"Special Circumstances" and Service Out of the Jurisdiction: The Supreme Court Re‑defines Order 8 and Order 11A in Power v Telia Company AB & ors [2025] IESC 55

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1. Introduction

The Supreme Court’s decision in Power v CJSC Indigo Tajikistan, Telia Company AB and Aga Khan Fund for Economic Development SA ([2025] IESC 55) is now the leading Irish authority on:

• the meaning and operation of “special circumstances” under Order 8, rule 1(4) of the Rules of the Superior Courts (“RSC”), and
• the proper interpretation of Order 11A, rule 4(1) RSC governing service out of the jurisdiction in “mixed-defendant” proceedings (some EU/Lugano defendants, some outside).

The case sits at the intersection of three important strands of civil procedure:

1. Strict time limits for service and renewal of originating summonses;
2. The increasingly strict post‑2019 regime for renewal under Order 8;
3. The complex interaction between EU jurisdiction and service instruments (Brussels I Recast, the Service Regulation) and international treaties (the Lugano Convention, the Hague Service Convention) with domestic rules in Orders 11, 11A, 11D and 11E.

It arises from proceedings by Michael Power, former CFO of a mobile telecom operator in Tajikistan, claiming:

• personal injuries, and
• damages for penalisation contrary to the Protected Disclosures Act 2014.

The principal defendants for present purposes were:

• Second defendant: Telia Company AB (Swedish telecoms company, majority shareholder).
• Third defendant: Aga Khan Fund for Economic Development SA (Swiss company, alleged co‑fiduciary with Telia).

The litigation became dominated by procedural issues: late service, irregular service, and whether the High Court could – and should – renew the summonses. The Court of Appeal treated the failure to seek leave to serve out under Order 11A, rule 4(1) as fatal. The Supreme Court rejected that approach and, in doing so, laid down significant guidance on both renewal and service out of the jurisdiction.

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2. Factual and Procedural Background

2.1 Employment and the disputes

• The plaintiff served as CFO of the first and/or second defendant between 20 January 2016 and 28 February 2017 in Tajikistan.
• Serious “unhappy differences” arose, which the plaintiff attributed to all three defendants, including alleged failures in governance and retaliation for protected disclosures.

2.2 The two sets of proceedings

1. Personal injuries proceedings (against all three defendants)
   • Personal injuries summons issued: 3 July 2019.
   • Valid for 12 months (to 2 July 2020) unless renewed.
2. Protected disclosure proceedings under s. 13 of the 2014 Act
   • Plenary summons (against Telia – second defendant) and concurrent summons (against first and third defendants): issued 7 February 2020.
   • Valid to February 2021 unless renewed.

2.3 Service attempts on the second defendant (Sweden)

• July 2019: personal injuries summons sent by registered post to Telia and to its Swedish lawyers, who refused to accept service.
• February–March 2020: plaintiff’s solicitors sought to serve both sets of proceedings on Telia via the EU Service Regulation (Regulation 1393/2007), using the Irish Centralised Office (CSCO) as transmitting agency under Order 11D RSC.
• The paperwork was defective (the form mis‑named the addressee as the third defendant while giving Telia’s Stockholm address), yet:
• CSCO sent a service request to Sweden re: personal injuries summons (February 2020),
• and another re: plenary summons (March 2020).
• Under Article 7 of the Service Regulation, the Swedish receiving agency was obliged to serve within one month or promptly explain any delay.
• In fact, Telia was served only on 1 September 2020:
  • after expiry of the personal injuries summons (2 July 2020);
  • before expiry of the plenary summons (February 2021).
• Telia entered conditional appearances in October 2020, objecting to late service of the personal injuries proceedings (but not yet invoking Order 11A, rule 4).

2.4 Service attempts on the third defendant (Switzerland)

• Early correspondence led the plaintiff reasonably to believe that the third defendant’s Irish solicitors might accept service, but on 6 December 2019 they made clear they had no authority to do so.
• By early 2020 the plaintiff’s solicitor understood that:
  • Service on Telia (Sweden) fell under the Service Regulation (Order 11D), and
  • Service on the Swiss third defendant required compliance with the Hague Service Convention (Order 11E).
• The February 2020 request sent to CSCO (under the Service Regulation) named the third defendant but used Telia’s Swedish address. The Supreme Court later interpreted this as a clerical error in the form, not a bona fide attempt to serve the Swiss defendant via the EU Regulation (which does not apply to Switzerland).
• No step was taken to serve the third defendant in Switzerland under the Hague Convention before the personal injuries summons expired in July 2020.
• In October 2020, the plaintiff’s solicitor wrote directly to the Swiss Central Authority, enclosing both sets of proceedings (personal injuries and plenary).
• This bypassed the correct procedure under Order 11E:
  • requests must first go to the Master of the High Court (Irish Central Authority),
  • who must certify compliance before onward transmission.
• Nonetheless, on 10 November 2020, the Swiss Central Authority:
  • facilitated collection of the documents by a representative for the third defendant, and
  • issued an attestation of service under Article 6 of the Hague Convention for both summonses.
• The third defendant’s Irish solicitors quickly queried whether proper Hague‑Convention service had been carried out and pointed out that the personal injuries summons had already expired.

