Pisarski v Kepak Cork Unlimited Company: Deliberate Non-Service by a Plaintiff’s Solicitor Is Not a “Special Circumstance” Justifying Renewal of a Personal Injury Summons

1. Introduction

In Pisarski v Kepak Cork Unlimited Company ([2026] IEHC 94), Mr Justice Barr (High Court) determined an appeal from the Circuit Court concerning the renewal of a personal injury summons that had issued in time but had not been served for almost four years.

The plaintiff, Artur Pisarski, alleged he suffered injury in a workplace accident on 25 October 2018. A personal injury summons issued on 4 August 2021 but was never served by the plaintiff’s former solicitor, who later stated he had made a deliberate decision not to serve because counsel considered liability weak and the likely award modest, exposing the plaintiff to adverse costs.

The plaintiff’s new solicitor obtained an ex parte Circuit Court order on 15 July 2025 renewing the summons for three months, and served it the next day. The defendant, Kepak Cork Unlimited Company, moved to set aside the renewal; the Circuit Court refused, and the defendant appealed.

The central issue was narrow but important: whether the plaintiff’s belief that his case was being progressed, combined with his former solicitor’s deliberate non-service, could amount to “special circumstances” justifying renewal three years and eleven months after issue.

2. Summary of the Judgment

The High Court allowed the defendant’s appeal and ordered that the renewal of the summons (15 July 2025) be set aside.

The Court held that:

  • The former solicitor’s deliberate decision not to serve the summons—whether taken with instructions or not—did not constitute “special circumstances” justifying renewal.
  • Any confusion between plaintiff and solicitor, or the plaintiff’s misplaced belief that the action was progressing, could not justify renewal in circumstances where the summons was not served solely because of the solicitor’s deliberate inaction.
  • Applying agency principles (as articulated in Maguire v PSW Sales and Logistics Limited [2026] IEHC 81), the plaintiff must bear the consequences of his solicitor’s omissions in dealing with the opposing party; it would be unjust to transfer that consequence to a blameless defendant.
  • The defendant would suffer prejudice if required in 2025 to defend an accident from 2018, having heard nothing since the claim left the Injuries Board process around 2020.

3. Analysis

3.1 Precedents Cited

(a) Power v CJSC Indigo Tajikistan & Ors. [2025] IESC 55

This decision supplies the governing framework for renewal applications. The High Court treated Power as establishing that renewal is not determined by a rigid “two-step” or “gateway” test (special circumstances first, then a separate interests-of-justice inquiry). Instead, the court must conduct one overall assessment: whether special circumstances justify renewal having regard to all circumstances, including interests of justice, prejudice, and the balance of hardship.

Mr Justice Barr applied Power by asking the single composite question: even taking the plaintiff’s asserted circumstances at their height (belief the solicitor was progressing the case; solicitor chose not to serve), do they justify renewal when weighed against delay, responsibility, and prejudice to the defendant?

(b) Maguire v PSW Sales and Logistics Limited [2026] IEHC 81

Maguire was central to the present outcome. It articulates an agency-based approach: the solicitor acts as agent; the client as principal. The principal cannot accept beneficial procedural acts by the agent but disclaim detrimental omissions—an “approbate and reprobate” point.

Mr Justice Barr drew directly from Maguire to reject the plaintiff’s attempt to treat the solicitor’s deliberate non-service (or any breach of retainer/confusion) as a “special circumstance” for renewal. Where the defendant is blameless, the risk of solicitor default is not shifted to the defendant; the plaintiff’s remedy, if any, lies elsewhere (typically a professional negligence claim), rather than through procedural indulgence that revives stale litigation against an uninvolved party.

(c) Galvin v Sharif [2025] IEHC 680

The Court used Galvin to situate “deliberate inaction” within renewal jurisprudence. In Galvin, a sequence of solicitors included one who decided not to seek renewal due to perceived poor prospects; Ferriter J treated that period as culpable delay weighing against renewal.

Mr Justice Barr noted that he had previously demurred (in Maguire) from part of Ferriter J’s reasoning regarding the consequences of a first solicitor’s misconduct, but he agreed with Ferriter J’s treatment of a later solicitor’s deliberate decision not to take the necessary procedural step: such deliberate inaction counts against renewal. That reinforced the conclusion that strategic or protective non-service (even if well-intentioned) does not itself amount to “special circumstances.”

