moloney v. Lacey Building & Civil Engineering Ltd [2010] 4 IR 417.

4. This appeal is important for the respondents for the very obvious reason that it is a

serious matter for the respondents to have their professional reputations impugned by

allegations of negligence in their treatment and care of the appellant, let alone to have a

finding of negligence made following a full hearing of the case.

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5. It is important to the appellant also because if the trial judge was correct to refuse her

application for renewal of her personal injury summons, she will be forever precluded

from pursuing her claims of negligence against these respondents and therefore,

potentially, from recovering substantial damages. The refusal, of course, does not prevent

her from proceeding against the first and second defendants who did not raise any issue

in relation to service of the summons upon them, and who simply entered an appearance

in the normal way.

6. There is no doubt from the details of the appellant’s claim appearing from the pleadings,

and from the description by the trial judge in his judgment of her having undergone “a

torrid time” between December 2013 and May 2015 during and indeed following her

treatment by the respondents, that she has suffered greatly, and has been left with

significant adverse sequelae following her illness, treatment and care during that period.

The refusal of her renewal application under O.8, r.1 RSC would have the most profound

consequences for her, provided, of course, that her allegations of negligence are

supported by expert evidence.

7. At para. 4 of his judgment the trial judge set out a concise description of the background

to the appellant’s claim, which provides a relevant factual context against which to

consider the applicable legal principles. At para. 4 the trial judge stated;

“4. It is claimed that the plaintiff was received into the care of the 1st/2nd named

defendant’s hospital initially on 3rd December, 2013, under the care of the third

named defendant who performed a diagnostic laparoscopy and, thereafter,

diagnosed the plaintiff with extensive endometriosis. He advised her to undergo a

colonoscopy and referred her to the fourth named defendant for further assessment

and/or advice. She was admitted to the same hospital for this purpose on 7th

January, 2014. It is claimed that the plaintiff was admitted (for reward) by the first

and second named defendants to hospital again on 1st April, 2014, where she

underwent surgery performed by the third named defendant. Her appendix was

removed and endometriosis was removed from the ovaries and pelvis and the

bowel was resected in two places. Subsequently, the plaintiff became very unwell

and was in considerable pain and discomfort. On 5th April, 2014, the plaintiff was

attended by the third named defendant who diagnosed the plaintiff with a possible

perforation and investigated and considered her for further surgery. She underwent

an operative procedure on 5th/6th April, 2014, during which a perforation of the

bowel was repaired. Thereafter, the plaintiff developed septicaemia and required

treatment in intensive care for approximately a week. She convalesced for six

months and was readmitted on 16th September, 2014, in order to conduct a

reversal of previous procedures. Thereafter, she became very unwell again and

developed pneumonia. She again developed septicaemia and her kidneys ceased to

function. She required dialysis for five days and treatment in the intensive care unit

for eight days and was treated as an inpatient for almost 4 weeks. She required

further admission to hospital owing to dehydration and was subsequently referred

to St. Vincent’s Hospital owing to difficulties retaining fluids. It is apparent from all

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of this that the plaintiff claims to have suffered very severe injuries at the hands of

the defendants. Disregarding liability, assuming that all those events occurred, it is

also apparent that the plaintiff had what can only be described as a torrid time

between the beginning of December 2013 and May 2015, and perhaps even later.”

8. The personal injury summons was issued by the plaintiff’s solicitor on 2nd December 2015

despite the fact that no expert opinion had by that date been obtained in order to support

a claim of negligence against the defendants named. It was issued on a so-called

“protective basis” in order to avoid the claim becoming statute barred. The proceedings

were not served at that point. Neither were the named defendants notified of the

existence of the proceedings, nor indeed that any proceedings were being contemplated.

As noted by the trial judge (para 6) this is explained by the appellant on the basis that to

have done so would have made it necessary for the respondents to notify their insurers of

any such correspondence, and that it may have had an adverse consequence for them as

a result.

9. I should add at this point that there may be cases where it is acceptable practice to issue

a personal injury summons on a protective basis given the requirement in cases of

professional negligence that the plaintiff should have a stateable basis for his/her claims

of negligence which are supported by appropriate expert opinion, such as where, as in the

present case, the first expert advises that the plaintiff’s solicitor obtain a report from a

different specialist.

10. I would add further that where such proceedings are not being served within the twelve-

month period for service following the date of issue, it would be prudent for the plaintiff’s

solicitor to at least notify the named defendants that the proceedings have been issued

and to explain why for the moment at least they are not being formally served, given that

in all probability an application to renew the summons will be necessary under O. 8, r. 1

RSC. I should not be taken as stating that it is a requirement that the defendants be put

on notice. I am merely stating that it may be considered to be prudent to do so.