2.5 The High Court (McDonald J. ex parte, then Egan J. inter partes)

Ex parte renewal (21 June 2021, McDonald J.):

• Orders made renewing all summonses for three months under Order 8, rule 1(4), on the basis of “difficulty in effecting service”.
• Simultaneously, the Court granted leave to serve out of the jurisdiction on all three defendants under Orders 11/11A.
• McDonald J. expressed puzzlement with the prevailing interpretation of Order 11A, rule 4, remarking that it appeared to “defeat the purpose” of the Brussels and Lugano regimes if one had to revert to Order 11’s leave regime for them.

Set-aside applications (Egan J.):

• The second and third defendants moved under Order 8, rule 2 to set aside McDonald J.’s renewal orders.
• Key legal framework: post‑2019 Order 8 requires “special circumstances” to justify renewal once the summons has expired for more than 12 months (Order 8, r. 1(4)).
• Guided by Court of Appeal case law (Murphy v HSE, Nolan), Egan J. held:
  • “special circumstances” is a higher bar than the prior “good reason” test;
  • prejudice is not part of a “gateway” test but part of the global evaluation of whether those circumstances justify extension.

Her conclusions (very broadly):

• Second defendant – personal injuries summons:
  • Renewal upheld: special circumstances existed because the Swedish receiving agency’s six‑month delay (and failure to notify) was exceptional and outside the plaintiff’s control; Telia had early detailed notice of the claim; no real prejudice shown.
• Second defendant – plenary summons:
  • Served within its lifetime (1 September 2020), albeit (assumed) irregularly due to absence of leave under Order 11A, rule 4.
  • Renewal upheld; any defect was cured once leave was granted and the defendants had not promptly objected.
• Third defendant – personal injuries summons:
  • Renewal refused: mishandling of service (wrong country, wrong procedure, late steps) was essentially a series of errors by the plaintiff’s side; did not amount to “special circumstances”.
• Third defendant – plenary summons:
  • Served, albeit irregularly, in November 2020 before expiry.
  • Egan J. treated the combination of irregularities and subsequent complexity as “special circumstances” justifying renewal, noting absence of prejudice and early detailed notice.

2.6 The Court of Appeal (Allen J., Pilkington & Butler JJ. concurring)

The Court of Appeal took a much stricter view and, critically, treated the plaintiff’s failure to obtain leave under Order 11A, rule 4(1) as effectively decisive.

Key points in the Court of Appeal’s reasoning:

• Order 11A, rule 4(1), on its literal reading, appeared to require:
  • that in mixed defendant cases (some EU/Lugano, some non‑EU/Lugano), the Order 11 “leave to serve out” regime applied to all foreign defendants.
• Because no leave had been sought for Telia and the third defendant, any steps purportedly taken to serve them could not be “reasonable efforts” or “difficulties in effecting service” in the legal sense: without leave, no valid attempt at service was possible.
• Allen J. stressed:
  • it is not for defendants’ solicitors or the Central Office to tell a plaintiff’s legal team what the Rules require;
  • reliance on informal Central Office advice could not be a “special circumstance”;
  • mere inadvertence, confusion or solicitor error, especially in ignoring clear procedural rules, rarely qualifies.
• As to the Swiss Central Authority’s certificate, the Court of Appeal found no basis for estoppel; at the time of service, the Swiss lawyers could not have known of the Irish procedural flaws or the summons being expired.

Outcome in the Court of Appeal:

• Allowed the second defendant’s appeal: set aside renewal of both the personal injuries and plenary summonses against Telia.
• Allowed the third defendant’s appeal: set aside renewal of the plenary summons against the Swiss defendant.
• Dismissed the plaintiff’s appeal seeking renewal of the personal injuries summons against the Swiss defendant.

2.7 Leave to appeal and the issues before the Supreme Court

The Supreme Court granted leave (14 November 2024) noting two systemic issues:

1. The correct meaning of “special circumstances” in Order 8, rule 1(4), and how it fits within the structure of the rule (including whether there is a “gateway” requirement);
2. The proper interpretation and effect of Order 11A, rule 4(1) in the context of:
   • the Brussels I Recast Regulation (Regulation (EU) 1215/2012),
   • the Lugano Convention,
   • and the EU Service Regulation and Hague Service Convention.

