Holistic “Special Circumstances” Relief from Unless-Order Strike-Outs: Mandatory Service Under Order 27 r 18(4) and Proportionality

Case: Coleman, Gilmartin v Depuy International Ltd and Ors (Approved) [2026] IEHC 532
Court: High Court of Ireland (Nolan J.)
Date: 29 July 2026

1. Introduction

This judgment determined two related motions arising from personal injuries claims concerning the DePuy ASR hip product. In each action, the plaintiff’s proceedings had been struck out under a self-executing “unless” order made by the Deputy Master, following non-compliance with discovery directions for medical records. Each plaintiff sought to set aside the dismissal (or, alternatively, extend time to comply), relying on Order 27, rule 15 of the Rules of the Superior Courts (“RSC”) and/or the Court’s inherent jurisdiction.

The key issue was how the “special circumstances” threshold applies when relief is sought from the consequences of an unless order—particularly where (i) there was non-service of the perfected dismissal order as required by Order 27 rule 18(4), (ii) compliance was late but close in time, and (iii) one plaintiff asserted significant health-related barriers to giving discovery instructions.

2. Summary of the Judgment

2.1 Coleman motion

The Court set aside the strike-out. Although the plaintiff’s legal team were present when the unless order was made, the Court treated as significant that (a) discovery was delivered only about 3–4 weeks after the deadline, (b) the defendants had not served a copy of the perfected dismissal order within 28 days as required by Order 27 rule 18(4), and (c) it would be disproportionate to allow the proceedings to remain struck out absent prejudice to the defendants.

2.2 Gilmartin motion

The Court found special circumstances existed, primarily grounded in the plaintiff’s asserted mental health and cognitive difficulties affecting his ability to provide discovery instructions, together with the procedural context (an affidavit of discovery had already been delivered and further discovery was sought) and the high-stakes consequence (loss of the cause of action).

However, the Court did not simply set aside the Deputy Master’s order. It extended the time for compliance by three weeks from perfection of the High Court order, leaving the unless order in place: failure to comply within the extension would cause the case to stand struck out again.

3. Analysis

3.1 The governing rules and the Court’s framing

The plaintiffs relied on Order 27, rule 15(2) (setting aside “judgment by default”), but the Court highlighted that Order 27, rule 15(1) is the provision addressing the setting aside of an “order dismissing the plaintiff’s action for want of prosecution”. Both rules require “special circumstances (to be recited in the order)” that “explain and justify the failure”.

Critically, the Court treated the Supreme Court’s interpretation of “special circumstances” as transferable across RSC contexts where that phrase appears.

3.2 Precedents cited and their influence

(a) The Supreme Court’s recalibration: Power v CJSC Indigo Tajikistan, Telia Company AB and AGA Khan Fund For Economic Development SA [2025] IESC 55

Nolan J. treated Power as the “most definitive” authority. Although Power concerned renewal of a summons under Order 8, Woulfe J.’s approach to “special circumstances” was held to govern the concept generally.

Nolan J. expressly adopted this “in the round” assessment in both motions, using it to justify relief in Coleman notwithstanding scepticism about some proffered reasons, and to find special circumstances in Gilmartin without treating any one factor as necessarily decisive.

(b) The Court of Appeal authorities referenced through Power

• Murphy v HSE [2021] IECA 3 (Haughton J.)
• Nolan v. Board of Management of St. Mary's Diocesan School [2022] IECA 10 (Noonan J.)
• Kearns v. Evenson [2023] IECA 297 (Butler J.)

These cases informed Woulfe J.’s synthesis in Power, particularly the rejection of an overly formal “gateway” and the caution about solicitor inattention. Nolan J. used that synthesis as the framework for Order 27 relief.

(c) “Special circumstances” as a higher threshold than “good reason”

• Bowe v Sherriff & others [2025] IECA 14 (Whelan J.)
• De Souza v Liffey Meats (Cavan) Unlimited Company & Ors [2023] IEHC 402 (Ferriter J.)

Nolan J. adopted the proposition (drawn from Bowe citing De Souza) that “special circumstances” is a higher bar than “good reason” and implies something “beyond the ordinary or the usual” (while not necessarily “extraordinary”). This mattered in Coleman, where ordinary discovery difficulties were rejected as insufficient standing alone, and in Gilmartin, where the Court treated the plaintiff’s asserted conditions as taking the case beyond the ordinary.

(d) Interests of justice: deciding rights, not disciplining parties

• Cropper v Smith (1884) 2 Ch. D. 700 (Bowen L.J.)
• “Desmond” (as discussed via Bowe)
• McGuinn v Commissioner of An Garda Siochana & others [2011] IESC 33
• Murphy v J. Donoghue [1996] 1 IR 123

Nolan J. endorsed the procedural philosophy that the object of courts is to decide parties’ rights and, where possible, correct non-fraudulent procedural mistakes without injustice to the other party. This underpinned proportionality in Coleman (a short delay with no prejudice) and the balancing exercise in Gilmartin (the plaintiff’s loss of the cause of action outweighed asserted reputational concerns).

(e) Inherent jurisdiction and its relationship with the RSC

• Everyday Finance and others v White and others [2023] IEHC 624 (Oisín Quinn J.)
• Bank of Scotland plc v McDermott [2017] IEHC 77 (Barrett J.)
• AIB v Forde (as referenced in the judgment)
• Emo Oil -v- Willow Rock [2016] IECA 200

Nolan J. accepted Quinn J.’s extracted principles (particularly that courts lean toward merits-based determination, and that inherent jurisdiction can remedy accident/mistake/inadvertence where just and equitable). But Nolan J. declined to go further and conduct an interlocutory assessment of the merits/strength of the underlying product liability claims, treating that aspect of Everyday Finance as fact-specific and not a general invitation to mini-trials on interlocutory relief.