11. As noted by the trial judge (para. 7) the appellant’s solicitor stated in his grounding

affidavit that following the issue of the personal injury summons he sought expert reports

from a urogynecologist and a colorectal surgeon. Reports received from these experts

were supportive of the appellant in terms of both liability and causation. In the light of

those reports counsel was in a position to draft an amended personal injury summons.

However, it appears that one of these experts advised the appellant’s solicitor that a

further report from a different expert should be sought in relation to aspects of the

appellant’s treatment which were outside his sphere of expertise. Accordingly, the

appellant’s solicitors sought such a report from a colorectal surgeon in the United

Kingdom. There was apparently some delay in obtaining that report and it did not arrive

until July 2017 despite the appellant’s solicitors writing reminder letters to the expert in

question.

12. Because of this delay in the receipt of that additional report (which did not arrive until

July 2017), the appellant’s solicitor decided that the personal injury summons should

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nevertheless be served on the defendants rather than further delay service pending

receipt of the advised report. Accordingly, the proceedings were served by him on all the

named defendants on 4th May 2017. By letter of that date, a copy of the personal injury

summons and a draft of the proposed amended personal injury summons were served.

The date of service was however some six months outside the 12-month period from date

of issue of the proceedings, namely 2nd December 2015. The personal injury summons

had not been reviewed prior to this service by way of an application under O.8, r. 1 RSC.

13. The first and second defendants (the Beacon Hospital) entered an appearance in the

normal way following service. However, solicitors acting for the present respondents (the

surgeons) indicated that they were entering an appearance under protest, although I note

that on the form of appearance the words “under protest” have been crossed out. I

surmise that this is because the rules make no provision for an “appearance under

protest” and that on presentation of the forms of appearance at the central office of the

High Court the words “under protest” were accordingly crossed through on the form.

There is no provision in the rules for the entry of an appearance “under protest” in order

to preserve any entitlement to contest the validity of service at some later stage. It is

clear from the rules that if a defendant claims that the service upon him of proceedings is

in some way invalid, that defendant must before entering any appearance bring an

application by way of notice of motion under O. 12, r. 26 RSC to have service set aside. If

such a defendant enters an appearance, the effect thereof is to waive any objection to the

manner in which service has been effected, and to cure any such defect (see e.g. Walsh J.

in Baulk v. Irish National Insurance Co. Ltd [1969] I.R. 66 at p. 71 who stated “… if [the

summons] had been served after that period and a non-conditional appearance had been

entered, the appearance would have cured the defect in the service”). Entry of

appearance by a defendant is an acknowledgement that the summons has been served

and acts as a notification to the court that this is the case. That effect cannot be

suspended or qualified in any way by entering an appearance under protest. There is no

provision in the rules enabling that to be done. This has long been the position – see e.g.

Delaney & McGrath on Civil Procedure 4th ed. Round Hall at para. 4-12 where the authors

state:

“4-12 An unconditional appearance also constitutes an acknowledgement that the

defendant is on notice of the proceedings and, therefore, constitutes a waiver of the

right to object to any defect in service such as the service of an expired

summons...”

Authority cited for this statement includes the judgment of Walsh J. in Baulk, and those of

Singleton LJ and of Denning LJ in the Court of Appeal in Sheldon v. Brown Bayley’s

Steelworks Ltd [1953] 2 QB 894. Those judgments make it pellucidly clear that an

unconditional appearance acts as a waiver of any entitlement to contest the validity of

service and cures any defect in service. They make clear also that a summons not served

within twelve months does not become a nullity but remains a summons duly issued

which is capable of being renewed, and in so far as previous authority such as the

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judgment of Lord Goddard in Battersby v. Anglo-American Oil Co. Ltd [1944] 2 All ER 389

had expressed the contrary view, albeit on an obiter basis, it was incorrect.

I will return to this question later in this judgment.

14. Having said that, the rules do make specific provision for the entry of a conditional

appearance in certain circumstances where a defendant who has been served with

proceedings wishes to contest the jurisdiction of the court to determine the proceedings.

A conditional appearance is entered for that purpose alone and does not signify any

submission by the defendant to the court’s jurisdiction. Where the respondents’ solicitor

was raising in correspondence the validity of the service effected on the respondents in

the absence of any renewal order having been obtained, they ought to have not entered

an appearance, and instead moved under O.12, r. 26 RSC to set aside service. I accept

that the respondents’ solicitor asked the appellant’s solicitors in correspondence if an

order of renewal had been obtained prior to service, and received no information in

response.