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3. Summary of the Supreme Court’s Judgment

3.1 On Order 8 and “special circumstances”

• The Court approved the main Court of Appeal guidance in Murphy v HSE, Nolan and Kearns v Evenson:
  • “Special circumstances” is a higher threshold than the former “good reason” test.
  • “Special” does not mean “extraordinary”, but does mean something beyond the ordinary or usual.
  • Inadvertence by lawyers will rarely amount to special circumstances, but it is not impossible in truly exceptional situations.
• The Court emphasised that it is misleading to speak of a rigid “gateway” stage:
  • There is one composite test: are there special circumstances which, when viewed with all relevant factors (prejudice, hardship, interests of justice), justify extension?
  • Prejudice and hardship are part of the Order 8, rule 1(4) analysis, not a separate second limb.
• The Court signalled that, in general, the circumstances relied upon should arise within the life of the summons.

3.2 On Order 11A, rule 4(1) and service out of the jurisdiction

• The Court held that the Court of Appeal’s reading of Order 11A, rule 4(1) was wrong in law.
• The phrase “each and every such co-defendant” refers only to co‑defendants who are not domiciled in an EU Member State or Lugano state, not to all defendants in the proceedings.
• Accordingly:
  • The requirement in Order 11 that leave to serve out be obtained does not apply to defendants domiciled in the EU or a Lugano state (who are governed by the Brussels/Lugano regime and Order 11A).
  • In “mixed” cases, only the non‑EU/Lugano defendants require leave under Order 11.
• This interpretation is required by the principle of EU-conforming interpretation:
  • National procedural rules may not undermine or condition rights conferred by EU instruments.
  • Re-imposing an Order 11 “forum conveniens” style leave filter on Brussels/Lugano defendants would be inconsistent with those instruments.
• The Court expressly rejected the idea that failure to obtain leave for Telia and the third defendant was a “knock-out blow”.

3.3 Application of the law to the facts

As to the second defendant (Sweden):

• Personal injuries summons:
  • The Swedish receiving agency’s unexplained delay and failure to notify amounted to special circumstances.
  • Telia had early and detailed notice; no material prejudice was shown.
  • The fact that non‑renewal would likely render the claim statute‑barred was a relevant, though not decisive, hardship factor.
  • Renewal upheld.
• Plenary (protected disclosure) summons:
  • Properly served within time (September 2020).
  • Any perceived irregularity about leave was illusory given the correct interpretation of Order 11A, rule 4(1).
  • Renewal order stood (though strictly unnecessary).

As to the third defendant (Switzerland):

• Personal injuries summons:
  • No steps to serve in Switzerland via the Hague Convention were taken before expiry in July 2020.
  • Post‑expiry efforts (October–November 2020) and irregular Hague service could not retrospectively create special circumstances arising within the life of the summons.
  • No special circumstances justifying renewal.
  • Appeal on this aspect dismissed; renewal properly set aside.
• Concurrent (protected disclosure) summons:
  • Served (albeit irregularly) by the Swiss Central Authority in November 2020 before expiry in February 2021.
  • One perceived irregularity (lack of leave under Order 11A, rule 4(1)) did not exist on the Supreme Court’s interpretation; the remaining irregularity (bypassing the Irish Central Authority) had caused no demonstrated prejudice.
  • The Court characterised the situation as involving a widespread mistake of law about Order 11A, rather than mere inattention.
  • Given early notice, absence of prejudice, and actual (though imperfect) service within time, the Court held that special circumstances existed and justified renewal.
  • Renewal upheld for the concurrent summons.

Final orders (para. 130):

1. Appeal allowed as against the second defendant; the renewals of both the personal injuries and plenary summonses were restored.
2. Appeal allowed in part as against the third defendant; renewal of the concurrent (plenary) summons restored.
3. Appeal dismissed insofar as it challenged the setting aside of the renewal of the personal injuries summons against the third defendant.

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4. Detailed Analysis

4.1 The procedural framework

4.1.1 Renewal of summons – Order 8 RSC

Order 8 governs the validity of originating summonses and their renewal. The key provisions are:

• r. 1(1): a summons is in force for 12 months from its date of issue.
• r. 1(2): before expiry, the Master may renew for three months if:
  • “reasonable efforts” were made to serve, or
  • “other good reason” exists.
• r. 1(3)–(4): after 12 months (even if already renewed once), only the Court may renew, for three months at a time, where it is:

  “satisfied that there are special circumstances which justify an extension.”

The 2019 amendment replaced “good reason” at court level with this stricter “special circumstances” test, clearly intended to tighten control over stale proceedings.

