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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Murphy -v- Mulcahy & anor [2015] IEHC 377 (15 June 2015)
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Cite as: [2015] IEHC 377
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Judgment
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Neutral Citation [2015] IEHC 377 Record No. 2014/1286P THE HIGH COURT BETWEEN ANN MURPHY PLAINTIFF AND
KEVIN MULCAHY AND THE HEALTH SERVICE EXECUTIVE DEFENDANTS Judgment of Mr. Justice Max Barrett delivered on 15th June, 2015. Part I Introduction and Chronology of Facts Arising 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 7th April, 2014, pursuant to O.8, r.1 of the Rules, renewing a Plenary Summons of 7th February, 2013, for a further six months. 2. Chronology of events. The court identifies below the key dates and events relevant to the within application:
- 3rd 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 3rd but does not succeed in serving the summons personally. - 4th February, 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally. - 5th February, 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally. - 6th 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. - 7th 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 pre-paid post on Mr Mulcahy at a stated address, with any other documents to be served personally. - 7th July, 2014. Mr Mulcahy is duly served. - 13th 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. - 12th 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 7th February, 2013, was on 3rd 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). - 16th 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 20th. - 8th June, 2015. Set-aside application heard by this Court. Part II Order 8 of the Rules of the Superior Courts (1986), as amended 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.)
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 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 IR 417. Passing reference was also made at the hearing to O’Keeffe v. G & T Crampton Ltd. [2009] IEHC 366. A. Chambers v. Kenefick. 6. In Chambers, the plaintiff claimed that he had been injured in October, 1998, during a surgical operation. A plenary summons issued on 25th June, 2002. A copy of the summons was sent on 2nd September, 2002 to the defendant’s insurers. The defendant’s solicitors wrote on 12th 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 15th 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 5th March, 2004, the original summons and order were served on the defendant’s solicitors. On 8th April, 2004, the defendant’s solicitors entered a conditional appearance. On 6th January, 2005, the statement of claim was delivered by the plaintiff’s solicitor. On 27th 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. 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, 14th December 1995), at p.3, that:-
12. Finlay Geoghegan J. added one final, obiter comment, at para.13, namely that [7] she did “not necessarily accept” that there was no time limit for the bringing of an application, and that “The application has to be brought before entering an appearance, and when one looks at the overall scheme it may well be that there are limits to the period in which a defendant should be entitled to bring and pursue an application under O.8, r.2.” This is an aspect of matters that also received consideration by Feeney J. in Bingham. B. Bingham v. Crowley and Others 13. This was a case in which the plaintiffs, parents of a deceased person, sought to renew a summons in respect of a medical negligence claim in which there had been significant delays. The second-named defendant sought to set aside one or more renewal orders of the High Court. In the course of his judgment, Feeney J. touched comprehensively upon a number of points of interest concerning an O.8 application. These are considered hereafter. 14. Second and further renewals. The within application is concerned with a first renewal and so the issue of when second and further renewals may be ordered does not arise in the within proceedings. However, the court notes Feeney J.’s observation, at para.19 of his judgment, that [8] a renewed summons is incapable of further renewal unless an application to renew is made within the currency of the renewed summons. 15. Refinement of the Chambers test. It will be recalled that O.8, r.1 allows renewal of a summons, inter alia, “for other good reason”. At para.23 of his judgment, Feeney J. observes that: -
17. Particular grounds that do not offer a good reason to renew a summons. [10] The plaintiffs in Bingham offered a number of purported ‘other good reasons’ to justify renewal, including the fact that a criminal complaint had been made by the first-named plaintiff and his wife, the fact of an ongoing inquest, the need to source expert evidence for use at any coroner’s hearing, the need to obtain medical records and reports, and the subsequent requirement to receive still further reports, a necessity to change solicitors with a resulting delay and heightened cost, and a delay in drafting a statement of claim after the issue of the summons. Though each case falls to be judged on its own circumstances, the fact that the foregoing bases were rejected as grounds for renewal is perhaps of note. 18. Is there good reason for renewal of the summons? At para.35 of his judgment, Feeney J. observes that: -
20. Statute of Limitations. As regards a plaintiff claiming that hardship or prejudice would arise under the Statute of Limitations by a court’s refusing a renewal, Feeney J. identified the court’s role in this regard as follows, at para.37 of his judgment: -
23. The European Convention on Human Rights. Feeney J. notes the potential relevance of the European Convention on Human Rights to a determination of the overall interests of justice as between the parties, observing as follows at para.38 of his judgment:-