15. Nevertheless, despite indicating that the validity of service upon the respondents was

being contested on the basis that the summons had expired prior to service, an

appearance was entered as explained above, and further the respondent’s solicitors

served a notice seeking further and better particulars of the plaintiff’s claim on 5th

September 2017, as did the solicitors for the first and second named defendants. The

further and better particulars sought by the respondents were provided by the appellant’s

solicitors in their two letters dated respectively 15th January 2018 and 16th February

2018.

16. In addition to entering an appearance, and furnishing a notice for particulars, the

respondents’ solicitors provided, as had been requested, a consent (albeit on certain

terms) to the amendment of the personal injury summons as proposed in the draft

amended summons which had been sent with the personal injury summons on 4th May

2017.

17. Despite considering that an application to renew the summons under O. 8, r. 1 RSC was

unnecessary once the respondents had entered an appearance, and had taken the step in

the proceedings of seeking further and better particulars, the appellant’s solicitors

proceeded to bring an application to renew the personal injury summons under O.8, r.1

RSC and in that regard issued a notice of motion on the 22nd February 2018 returnable in

the High Court on 3rd July 2018, being the first available return date.

18. The appellant’s solicitor acknowledged in his grounding affidavit that he ought to have

obtained an order for renewal of the personal injury summons under O.8, r.1 RSC prior to

the expiry of 12 months from the date of issue, or even thereafter and prior to service of

the proceedings upon the defendants. Nonetheless, the appellant submitted that there

was “good reason” for the Court to exercise the jurisdiction to renew this personal injury

summons having regard to all the circumstances in the case. In so submitting, it was

pointed out that service had been affected only five months after the expiration of 12

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months from the date of issue of the proceedings, and also that not only was an

appearance entered by the respondents, but that the respondents had also fully engaged

with the proceedings following service by delivering a notice seeking further and better

particulars, and which had been promptly responded to by the appellant. The appellant

also referred to the fact that the respondents had not sought to set aside service by

making an application in that regard under O. 12, r. 26 RSC, as they would have been

entitled to do.

19. On the application to renew the proceedings, the appellant relied also on the fact that the

respondents’ solicitors had in fact provided a consent to the proposed amended personal

injury summons (albeit on certain terms) although it was accepted that the respondents

were maintaining their objection that a renewal order should have been obtained prior to

service of the proceedings. The appellant relied also on the fact that one of the expert

reports obtained by her solicitor prior to service of the proceedings had advised obtaining

a report another expert in relation to aspects of the appellant’s claim which were outside

that author’s area of expertise.

20. The respondents opposed the application to renew the summons. In doing so, they

pointed to the fact that service had in fact been effected on the respondents prior to

receipt by the appellant’s solicitor of the additional report which had been advised should

be obtained. This, in their submission, demonstrated that it had not been necessary to

await the arrival of that a prior to serving the defendants named in the proceedings, and

therefore that service could and should have been effected prior to the expiry of the 12-

month period following commencement of the proceedings. In those circumstances it was

submitted that there was no “other good reason” for the court to exercise its discretion to

renew the personal injury summons. They submitted also that the granting of an order to

renew the proceedings would have the prejudicial effect of precluding them from relying

on the Statute of Limitations 1957, as amended, by way of defence to the appellant’s

claims.

The trial judge’s judgment

21. The trial judge set out with admirable clarity the background to the application to renew

the personal injury summons, and he referred to the relevant correspondence between

the parties. He concluded his reference to correspondence by stating the following at

para. 15 of the judgment:

“15. On 15th September 2017 the solicitors for the plaintiff wrote to [the respondents’

solicitors] again inviting them to accept service of the amended personal injury

summons, and to enter an appearance (by implication, an unconditional

appearance) on behalf of those defendants. They went on to state that failing such

a response, it would be necessary to apply to renew the summons and to effect

service thereafter. In the same letter they stated that they would be relying upon

the fact that it was necessary to go to the extent of obtaining an independent

medical opinion on liability and thereafter to amend the proceedings, as a

substantial reason grounding the application to renew the summons. They refer

specifically to the difficulties in obtaining records and expert reports for the

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purposes of medical negligence actions. [the respondent’s solicitors] replied to this

correspondence on 12th October, 2017, repeating what they had said in earlier

correspondence, and stating that they had not been provided with any details in

relation to any application to renew the personal injury summons. There was a

further exchange of letters in December, which is not of any consequence to this

application. The solicitors for the plaintiff sent “O’Byrne” letters to the 3rd to 5th

named defendants on 16th February, 2018, and on 22nd of February, 2018 they

caused the issue of this motion.”