4.1.2 Service out of the jurisdiction – Orders 11, 11A, 11D and 11E

• Order 11 (traditional regime):
  • Applies where no EU jurisdiction instrument (Brussels/Lugano) governs.
  • Generally requires leave to issue and serve out.
  • Leave involves “gateway” grounds (Order 11, r. 1) and considerations akin to forum conveniens (r. 2, r. 5).
• Order 11A:
  • Implements Brussels I Recast and the Lugano Convention.
  • Where those instruments apply, proceedings can often be served without leave, subject to the specific terms of the Order (e.g. r. 2).
  • r. 4(1) addresses the position in “mixed” actions (some Brussels/Lugano defendants, some not).
• Order 11D: gives effect to the EU Service Regulation (Regulation 1393/2007).
  • Regulates procedural mechanics of serving documents between EU Member States.
  • Designates the Irish CSCO as “transmitting agency” and foreign agencies as “receiving agencies”.
• Order 11E: implements the Hague Service Convention for non‑EU signatory states (e.g. Switzerland).
  • Requires requests for service abroad to be lodged with the Master of the High Court as the Irish Central Authority.
  • The Master certifies compliance and transmits to the foreign Central Authority.

4.2 Precedents shaping the Court’s approach

4.2.1 Murphy v HSE [2021] IECA 3

In Murphy, Haughton J. provided the first detailed analysis of “special circumstances” under the amended Order 8:

• “Special circumstances” is fact‑specific; no rigid rules.
• The bar is higher than “good reason”; “special” denotes something out of the ordinary but not necessarily “extraordinary”.
• Prejudice and hardship are integral to deciding whether those special circumstances “justify” renewal.
• Inadvertence or inattention by lawyers will rarely be enough (para. 77).
• Appellate courts should afford trial judges a margin of appreciation on renewal decisions, interfering only for error of principle or clear misapprehension of facts.

4.2.2 Nolan v Board of Management of St Mary’s Diocesan School [2022] IECA 10

Noonan J. clarified the structure of the Order 8 test and corrected a potential misreading of Murphy:

• There is not a separate “second limb” test of prejudice distinct from the existence of special circumstances.
• However, the court must first be satisfied that some special circumstances exist at all before weighing prejudice and hardship.
• In other words, you do not begin with prejudice; you begin by asking whether anything special has been shown.

4.2.3 Kearns v Evenson [2023] IECA 297

Butler J. synthesised Murphy and Nolan, emphasising (para. 100):

• The plaintiff bears the onus of identifying special circumstances that may justify renewal.
• However, consideration of justification necessarily involves a single holistic balancing process, including any countervailing prejudice to the defendant.
• It is not a two‑stage test with different standards at each stage.

4.2.4 Chambers v Kenefick [2005] IEHC 526 and pre‑2019 jurisprudence

Under the former “good reason” standard, Finlay Geoghegan J. articulated a structured approach still influential post‑2019:

1. Is there a reason which could constitute “good reason” for renewal?
2. If so, is it in the interests of justice to renew, considering hardship to each side?

Murphy and Power adapt this logic to the stricter “special circumstances” threshold, but retain the core focus on balancing justice between the parties.

4.2.5 Service & statutory interpretation: Downes v TLC, Moynihan and Heather Hill

• Moynihan v Dairygold Co‑op [2006] IEHC 318 (Peart J.): emphasised that practitioners must pay careful attention to the 12‑month service limit; courts should not lightly excuse neglect.
• Downes v TLC Nursing Home [2020] IEHC 465 (Simons J.): strongly warned that inadvertence or “inattention” will “rarely, if ever” be special circumstances under the new Order 8.
• Heather Hill Management Co CLG v An Bord Pleanála [2022] 2 ILRM 313 (Murray J. for the Supreme Court):
  • restated the modern Irish approach to statutory interpretation;
  • emphasised reading words in their textual, contextual and purposive setting and resorting to purposive/filling-in only where ambiguity remains.

The Supreme Court in Power applies Heather Hill to a piece of secondary legislation (Order 11A, rule 4(1)) and overlays an additional EU-conforming interpretation requirement.

4.3 The Supreme Court’s approach to “special circumstances” under Order 8

4.3.1 One composite test, not a rigid “gateway” plus second stage

At paras. 95–96, Woulfe J. endorses the Court of Appeal authorities but adds a clarifying gloss:

• Order 8, rule 1(4) poses a single question:

  “are there special circumstances which justify an extension?”

• The court must look at:
  • the nature of the circumstances put forward (are they special, i.e. beyond the norm?), and
  • whether, in light of all relevant factors (especially prejudice and hardship), they justify renewal.
• It is unhelpful to speak of a rigid preliminary “gateway” where special circumstances are assessed in isolation, divorced from justice between the parties.
• However, something must be shown as special; pure balancing of prejudice in a vacuum is not enough.