(f) Discovery strike-out discretion and non-culpable omission

• Mercantile Credit Corporation of Ireland v Heelan [1998] 1 IR 81 (Hamilton C.J., cited in Bowe)

This authority was deployed particularly in Gilmartin. The Court treated it as directly relevant that strike-out for discovery default is discretionary and should not be used where the omission is not culpable (for example due to “loss of memory or illness”). Nolan J. used this to support treating the plaintiff’s asserted cognitive/mental health difficulties as capable of constituting special circumstances in context.

3.3 Legal reasoning: what the judgment adds

(a) A unified, “in the round” method for Order 27 “special circumstances”

The judgment operationalises Power outside Order 8. Nolan J. listed propositions synthesising the authorities, including: (i) the onus on the plaintiff, (ii) no helpfulness in a “gateway” label, (iii) fact-specific inquiry, (iv) “special” is higher than “good reason”, and (v) a balancing of prejudice/hardship as part of a single overall interests-of-justice assessment.

(b) Mandatory service under Order 27 rule 18(4) can matter even for self-executing unless orders

Coleman is the clearest illustration: the Court treated the defendants’ failure to serve the perfected dismissal order within 28 days (as required by Order 27 rule 18(4)) as a weighty factor in the special-circumstances analysis, notwithstanding that the plaintiff’s legal team were present when the unless order was made. Nolan J. emphasised the mandatory language (“shall serve”), rejecting the notion that service becomes optional because an order is self-executing.

The practical logic was straightforward: timely service would likely have triggered the plaintiff solicitors’ internal “critical dates” systems and precipitated immediate remedial action. When combined with the very short delay in compliance and lack of prejudice, maintaining a strike-out was held “entirely disproportionate”.

(c) Causation is relevant, but not necessarily determinative, within the holistic assessment

In Gilmartin, the Court found non-service of the unless order was not causative of the default (a letter referencing the order issued within days, and there was no explanation why the date was not diarised). Yet the Court still found special circumstances on other grounds and granted limited relief. This demonstrates a nuanced approach: procedural irregularities may support relief (Coleman), but absence of causation can reduce their weight (Gilmartin) without foreclosing relief entirely if the overall justice balance favours it.

(d) Calibrated relief: setting aside versus extending time while preserving the sanction

The remedy differed between the cases. In Coleman, the strike-out was set aside outright. In Gilmartin, the Court extended time but left the unless order in place. This indicates that even where special circumstances exist, the Court may tailor relief to ensure compliance and protect defendants’ procedural entitlements—particularly where delay/administration issues appear more entrenched.

3.4 Impact and significance

• Procedural discipline with proportionality: The decision reinforces that strike-out is not a punitive default outcome where late compliance is minimal and prejudice is absent—especially in personal injuries/product claims where the consequence is loss of the claim.
• Service of dismissal orders is not a technicality: Parties seeking to rely on a self-executing dismissal should expect the High Court to scrutinise compliance with Order 27 rule 18(4). Non-service can become a recited “special circumstance”.
• Health-related instruction difficulties can qualify: Gilmartin underscores that illness/cognitive impairment affecting the ability to progress discovery may amount to special circumstances when viewed in the round, aligning discovery-default relief with the discretionary, non-punitive approach reflected in Mercantile Credit Corporation of Ireland v Heelan.
• No merits mini-trials: The Court’s refusal to assess case strength at the interlocutory stage signals that “interests of justice” will generally be addressed through prejudice, hardship, proportionality, and procedural context rather than predictive evaluations of ultimate liability.
• Broader procedural coherence: By applying Power across different RSC provisions using “special circumstances”, the judgment promotes consistency in Irish procedural jurisprudence.

4. Complex concepts simplified

• Unless order (self-executing): A court order requiring a step (here, discovery) by a deadline, stating that if the party fails, a specified sanction automatically follows (here, the proceedings “stand dismissed/struck out”) without a further application.
• Strike-out/dismissal for want of prosecution: Ending an action because it has not been advanced in accordance with procedural obligations, including court-ordered steps like discovery.
• Discovery and affidavit of discovery: The process of identifying, listing, and producing relevant documents. An affidavit of discovery is a sworn statement confirming what documents exist, are produced, or are no longer available.
• “Special circumstances”: Not merely a routine explanation for delay; it requires something beyond the ordinary. Following Power, the court assesses special circumstances together with interests of justice in one overall evaluation.
• Order 27 rule 18(4) service requirement: A rule requiring a defendant to serve a copy of any order dismissing an action for want of prosecution within 28 days of the perfected order—important where a defendant later relies on the dismissal.
• Perfection of an order: The formal finalisation/settling of the court order in proper form, after which time-limits (like service obligations) commonly run.

5. Conclusion

[2026] IEHC 532 confirms that applications to undo the consequences of self-executing unless orders turn on a holistic, interests-of-justice assessment of “special circumstances” consistent with Power v CJSC Indigo Tajikistan, Telia Company AB and AGA Khan Fund For Economic Development SA [2025] IESC 55. The judgment’s practical core is twofold: (i) strict procedural outcomes (strike-out) may be disproportionate where compliance is only shortly late and there is no prejudice, particularly where mandatory service requirements under Order 27 rule 18(4) were not met; and (ii) where the default is tied to credible illness-related instruction difficulties, the court may find special circumstances but still impose a tightly controlled extension, preserving the unless order to secure compliance.