22. Having concluded his summary of the factual background to the renewal application the

trial judge set forth the provisions of O.8, r. 1 RSC which provides as relevant:

“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. After

the expiration of twelve months, an application to extend time for leave to renew

the summon 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 inclusive, … and a summons

so renewed shall remain in force and be available to prevent the operation of any

statute whereby a time for the commencement of the action may be limited and for

all other purposes from the date of the issuing of the original summons.”

23. Having set forth the rule the trial judge stated:

“It is not contended by the plaintiff or her solicitors that any efforts were made to

serve the defendants until the 4th May 2017. Accordingly, this application depends

upon the plaintiff establishing that there was “other good reason” for not serving

the summons before that date” [emphasis provided].

24. I do not agree with the trial judge’s statement that the application “depends upon the

plaintiff establishing that there was “other good reason” for not serving the summons

before that date”. It is not consistent with the words used in the rule. The rule in my view

enables the court to order renewal either where reasonable efforts to serve have been

made within the time, or for other good reason. The words “other good reason” are not

linked to the failure to serve the summons as the trial judge states. Rather, the court

must consider whether there is some other good reason for exercising the discretion to

order that the summons be renewed. The emphasis is not on establishing some other

good reason why the summons was not served. The phrase “other good reason” is free-

standing and separate from the first limb or satisfying the Court that reasonable efforts to

serve have been made within the 12-month period, and is not confined to establishing a

reason why the summons could not have been served within the specified time. The

requirement is to establish other good reason why the summons should be renewed. That

is a different and indeed a wider focus which allows the Court to take account of all the

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circumstances of any particular case in the exercise of its discretion. In my view the trial

judge fell into error by construing the rule as he did, leading him ultimately to refuse to

grant the order sought.

25. I should add that this position was made clear by the majority of the Supreme Court in

Baulk v. Irish National Insurance Co. Ltd [supra] where Walsh J. (with whom O Dálaigh

C.J. agreed) stated at p. 71:

“In my view, on the facts of the present case, it could not be said that reasonable

efforts had been made to serve the defendants because in fact no effort at all was

made to serve the defendants within the period of 12 months. The question then

remains whether there was any other good reason for which the Court ought to

renew the summons. While the phrase “other good reason” may refer to the

circumstances or factors which throw light on the failure to serve the summons

within the 12 months, in my view it is not exclusively referable to the question of

service but refers also to any other reason which might move the Court, in the

interests of doing justice between the parties, to grant the renewal… .”

It can be noted also that in the same case McLoughlin J. took a different view of the

phrase “or for other good reason” in O.8, r.1 RSC stating at p. 7373, as did the trial

judge, that “this phrase must, in my view, be interpreted as meaning good reason for not

serving the summons within the 12 months during which the summons was in force”. But

that was a view with which the majority was not in agreement.

26. This question was more recently addressed by Finlay Geoghegan J. in her judgment in the

High Court in Chambers v. Kenefick [2007] 3 I.R. 526 where in a passage with which I

am respectfully in full agreement at p. 530 she stated:

“… the submissions made on behalf of the defendant lead me to the conclusion that

the proper approach of this court to determining whether or not it should exercise

its discretion under O.8, r. 1, where the application is based upon what is referred

to therein as “other good reason”, is the following. Firstly, the court should consider

is there a good reason to renew the summons. That good reason need not be

referrable [sic] 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.”

27. That judgment is not referred to in the trial judge’s judgment. Given that he went into

some detail in relation to the legal submissions made to him by both parties, it seems

probable that neither Baulk nor Chambers v. Kenefick may not have been opened to him.

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28. In his judgment much of the trial judge’s focus was on when the expert medical opinions

had been sought by the appellant’s solicitor. He noted that a report which was supportive

of the appellant’s case had been received by her solicitor on the 4th July 2016 (just seven

months from date of issue of the proceedings). That is the report which advised that

another report from a colorectal surgeon should be obtained, but the trial judge notes

also that no details were given as to when that additional report was sought. However, he

noted that counsel had drafted an amended personal injury summons in October 2016

being still within the 12-month period for serving the summons already issued. The trial

judge went on to state that “it has not been suggested that the amended summons

received from counsel at that time was any different to that eventually served”. Having so

stated, the trial judge stated at para. 27:

“27. In any case, the plaintiff could have applied at that time or within 12 months from

the date of issue of the original summons, to renew the summons, and no

explanation has been given as to why she did not do so. Nor has any explanation

given as to why it took as long as it did, either to serve the proceedings (on 4th

May, 2017) or to issue this motion (on 22nd February, 2018)”.