(d) “Kearns” (as referenced within Power)

Although only referenced indirectly through the quoted passage from Power, “Kearns” is cited for the proposition (via Butler J.) that renewal is not a difficult two-stage process, but a single inquiry under the relevant rule. The High Court’s method in Pisarski is consistent with that approach.

3.2 Legal Reasoning

The reasoning proceeds in a structured way:

  1. Characterisation of the cause of non-service: This was not inadvertence, diary error, or difficulty locating a defendant. The summons was not served because the plaintiff’s former solicitor chose not to serve it, stating he sought to protect the plaintiff from costs in a weak case.
  2. Instructions are a fork in the road—but neither fork helps the renewal:
    • If the solicitor had express or implied instructions not to serve, the plaintiff cannot later resile and treat the non-service as a justification for renewal.
    • If the solicitor acted without instructions (or contrary to them), that dispute belongs in “another forum”; it does not convert into “special circumstances” as against a blameless defendant.
  3. Agency and fairness as between plaintiff and defendant: The Court emphasised that as against the defendant, the plaintiff is generally fixed with the consequences of his solicitor’s procedural choices and omissions. To treat solicitor-client confusion or breach of retainer as justifying renewal would, in substance, penalise the defendant for matters outside its control.
  4. Prejudice and the interests of justice (within the Power single-test): The defendant had heard nothing after the Injuries Board authorisation period (the judgment references that the defendant declined assessment around 2020 and the claim was released in 2020/2021). Renewing in July 2025 would require defending an accident from October 2018—“over seven years ago” by the time of the judgment—creating real forensic disadvantage. The Court expressly found prejudice to the defendant and held it would be “unreasonable and unjust” to renew.

3.3 Impact

The decision has three notable practical and doctrinal consequences:

  • Deliberate non-service is treated more harshly than inadvertence: Renewal applications often involve accidental delay. Pisarski makes clear that where non-service is the product of a deliberate solicitor decision (even if framed as client-protective), that is unlikely to amount to “special circumstances.”
  • Agency principles remain a strong barrier to “solicitor default” as special circumstances: Following Maguire, the Court reinforces that disputes about a solicitor’s retainer, judgment, or compliance with instructions will rarely justify procedural relief against the opposing party; the client’s usual recourse is against the solicitor.
  • Power’s unified renewal test is operationalised with emphasis on prejudice: Although Power removes a formal two-step structure, Pisarski illustrates that “special circumstances” are still essential, and that prejudice arising from long dormancy will carry significant weight within the single overall assessment.

4. Complex Concepts Simplified

Renewal of a summons
A summons has a limited lifespan for service. If it expires, the plaintiff must ask the court to “renew” it. Renewal is exceptional because it revives proceedings that have not been properly initiated against the defendant by service.
“Special circumstances”
Not every explanation for delay qualifies. The circumstances must be sufficiently out of the ordinary to justify extending time, assessed in the round with fairness and prejudice.
Ex parte application
An application made without notifying the opposing party. Because the defendant is not present to object, ex parte orders are vulnerable to being set aside if the legal test is not met or if justice requires reconsideration on notice.
Agency (solicitor as agent; client as principal)
In litigation, a solicitor’s procedural acts and omissions are generally treated as the client’s acts and omissions when considering fairness to the opposing party. The law typically does not allow a client to disown a solicitor’s default to the detriment of a blameless defendant.
Prejudice
The practical disadvantage to a party caused by delay—e.g., faded memories, unavailable witnesses, lost documents, or the unfairness of having to defend very old events after years of silence.

5. Conclusion

Pisarski v Kepak Cork Unlimited Company [2026] IEHC 94 strengthens the line of authority that renewal is not a mechanism to cure the consequences of a solicitor’s deliberate procedural choice not to serve proceedings. Applying Power v CJSC Indigo Tajikistan & Ors. [2025] IESC 55 as a single overall assessment and relying on the agency-based approach in Maguire v PSW Sales and Logistics Limited [2026] IEHC 81, the Court held that solicitor-client confusion (or even a breach of retainer) does not, in itself, constitute “special circumstances” as against an uninvolved defendant—particularly where long delay creates real prejudice.

The case signals a clear policy choice: where proceedings are not served because a plaintiff’s solicitor decides not to serve them, the legal system will generally allocate the consequences of that choice to the plaintiff (with any remedy lying against the solicitor), rather than reviving stale litigation and imposing the resulting hardship on a blameless defendant.