26. Access to affidavit upon which application to renew moved. Specifically, in the context of delay, Feeney J. observes, at para.44, that:-
C. Moloney v. Lacey Building and Civil Engineering Limited
27. In Moloney, the plaintiffs instituted proceedings by plenary summons issued on 9th January, 2004, against the defendants. The summons expired without being served on the defendants. By order dated 11th May, 2009, the High Court (Peart J.) renewed the summons following an ex parte application by the plaintiffs. The second and third defendants sought successfully to set aside the order renewing the summons. In setting aside the renewal, Clarke J. considered the decisions in Chambers and Bingham and certain other judgments, several of which are referred to above. This Court confines itself to such observations of Clarke J. as might be considered supplementary to or departing from those referred to above, though it would be fair to say that Clarke J. found much to agree with in both Chambers and Bingham. 28. Expert reports. Clarke J. observes, at para.19 of his judgment, that it is clear from Bingham 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. Clarke J. adds that the absence of an appropriate expert report would of course 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 the proceedings in the first place. He amplifies a little further on the issues arising in this regard, concluding as follows, at para.20: -
33. Complaints against professional advisors. In the course of applying the principles he had identified, Clarke J. also intimates, at para.36 of his judgment, by analogy with the case-law on dismissal for want of prosecution, that [27] the fact that a plaintiff may have a legitimate complaint against his advisors and be able to make claim in that regard is a factor which (in a ‘want of prosecution’ case) leans against absolving a party for failures on the part of those advisors. Although he does not say as much, Clarke J. clearly intimates that it would also be a factor that would count against a renewal of a summons. Part IV Other sources 34. One further, final source cited before the court was Delany, H. and D. McGrath’s Civil Procedure in the Superior Courts (3rd ed., 2012), para.2-43, at which it is stated as follows, under the heading “Reasonable Efforts to Effect Service”:-
Part V Summary of Key Principles Affecting Set-Aside Applications under O.8(2) 36. The consideration of case-law and commentary above suggests that the below-mentioned key principles inform and affect the determination of applications made under O.8(2). (The square-bracketed numerals refer back to the square-bracketed numbers contained in the above text). Not all principles may be of application in any one case.
(i). The moving-party must satisfy the court that there are facts or circumstances which, if known to the judge who ordered the ex parte renewal, would have had the result that such renewal would not have been ordered. [1], [3]. (ii). The moving-party may also demonstrate that even on the facts before the judge at the ex parte stage, the renewal order ought not to have been made. [4]. 2. Three-limb test to be applied by court. (ii). The first and second steps identified in the preceding principle overlap. So if the court is satisfied there is good reason, it must consider whether it is in the interests of justice between the parties for there to be a renewal order. [9]. 3. Limitation periods (ii). A renewal of a summons outside the limitation period so as to further extend the time (by reference to the limitation period) within which service can be effected, amounts at least to a stretching of the principles behind limitation periods. This consideration should inform decisions as to (a) what is a ‘good reason’ for renewal and (b) where the balance of justice lies. [22]. (iii). The history of events to the time when the limitation period might have applied, in particular, the extent to which the potential defendant knew of the claim and that proceedings had been brought, can be ‘good reasons’. [24]. (iv). A failure to renew should not be treated as a penalty for procedural mishap. [25]. 4. Interests of Justice (as between the parties) (ii). Prejudice is a factor to take into account in considering the interests of justice; its presence or absence is not conclusive as to same. [15]. (iii). The obligation of the courts to ensure actions are determined within a reasonable time is a relevant matter when considering the overall interests of justice. [16]. (iv). In balancing the interests of justice, the court should have regard to any real risk of prejudice to justice presenting in a renewal application. [26]. 5. Time Limit and Delay (ii). A defendant cannot properly/adequately consider whether or not to bring an application to set aside unless that defendant has had sight of the grounding affidavit. [18]. (iii). The general ‘tightening up’ as regards delay that is discernible in ‘dismissal for want of prosecution’ cases applies also to renewal cases. [21]. 6. Miscellaneous (ii) A renewed summons is incapable of further renewal unless an application to renew is made within the currency of the renewed summons. [8]. (iii). A concern of the plaintiffs not to serve proceedings on a professional defendant without having a sound basis for doing so is unlikely to be good basis for renewal. [12]. (iv). If absence of an appropriate expert report is put forward as a good reason for not serving a plenary summons, that expert report must be reasonably necessary to justify the decision to responsibly maintain proceedings; and any delay occasioned by the absence of same must have been reasonable in all the circumstances. [19. 19a, 19b]. (v). The fact that a plaintiff may have a legitimate complaint against his advisors and be able to make claim in that regard is a factor that would count against renewal. [27]. Part VI