29. At para. 35 of his judgment the trial judge acknowledged that the proceedings had been

issued against three different hospital consultants, each with different areas of expertise,

and went on to state that “inevitably, this raises certain complexities, and it is not difficult

to see how this could give rise to delay in the issue or progression of proceedings”. He

then considered the explanations given by the appellant’s solicitor for the delay in serving

the proceedings, namely that it had been necessary to obtain medical reports in relation

to liability and causation from different experts. However, the trial judge remarked upon

the fact that no details or dates had been given as to when those reports were available

to the solicitor. The trial judge remarked also that the solicitor was “somewhat vague as

to what happened after October 2016”. That is a period of time when, according to the

appellant’s solicitor, he was trying to get the additional expert report that had been

advised in one of the reports originally obtained. The further advised report was

apparently not received by the solicitor until July 2017, and the trial judge stated in that

regard that two issues arose, which he described as follows:

“1. Firstly, the plaintiff had already obtained a report from a colorectal surgeon that

was sufficient to enable the plaintiff to ask counsel to draft an amended personal

injury summons which was available from 24th of October, 2016. It is unclear why

a further report from a colorectal surgeon was required. But assuming that it was

so required in order to clarify certain issues, it remains the fact that there was

sufficient evidence available to the plaintiff to plead a case in relation to the

matters covered by this area of expertise as of October, 2016. If more detail

became available at a later date, which required to be pleaded, it would have been

possible to make an application to amend the pleadings at that point in time.

2. Secondly, in the event, it has not been suggested that the report commissioned

from the colorectal surgeon, and received in July, 2017, made any difference or

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provided the plaintiff with vital evidence that had hitherto been unavailable. That

does not mean of course that the plaintiff was not justified in seeking this report,

especially if it had been recommended by the urogynecologist. But it seems very

clear that this report was not required in order to serve the proceedings, and this

has not been asserted on behalf of the plaintiff.”

30. Having stated thus, the trial judge at para. 37 of his judgment stated:

“37. There is, therefore, an unexplained delay between the period of 24th October, 2016

and 4th May, 2017, and it was during this period that the personal injuries summon

expired, on 1st December, 2016. It follows therefore that there has been no good

reason (nor, indeed, any reason at all) advanced for the delay in the service of the

proceedings in that period.”

31. The trial judge then proceeded to consider other arguments made by the appellant in

support of the contention that there was “other good reason” to renew the summons. The

appellant relied upon the delivery by the respondents of a notice for further and better

particulars to which replies were provided promptly by the appellant. It was contended

that thereby the respondents had “acceded to the jurisdiction of the court”, and that it

would be unjust to permit the respondents to “escape liability for their alleged

substandard care in circumstances where the case will proceed against the hospital in

which they worked, and that the [first] and second named defendants may wish to claim

indemnity and contribution from the 3rd to 5th named defendants”. Without going into

the trial judge’s conclusion in any detail in this regard, as in my view it is perhaps

unnecessary to do so, it is sufficient to say that the trial judge did not consider this

ground to constitute a good reason for granting the renewal application.

32. The appellant also argued that the respondents ought to have brought a motion to set

aside service of the summons under O. 12, r. 26 RSC if they wished to maintain their

objection to the validity of service of the proceedings. However, the trial judge considered

that a party who has been served with an expired summons could not be under any

obligation to bring such an application. He was satisfied that once the party served had

raised its objection in this regard with the other party “the onus is on that [other] party to

take whatever action is necessary to regularise matters because he or she can hardly be

entitled to progress the proceedings on the basis of an expired summons”.

33. Again, I would take a different view to that expressed by the trial judge. Firstly, a

summons which has “expired”, to use the trial judge’s phrase, is not a nullity. This matter

is addressed also in Baulk by Walsh J. where at p. 71 he stated:

“In my view Order 8, r.1 of the Rules of the Superior Courts, in speaking of “no

original summons shall be in force for more than 12 months from the day of the

date thereof”, does not mean that the summons becomes a nullity after that date

but that it shall not be in force for the purpose of service after that date, unless

renewed by leave of the court.”

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Walsh J went on to refer to the court’s power to renew the summons, and I have already

referred to this statement, again at p. 71 to the effect that where service is affected after

the period of 12 months but without renewal, the entry of an appearance would cure the

defect in the service.

34. I cannot therefore agree that the defendants were not under any obligation to bring an

application under O. 12, r. 26 RSC where they wished to question the validity of the

service of these proceedings outside the period of 12 months from date of service absent

a renewal order. They ought to have done so, as stated already, and prior to the entry of

an appearance as specified by the rule.

35. The trial judge was satisfied that the respondents had not sought to argue that they

would suffer any particular prejudice if the personal injury summons was renewed by

order of the court, save that they would be deprived of making an argument by way of

defence under the Statute of Limitations, 1957, as amended, if same is renewed. I will

consider the question of prejudice to either party when considering in due course the

balance of justice.