This harmonises Murphy, Nolan and Kearns: there is no two-tier test, but there is a logical sequence. First, identify circumstances that are arguably special; second, decide whether they justify renewal once the whole context is considered.

4.3.2 Inadvertence versus truly exceptional mistakes

The Court reiterates that – in line with Murphy – simple neglect or inattentiveness by legal advisers is almost never enough:

• Lawyers are assumed to know the 12‑month limit and the service rules.
• Absent exceptional features, their errors should not be allowed to undermine the discipline imposed by Order 8.

But the Court carefully leaves a door open:

• There may be rare cases where what appears to be “error” is in fact part of a systemic or widely held misunderstanding of a rule, sometimes even shared by courts or official bodies.
• In such cases, categorising the situation as mere “inadvertence” is overly simplistic.

This nuance becomes crucial when the Court addresses the misunderstanding of Order 11A, rule 4(1).

4.3.3 Timing: special circumstances usually must arise within the life of the summons

Woulfe J. makes an important, practical observation (para. 120):

• Special circumstances which can justify renewal normally must occur during the 12‑month life of the summons.
• Events occurring only after expiry will rarely retrospectively justify renewal, particularly where no attempt at service was made during the validity period.

This principle is decisive in relation to the third defendant’s personal injuries summons, where:

• no Hague‑Convention steps were taken before expiry;
• the only meaningful steps occurred after expiry.

4.4 The reinterpretation of Order 11A, rule 4(1)

4.4.1 The text of the rule

Order 11A, rule 4(1) provides:

“Where two or more defendants are parties to proceedings to which the provisions of this Order apply, but not every such co-defendant is domiciled in:
(i) A Member State of the European Union, or
(ii) A Contracting State of the Lugano Convention,
for the purposes of Regulation No. 1215/2012, the Lugano Convention, or the 1998 Act, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co-defendant.”

There were two rival interpretations:

1. Broad (“literal”) reading (favoured below by the Court of Appeal and defendants):
   • Where there is a “mixed” set of foreign defendants, the Order 11 leave requirement applies to all foreign defendants, including those domiciled in Brussels/Lugano states.
2. Narrow (“alternative”) reading (eventually adopted by the Supreme Court):
   • “each and every such co-defendant” refers only to those co‑defendants who are not domiciled in EU/Lugano states, i.e. only to the purely Order 11 defendants.

4.4.2 Applying Heather Hill and EU‑conforming interpretation

Using the interpretative approach in Heather Hill and DPP v Brown, Woulfe J. reasons as follows:

1. Text and grammar:
   • The word “such” in “each and every such co-defendant” naturally refers back only to the previously described class – that is, co‑defendants who are not domiciled in an EU or Lugano state.
   • Thus, the ordinary meaning points to the narrow reading.
2. Context:
   • Order 11A is specifically designed to implement Brussels I Recast and the Lugano Convention, which confer jurisdictional rights independent of leave.
   • Reading rule 4(1) to re-impose an Order 11 leave filter on EU/Lugano defendants clashes with that context.
3. Mischief and purpose:
   • The evident purpose of rule 4(1) is to clarify what happens in mixed proceedings and to confirm that Order 11 continues to govern service on non‑EU/Lugano defendants.
   • There is no legitimate policy reason to subject EU/Lugano defendants to Order 11 leave simply because they are sued alongside a non‑EU defendant.
4. EU‑law compatibility:
   • Brussels and Lugano allocate jurisdiction on the basis of specified connecting factors (domicile, place of performance, etc.), not on judicial discretion akin to forum conveniens.
   • Allowing Order 11 discretion and gateway requirements to control access to service on Brussels/Lugano defendants would permit Irish courts to refuse jurisdiction where EU law confers it.
   • National rules must, wherever possible, be read so as to conform with EU law; this compels the narrow interpretation.

On this basis, the Supreme Court holds that the only tenable reading of Order 11A, rule 4(1) is that:

• the Order 11 leave requirement applies only to co‑defendants who are not domiciled in EU/Lugano states;
• it does not apply to co‑defendants domiciled in EU/Lugano jurisdictions.

4.4.3 Consequences for this case

The entire “failure to obtain leave” edifice on which the Court of Appeal had built its analysis collapsed:

• Telia (Sweden) is domiciled in an EU Member State; no Order 11 leave was required for service out.
• The third defendant (Switzerland) is domiciled in a Lugano state; again, no Order 11 leave was required.
• The first defendant (Tajikistan) is outside the EU/Lugano system, so Order 11 leave was properly required in respect of it, but that did not infect service on the EU/Lugano defendants.