Application of Principles to Facts Presenting 37. Burden on Moving-Party. The moving-party has not satisfied the court that there are any facts or circumstances presenting in this case which, if known to Hedigan J. when he ordered the renewal that is the subject of the within application, would have had the result that the renewal would not have been ordered. Nor do there appear to be facts that were before Hedigan J. at the ex parte stage which demonstrate the renewal order ought not to have been made. It seems to the court that the height of the moving-party’s case is that late in the initial one-year lifetime of the summons several efforts were made to serve the summons and were unsuccessful. There is nothing to suggest that the efforts of the summons-server in this regard were deficient, albeit that they were unsuccessful. And while those efforts came late in the initial one-year lifetime of the summons, they appear nonetheless to have been bona fide efforts at service during that initial one-year lifetime. It is perhaps worth recalling the applicable chronology in this regard to show just how assiduous the summons-server was in seeking to effect service:-
4th February, 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally. 5th February, 2014. Summons-server calls to address of Mr Mulcahy but does not succeed in serving the summons personally. 6th 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. 39. Counsel for Mr Mulcahy appeared to intimate at the hearing that there is an unspoken requirement in O.8 that making reasonable efforts to serve during the initial 12-month lifetime of a summons must embrace making those efforts early enough so that one has time to seek an order for substituted service. In truth, however, there is no mention in O.8, nor does the court consider it appropriate or necessary to read into O.8, that within the one-year lifespan of an original summons there is an implicit shorter lifespan conditioned upon (and in effect created by) the reference to making reasonable efforts to effect service during that one-year period. 40. Three-limb test to be applied by court. As to whether there was good reason to renew the summons, it appears to the court that although Ms Murphy may have prosecuted her claim slowly thus far, the serious nature of the allegations that she makes - and the court emphasises that thus far they are but allegations - means that there would be considerable injustice to her if her summons had not been renewed. With regard to whether it was in the interests of justice between the parties to make an order for the renewal of the summons, the court likewise considers that the potential injustice that arose for Ms Murphy if her claims are not litigated outweigh the potential injustice to Mr Mulcahy at having to resist claims that could, perhaps, have been pursued more expeditiously, but which have been pursued nonetheless. 41. Limitation periods. Notably, this is a case in which, if the plenary summons had not been renewed, Ms Murphy would have been time-barred from litigating allegations of the utmost seriousness. Of course, limitation periods must have meaning but so too, it seems to the court, must O.8. Moreover, while Mr Mulcahy, thanks to the renewal of the summons, is now subject to the undoubtedly unpleasant and unwelcome stresses and strains of litigation, a factor which of itself requires to be weighed in the scales of justice, neither he nor his counsel have been able to point to any concrete prejudice which he would suffer as a result of the renewal of the original summons. This, it seems to the court, is further good reason for the renewal that was ordered. The court is mindful of the onus upon it to ensure that actions are determined within a reasonable timeframe but it does not appear to the court that when reasonable efforts are made to effect service during the initial one-year lifetime of a summons concerning serious allegations, and when service is effected during the first renewal thereafter, the timeframe then (or now) arising is unreasonable. 42. Delay. As mentioned above, the court does not consider that leaving matters until late in the initial one-year lifetime of a summons to seek service has the effect that a plaintiff is to be treated as not having acted reasonably or having been guilty of delay. A plaintiff has a year within which to make those reasonable efforts and there is no requirement in O.8 that those reasonable efforts must be made at the start of, in the middle of, at the end of, or throughout that one-year lifetime. As mentioned above, the court does not consider that the effective requirement to make reasonable efforts has as a consequence that the one-year period for making service is in practice foreshortened by an implicit requirement to make those reasonable efforts at a point sufficiently early in the one-year lifetime of the summons so that one can come to court and seek an order for substituted service if same seems preferable. As for any limitation period affecting the cause of action, that, to the court’s mind, becomes and is of relevance at the point of deciding whether a renewal is merited. For the reasons mentioned above, the court does not consider that the limitation dimension to this case is or was a reason for not granting renewal, not least because neither Mr Mulcahy nor his counsel has been able to point to any concrete prejudice which Mr Mulcahy would suffer as a result of the renewal of the original summons. Part VII Conclusion 43. For the reasons stated above, the court declines to set aside the order made, ex parte, by the court (Hedigan J.) on 7th April, 2014, pursuant to O.8, r. 1 of the Rules of the Superior Courts (1986), as amended, renewing the above-mentioned plenary summons of 7th February, 2013, for a further six months.
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