36. In para. 43 of his judgment the trial judge summed up his conclusions by stating as

follows:

“43. While it is clear from the summary of the plaintiff’s injuries that I have set out

earlier in this judgment that the injuries alleged by the plaintiff in these

proceedings are very serious, the plaintiff has not advanced any good reason as to

why the personal injury summons was not served during the lifetime of the

summons. No notice of the proceedings was given to the defendants in advance of

service of the same on 4th May, 2017. No reason was given as to why an

application to renew the summons was not made before it expired. The fact of its

expiration was raised implicitly by the solicitors for the 3rd to 5th named

defendants on 30th May, 2017 and again expressly on 21st June, 2017 but the

application to renew was not made until 22nd February, 2018. The lapse in time

between the date of expiration of the summons (1st December, 2016) and the date

of the application to renew the summons (22nd February, 2018) was almost fifteen

months. While it is true to say, as the applicant has argued, that there are many

cases in the authorities where the delay in serving/applying to renew the summons

was much greater than in this case, and that the length of the delay is a factor to

be taken into account in determining where the interests of justice lies, this is so

only if the applicant can first establish a good reason for failing to serve the

summons. That this is so is clear from the decision of Peart J. in Moynihan which

has been repeatedly approved.”

37. I should say something arising from the reference to my judgment in Moynihan v.

Dairygold Cooperative Society Ltd [2006] IEHC 318. That was a case where I considered

what was meant by the phrase “other good reason”. The trial judge noted that

subsequent to Moynihan, Kelly P. in Whelan v. Health Service Executive & anor

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[2017] IEHC 349 had quoted extensively from my said judgment in Moynihan, and in particular

had referred to my following paragraph therein:

“The court is required in my view to reach the conclusion not only as to what is the

true reason why the summons was not served within the proper time, but also to

conclude that the reason justifies the failure to serve. It is in that sense that the

word ‘good’ must be read. Even if the court is satisfied that the reason is a good

reason, it must then proceed, where prejudice is alleged, to consider matters such

as the length of the delay, the conduct of the proceedings generally to date,

whether this defendant was alerted in any timely manner or at all by the plaintiff

that a claim might be made, and whether in all the circumstances the prejudice to

the defendant in having to defend the proceedings after the length of time involved

is such as to outweigh the undoubted prejudice to the plaintiff in being in effect

debarred from proceeding with the claim at all, or whether, on the other hand, the

prejudice to the plaintiff is in all the circumstances such as to justify depriving the

defendant to his/her right to avail of the Statute of Limitations. In a general sense

the court is engaged in determining where the interests of justice between the

parties lies.”

38. The trial judge came to the view that because the summons could as easily have been

served prior to the expiry of the 12-month period as it was on the 4th May 2017 (since by

that date the additional report advised and sought had not been received) the explanation

for not having served the proceedings was not “a good reason” because it did not justify

the delay in service, as I expressed it in Moynihan. I did, of course, state in Moynihan that

a good reason is a reason that justifies the delay in service. However, in my view the trial

judge took too narrow a view of the concept of justification. He considered that if the

summons could have been served within the time provided, then the failure to do so was

not justified by waiting for a report that in fact did not arrive before service was actually

affected. In my view that is too strict or narrow an application or construction of what I

expressed to be a “good reason” in Moynihan, and in any event fails to adhere to the

construction of the rule appearing in Baulk and in Chambers v. Kenefick as already

described.

39. In professional negligence cases, and perhaps particularly in medical negligence cases,

the authorities make clear that a plaintiff ought not to serve proceedings on professional

defendants without there being expert evidence which supports the claims of negligence

being made on a prima facie basis at least. In the present case the opinion of experts in

three different areas of expertise were required and were sought. It is true that two

reports were received well within the period of 12 months from the date of issue of the

proceedings. One of those reports recommended that an additional report be obtained

from a specialist in a different area of expertise. That report was sought by the solicitor

for the appellant, but there appears to be no doubt but that there was some delay in

obtaining same. In my view, if a prudent solicitor, acting responsibly and in a bona fide

manner, decides that he/she should obtain the additional report from another expert as

advised by an existing expert, prior to serving the professional defendants, his client

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should not be prejudiced by any delay in so doing, provided of course that the delay was

not unreasonable, and particularly where that delay is not caused by any inaction on the

part of the solicitor. Medical negligence proceedings by their very nature are complex, and

have very serious consequences for an unsuccessful plaintiff, and indeed very serious

consequences for the professional defendant who may be found to have acted negligently.