Allen J.’s characterisation of the failure to obtain leave as “the beginning and the end of the matter” was therefore an error in principle. The Supreme Court proceeded to analyse renewal on the footing that there had been no fatal jurisdictional defect vis‑à‑vis the second and third defendants.

4.5 Application of the principles to each defendant

4.5.1 Second defendant – Telia (Sweden)

a) Personal injuries summons

Special circumstances?

• The decisive factor was the conduct of the Swedish receiving agency under the Service Regulation:
  • It was supposed to serve within one month or notify the CSCO promptly of any delay (Article 7).
  • Instead, it took roughly six months and provided no interim explanation.
  • The plaintiff’s solicitor, having transmitted under the Regulation, had no control over that step and reasonably expected compliance.
• These circumstances were beyond the ordinary and outside the plaintiff’s responsibility, qualifying as “special circumstances”.

Do they justify renewal? The Court emphasised (paras. 113–114):

• Telia had:
  • early and detailed notice of the claims (summons sent in July 2019, extensive pre‑issue correspondence),
  • knowledge of the issues for years beforehand,
  • and a fully pleaded personal injuries summons.
• This enabled Telia to:
  • preserve documents;
  • start investigating and collecting evidence;
  • notify insurers.
• No concrete prejudice was identified arising from the delay in formal service.
• By contrast, refusing renewal would probably time‑bar the plaintiff’s claim, a hardship the Court could legitimately take into account (without treating limitation as determinative).

On this balance, the Court held that renewal was plainly in the interests of justice and should not be set aside.

b) Plenary (protected disclosure) summons

As this summons was indisputably served within its lifetime (September 2020) the Court viewed the later renewal application as driven largely by the now-discredited concern that absence of leave under Order 11A, rule 4(1) had rendered service invalid.

• Since no leave was ever required, service was effectively regular from the outset.
• In any event, the renewal order did not prejudice Telia and there was no reason to set it aside.

4.5.2 Third defendant – Aga Khan Fund (Switzerland)

a) Personal injuries summons

Crucial facts:

• The plaintiff’s solicitor knew (by late January 2020) that service on the Swiss defendant should be under the Hague Convention.
• Yet no step was taken to serve under the Hague procedure before expiry of the personal injuries summons in July 2020.
• All meaningful efforts (the October 2020 letter to the Swiss Central Authority and the November 2020 certificate) occurred after expiry.

Supreme Court’s analysis:

• Special circumstances must generally arise during the life of the summons (para. 120).
• The plaintiff’s affidavit did not explain why Hague‑conforming steps were not taken between January 2020 and July 2020.
• In that vacuum, it was not open to find special circumstances justifying renewal.
• Post‑expiry irregular service in November 2020 could not retrospectively make good the earlier inaction.

Accordingly, the Court agreed with Egan J. (and essentially with the Court of Appeal’s ultimate conclusion, albeit not its reasoning on Order 11A) that renewal of the personal injuries summons against the Swiss defendant was not justified.

b) Concurrent (protected disclosure) summons

Key differences from the personal injuries summons:

• Issued on 7 February 2020 and served (irregularly) in November 2020, before expiry in February 2021.
• The Swiss Central Authority confirmed service under Article 6 of the Hague Convention.

What were the alleged irregularities?

• (1) Order 11A, rule 4(1) leave issue:
  • The High Court and Court of Appeal had treated absence of leave as an irregularity.
  • The Supreme Court held no leave was ever required for this defendant, so this “irregularity” dissolved.
• (2) Order 11E/Hague Convention procedural defect:
  • Request for service went directly to the Swiss Central Authority, bypassing the Irish Central Authority (the Master).
  • This was not technically compliant but had
  • in fact resulted in successful service,
  • with no demonstrated prejudice to the defendant.

Why did these circumstances become “special”?

• By late 2020/early 2021, there was a widely held mistaken view among practitioners – and, implicitly, even some judges – that Order 11A, rule 4(1) required leave to serve out in mixed-defendant Brussels/Lugano cases.
• The plaintiff’s solicitor’s procedural choices were heavily influenced by this systemic misinterpretation.
• The Central Office had in fact understood the correct position; McDonald J. had been “puzzled” by the plaintiff’s interpretation, reinforcing the sense that there was genuine legal uncertainty.
• In these unusual circumstances, the Court treated the solicitor’s conduct as more than mere inattentiveness; it was a product of a generalised legal confusion about a complex and ambiguous rule.

Balancing justice between the parties:

• The third defendant:
  • had early and detailed notice of the claim;
  • could not point to any specific prejudice caused by the manner of service (the absence of a certificate from the Master had no practical impact);
  • waited some time before moving to set aside, in part because of the complexity of the issues.
• The plaintiff:
  • would face the likely loss of his protected disclosure claim if renewal were refused;
  • had, despite procedural missteps, achieved actual (though imperfect) service within the life of the summons.

On balance, the Supreme Court concluded that this was one of those exceptional cases where a cluster of legal misapprehensions, shared to some extent across the system, together with actual timely service and no prejudice, could amount to special circumstances justifying renewal.

4.6 Treatment of solicitor error and Central Office “advice”

The Court draws a careful line between:

• impermissible reliance on Central Office “advice”, and
• a broader, system‑wide misunderstanding of a procedural rule.

On one hand, the Court echoes the Court of Appeal in insisting that:

• It is not the function of Central Office staff to give legal advice.
• Solicitors and counsel must not “outsource” their professional responsibility to court staff.
• Reliance on alleged oral advice from Central Office is, in itself, not a special circumstance.

On the other hand, the Court recognises that:

• The wording and structure of Order 11A, rule 4(1) was genuinely unclear and had led to competing professional interpretations.
• The Court of Appeal itself had adopted the broader reading, demonstrating that experienced judges could reasonably fall into the same error.
• This kind of widespread legal uncertainty is qualitatively different from a single solicitor simply forgetting a time limit.

Thus, while the Court keeps faith with Murphy and Downes in warning that solicitor negligence will rarely warrant renewal, it carves out a narrow space for treating systemic misunderstanding of ambiguous rules as capable of amounting to “special circumstances” when combined with other factors (timely service, no prejudice).

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5. Complex Concepts Simplified

5.1 What is “renewal of a summons” and why does it matter?

• When a plaintiff starts a High Court action by issuing a summons, it is only “alive” for 12 months unless:
  • it is served on the defendant, or
  • the Court (or Master, before expiry) renews it.
• If a summons expires and is not renewed, the proceedings cannot effectively continue.
• Often, limitation periods under the Statute of Limitations will have run out by the time the expiry issue is noticed, leaving the plaintiff unable to re‑issue fresh proceedings.

Thus, renewal is frequently the difference between a claim proceeding and being permanently lost.

5.2 “Service out of the jurisdiction”

• Bringing an Irish action against a foreign defendant usually requires serving them with the proceedings in their own country.
• “Service out of the jurisdiction” is the process by which an Irish summons is formally notified to a defendant in another state, through methods laid down by:
  • international treaties (Hague Service Convention),
  • EU instruments (Service Regulation), or
  • domestic rules (Order 11 when no treaty applies).
• Historically, service out was seen as a serious step requiring prior leave of the court (Order 11).
• Where EU or Lugano rules govern, service is often allowed without leave, because jurisdiction is determined by the EU instruments themselves.

5.3 Brussels Regulation, Lugano Convention and domestic rules

• The Brussels I Recast Regulation and the Lugano Convention are European instruments that:
  • allocate jurisdiction among courts of different Member/Contracting States;
  • limit the ability of domestic courts to refuse jurisdiction when certain connecting factors are present.
• Order 11A is Ireland’s way of implementing those instruments in domestic procedure.
• However, national rules of service and renewal (like Orders 8, 11, 11D, 11E) must operate in a way that does not contradict those European rules.
• The Supreme Court’s EU‑conforming reading of Order 11A, rule 4(1) is an example of this: Ireland cannot re‑introduce discretionary leave filters for service in Brussels/Lugano cases where EU law has structured the jurisdictional regime exhaustively.

5.4 EU Service Regulation vs Hague Service Convention

• EU Service Regulation (1393/2007):
  • Applies to service of documents between EU Member States.
  • Service is carried out between designated “transmitting” and “receiving” agencies.
  • Requires prompt action and notification of delays.
• Hague Service Convention:
  • Applies to service between signatory states outside the EU framework (e.g. Ireland–Switzerland).
  • Each state designates a Central Authority to receive requests for service from abroad.
  • In Ireland, requests are channelled through the Master of the High Court, who then transmits them abroad.

In Power, the plaintiff correctly used the EU Service Regulation for Telia (Sweden) but incorrectly bypassed the Irish Central Authority under the Hague Convention when serving the Swiss third defendant. The Supreme Court treated the EU agency’s delay as a special circumstance, and the Hague procedural misstep as an irregularity that, in context, did not justify refusing renewal where service had in fact been achieved in time and no prejudice resulted.

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6. Impact and Future Significance

6.1 Clarification of the renewal test under Order 8

The decision brings much‑needed Supreme Court authority to bear on the post‑2019 renewal regime:

• Confirms that courts must perform a single, holistic assessment under Order 8, rule 1(4).
• Reinforces that “special circumstances” is a real and demanding threshold, but that its content is flexible and fact‑specific.
• Highlights that timing matters: plaintiffs will normally need to point to circumstances arising within the life of the summons.
• Signals that actual notice and lack of prejudice can be powerful considerations when weighing whether special circumstances justify renewal, especially where limitation would otherwise bar the claim.