They are cases in which the plaintiff’s solicitor is obliged to act professionally and with

reasonable prudence, so that professional defendants are not irresponsibly vexed by

proceedings based on allegations of negligence for which there is not a sufficient prima

facie evidential basis. If a solicitor, acting responsibly and in a bona fide manner decides

to withhold service of such proceedings until advised reports are in his/her possession,

that in my view is a good reason justifying the renewal of the summons under O.8, r. 1

RSC., subject always to the proviso already referred to, namely that the delay involved is

not found to have been unreasonable. In such circumstances the plaintiff ought not to

suffer the very serious prejudice of having her claim terminated because her solicitor

acted in his/her view prudently, or even with an excess of caution, though there must be

limits to the latter. Each case must be considered on its own merits and in the light of all

its particular facts and circumstances.

40. In the present case, while the trial judge was perhaps somewhat critical of the lack of

detailed information as to when the third report had first been sought, there is no

suggestion that the appellant’s solicitor was acting other than in a responsible and bona

fide manner in seeking that report. It is also clear that when he experienced a delay in

obtaining that report, despite writing to the expert on more than one occasion, he decided

that the prudent course was to then proceed to nevertheless serve the proceedings on the

defendants despite the absence of that additional report. I would take the view that the

solicitor in question was acting prudently, perhaps overly so, given that he was already in

possession of two reports which were supportive. But I would decline to visit upon him

and his client the dire consequence of refusing to renew the personal injury summons

because he may have acted with excessive prudence. In my view the facts and

circumstances constitute a good reason to renew the summons. I emphasise the fact that,

as already stated, the “other good reason” referred to in the rule is one which justifies the

court in exercising its discretion to renew the summons, and not the failure to serve the

proceedings within the permitted period, as the trial judge stated.

41. Having said that, there is no doubt that the appellant’s solicitor could, and perhaps

should,have, acted differently. It would have been preferable in my view for him to have,

prior to the expiration of the 12 month period for service, made an application to the

Master for an order renewing the summons for a period of six months as provided,

explaining on such application that the proceedings themselves were issued on a

precautionary basis to prevent the statute running against the appellant, and so that the

necessary medical reports could be obtained prior to the proceedings being served as

mandated by the case law in relation to professional negligence proceedings, such as

Cooke v. Cronin & ors [1999] IESC 54. It would be prudent also to have at least put the

defendants on notice of a potential claim being made, notwithstanding any consequence

such notification may have for the professional defendants themselves.

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42. Prior to serving the proceedings on the defendants on 4th May 2017 the appellant’s

solicitor ought to have realised that the time for service had expired and therefore that an

order of renewal was required. He ought also to have responded more clearly and

positively to the respondents’ solicitors’ perfectly reasonable enquiry as to whether an

order for renewal had been obtained. While I would fault him in these respects, I would

not however consider that in all the circumstances it should render bad an otherwise

“good reason” to order that the summons be renewed.

43. Having concluded that the explanation for the delay given by the appellant’s solicitor

constitutes a good reason to renew the summons, it is necessary in accordance with the

principles identified by Finlay Geoghegan J. in Chambers v. Kenefick to consider 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, and in considering that question, to consider

the balance of hardship for each of the parties.

44. In this regard, the hardship to the appellant in refusing an order for renewal is very clear

and obvious. Her claims against these respondents will be at an end, albeit that she may

continue to pursue her claims against the hospital. As for the respondents, there is no

similar hardship, save that if the summons is renewed they will not be freed of the burden

of defending the proceedings should they choose to do so. They have not sought to claim

a particular prejudice save the inability to plead the statute. In fact, their solicitors had

already set about addressing their defence of the claims before this renewal application

was brought, in so far as they had sought, in the usual way, further and better particulars

of the appellant’s claims, the replies to which would have enabled their solicitors to

deliver a defence to the claims. On the question of prejudice to the respondents, it must

be remarked that in contrast to many cases where a renewal of a summons is sought the

period of time which elapsed after the expiration of the summons and before the

application was brought is, relatively-speaking, short. No doubt the application ought to

have been brought in a more timely fashion but balancing the interests of the parties in a

fair manner, I am satisfied that the balance of justice tilts easily in favour of ordering

renewal of the summons in this case. I am satisfied that my decision is consistent with

what was stated by Clarke J. (as he then was) in the High Court in Moloney v. Lacey

Building and Civil Engineering Ltd [2010] 4 IR 417 at pp. 424-425 as relevant:

“19. On the basis of the judgment of Feeney J. in Bingham v. Crowley [2008] IEHC 453,

(unreported, High Court, Feeney J. 17th December, 2008), it seems clear that the

absence of an appropriate expert report may provide, in certain circumstances, a

“good reason” for not serving a plenary summons pending the receipt of such a

report. However, it is clear that the absence of an appropriate expert report will

only justify a failure to serve a plenary summons where the existence of the report

concerned would be reasonably necessary in order to justify the commencement of

proceedings in the first place. There is ample authority for the proposition that it is

appropriate for a party considering suing for professional negligence to have

obtained a sufficient expert report in advance of commencing such proceedings

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such as would warrant forming the view that there was a prima facie case of

negligence against the person concerned … .