6.2 EU‑conforming interpretation of procedural rules

The Court’s reading of Order 11A, rule 4(1) has broad ramifications:

• It firmly limits the reach of the Order 11 leave regime in cases where Brussels/Lugano applies.
• It protects the substantive jurisdictional rights conferred by EU law from being eroded by domestic procedural filters.
• It underscores the duty of Irish courts to read rules of court in a way that respects EU instruments wherever a plausible conforming interpretation exists.
• Practically, in “mixed” actions, practitioners must:
  • seek Order 11 leave only for non‑EU/Lugano defendants (e.g. Tajikistan in this case);
  • use the appropriate EU or treaty‑based service mechanisms for EU/Lugano defendants without seeking redundant leave.

6.3 Professional responsibility and systemic misinterpretation

While reaffirming that solicitor negligence will almost never justify renewal, the Court subtly recognises that:

• Legal practice does not operate in a vacuum; rules can be genuinely ambiguous and give rise to entrenched misreadings.
• Where:
  • a rule is obscure,
  • experienced practitioners and lower courts have misapplied it,
  • and a plaintiff has nonetheless attempted to comply and effected actual service within time,
  the interests of justice may permit treating that situation as a “special circumstance”.

This may make courts slightly more receptive, in future, to arguments based on complex and evolving procedural landscapes, as opposed to simple oversight.

6.4 Litigation strategy in international and multi‑defendant cases

The judgment carries several practical lessons for litigators:

• In international cases, map out carefully:
  • which defendants are governed by Brussels I Recast or Lugano,
  • which are governed by Order 11 alone,
  • and which service instrument applies (EU Regulation vs Hague Convention).
• Do not assume that errors in one segment (e.g. an Order 11 defendant) automatically contaminate others (EU/Lugano defendants).
• When relying on external agencies (EU receiving agencies or foreign Central Authorities), record your steps and dates carefully; unexplained delays by those agencies can now clearly constitute “special circumstances”.
• Always consider whether a deeming order for irregular but timely service might be sought during the life of the summons, rather than waiting to renew post‑expiry.

6.5 Policy balance between procedural discipline and substantive justice

Finally, the case reflects a deliberate judicial balancing act:

• On one side, maintaining procedural discipline:
  • time limits matter;
  • rules of service are not mere technicalities;
  • solicitors remain responsible for knowing and applying them.
• On the other side, avoiding undue formalistic injustice:
  • where a defendant has long had full notice and suffers no real prejudice,
  • and where procedural difficulties stem from external agencies or genuinely confusing rules,
  • the Court is willing to permit claims to proceed, especially when refusal would irrevocably extinguish serious causes of action.

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7. Conclusion: Key Takeaways

Power v Telia Company AB & ors is a landmark decision for Irish civil procedure. It establishes that:

1. “Special circumstances” under Order 8, rule 1(4) require something beyond the ordinary, but the assessment is holistic.
   • Prejudice, hardship and the interests of justice are integral to determining whether identified special circumstances justify renewal.
   • Events within the life of the summons are normally decisive; post‑expiry attempts cannot usually rescue wholesale inaction.
2. Order 11A, rule 4(1) does not re‑impose the Order 11 leave regime on EU/Lugano defendants.
   • The phrase “each and every such co‑defendant” refers only to non‑EU/Lugano defendants.
   • Any broader reading would be incompatible with Brussels I Recast and the Lugano Convention.
3. Agency delay and systemic legal misunderstanding can, in rare cases, amount to special circumstances.
   • Unexplained failure by a foreign receiving agency to effect or notify service can be a compelling special circumstance.
   • A widespread misinterpretation of an ambiguous procedural rule, especially when shared across the system, may contribute to special circumstances when combined with timely actual service and absence of prejudice.
4. Solicitor error alone remains an unsafe foundation for renewal applications.
   • Mere negligence, inadvertence or reliance on informal office advice is generally insufficient.

In outcome terms, the Supreme Court preserved the plaintiff’s claims against Telia in both sets of proceedings and against the Swiss defendant in the protected disclosure case, while allowing the personal injuries claim against the Swiss defendant to fall away. In doctrinal terms, it has significantly refined Irish law on renewal of summonses and provided a definitive, EU‑conforming construction of Order 11A, rule 4(1).

The judgment will guide litigants, practitioners and courts in managing the delicate balance between procedural rigour and substantive justice, particularly in complex multi‑jurisdictional litigation.