20. In summary, therefore, insofar as the absence of an appropriate expert report may

be put forward as a good reason for not serving a plenary summons, it seems to

me to follow that the expert report concerned must be reasonably necessary in

order to justify the decision to responsibly maintain proceedings in the first place,

rather than be necessary in order to take further steps in the proceedings (such as

the drafting of a statement of claim or bringing the case to trial) and it must also be

established that any delay occasioned by the absence of the expert report

concerned was reasonable in all the circumstances, such that appropriate

expedition was used by the party placing reliance on the absence of the expert

report concerned in attempting to procure same.”

45. It seems clear that the availability of the awaited report was in fact considered reasonably

necessary in order to justify the decision to maintain the proceedings in the first place

notwithstanding the fact that the appellant’s solicitor served the summons prior to the

receipt of the report. On the question of the balance of justice, the respondents relied

heavily on the judgment of Feeney J. in Bingham v. Crowley [2008] IEHC 453 where, in

relation to delay, Feeney J. stated: “The requirement to serve a summons without delay is

all the greater not only where there has been no warning letter but also where the period

provided for in the Statute of Limitations has already expired”. However, that was a case

where the good reason for renewing the summons was put forward as being that the

claim would otherwise be statute-barred. This is not such a case. While it is the case that

if the summons is not renewed the appellant’s case against the respondents will be

statute barred, the “good reason” advanced is not that. It is that the solicitor considered

that a further medical report, as advised to him, should be obtained prior to service

taking place. I would distinguish Bingham v. Crowley on that basis. I do not disagree at

all with what is stated in that judgment about the need for expedition in relation to

service of proceedings and in relation to bringing the application to renew. Indeed, I

emphasised that need in what I stated at para. 15 of my judgment in Moynihan.

46. For the above reasons, I would allow the appeal against the order refusing to renew the

personal injury summons, and order that it be renewed for the period of six months

provided for under the rule.

47. I have addressed the appeal on its merits and on the basis of the grounds argued, but I

wish to add some further remarks since for the reasons I will come to, it is my view that

no application to renew the personal injury summons in this case needed to be brought in

the first place once the respondents had entered what can only be regarded as an

unconditional appearance. The fact that the respondents’ solicitor intended to reserve

their position so as to contest the validity of service by intimating in correspondence that

they were entering an appearance “under protest” does not mean that the appearance in

fact entered was in any way conditioned. It was not. The only appearance that could have

been entered, and in fact was entered, was an unconditional appearance, and one

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accordingly that cured any defect in service occasioned by the failure to have obtained an

order renewing the summons under O. 8, r.1 RSC.

48. The argument made by the respondents that once the summons was not served within

the period of twelve months provided for in the rules the summons became a nullity, is

not correct. Neither was the trial judge correct when he stated that once the respondents’

solicitor brought it to the appellant’s solicitor’s attention that there was an objection to

service there was an obligation on the plaintiff to regularise the situation “because he or

she can hardly be entitled to progress the proceedings on the basis of the expired

summons”. It has long been held that where a summons has not been served within the

twelve-month period laid down for service, it does not become a nullity. It has not expired

in that sense. It is simply that the summons is not in force for service until a renewal

order is obtained as provided for in the rules. The rules specifically provide for renewal

even outside the twelve-month period, as is clear from Order 8. R. 1 RSC itself. In this

regard I again refer to the passage from the judgment of Walsh J. in Baulk which I have

set forth at para. 32 above.

49. From what I have stated a number of matters are in my view clear. Firstly, the personal

injury summons did not expire in the sense of becoming a nullity upon the expiration of

the twelve-month period for service. Secondly, if the respondents, once served, wished to

raise an objection to the validity to service the way to do that was to bring an application

under O. 12, r. 26 RSC prior to entering an appearance. Thirdly, the entry of their

appearance to the summons had the effect of curing any defect that may otherwise have

been found in the validity of the service effected outside the twelve-month period absent

a renewal order. Fourthly therefore, on the facts of this case no application to renew the

summons was necessary. The controversy that arose has simply served to add

unnecessarily to the costs of the proceedings and the needless exhaustion of a good deal

of court time and resources.

Result: Allow appeal