“Special circumstances” as a strict gateway to renewing an unserved summons: S.W. v Health Service Executive [2025] IEHC 526

Introduction

In S.W. v Health Service Executive [2025] IEHC 526, the High Court (Cahill J.) refused an application to renew a plenary summons under Order 8, rule 1(4) of the Rules of the Superior Courts (RSC) on the basis that the plaintiff had not demonstrated the existence of “special circumstances” that would justify an extension of time to serve an unserved summons issued in July 2020. The judgment offers:

a precise re-statement, aligned with Court of Appeal authority, that “special circumstances” is a gateway requirement which must be satisfied before any consideration of prejudice or “interests of justice” arises; and
a calibrated application of the High Court’s inherent jurisdiction to hear this motion in camera, given the intimate connection to in camera childcare proceedings and the sensitive nature of the plaintiff’s childhood.

The proceedings arise from alleged failures by the HSE (as successor to prior health boards) to protect the plaintiff from abuse, neglect, and deprivation while a child, contrary to constitutional rights, the ECHR, and statutory duties under the Child Care Acts. The summons, issued on 8 July 2020, was never served within the 12-month period. The plaintiff’s solicitor later sought renewal (first ex parte in October 2024, then on notice in January 2025), advancing reasons including a mistaken belief that service had been effected, the impact of related criminal proceedings, and delays in obtaining a psychiatric report.

Summary of the Judgment

In camera ruling: The Court directed that the application be heard in camera in the exercise of its inherent jurisdiction, given the close connection to in camera childcare proceedings and the sensitive nature of the plaintiff’s childhood (paras 6–17). The judge carefully tailored the order to the application only, avoiding unnecessary factual disclosure.
Renewal application refused: The Court held that none of the reasons advanced—solicitor error/mistaken belief, the ongoing criminal process and stress on the plaintiff, or the pursuit of a psychiatric report—amounted to “special circumstances” within Order 8, rule 1(4) (paras 53–78). As a result, no balancing of prejudice or “interests of justice” arose (paras 79–84).
Costs: Provisional view that costs should follow the event in favour of the HSE, with a costs hearing listed for 28 October 2025 (paras 87–88).

Key Factual Features

Summons issued: 8 July 2020. Not served within 12 months (paras 1–5, 41).
Solicitor’s mistaken assumption that service occurred in July 2020 contradicted by contemporaneous correspondence (paras 20–34, 39).
First acknowledgement that renewal was needed appears by April 2023, yet the ex parte application only issued in October 2024 (paras 27–40).
Criminal proceedings in 2023 involving the same underlying events (paras 19, 62–70).
Intermittent steps to seek a psychiatric report; no sustained expedition and no necessity shown for service (paras 72–78).

Analysis

Precedents Cited and Their Influence

Order 8, rule 1(4) RSC: the “special circumstances” gateway

Murphy v HSE [2021] IECA 3: The Court of Appeal made clear that post-lapse renewal involves a single test—whether there are “special circumstances which justify an extension”—not a two-tier test of “special circumstances” plus “good reason” (para 44; Murphy at [62]). It also emphasised that while “special” does not mean “extraordinary,” the circumstances must be beyond the ordinary (para 45; Murphy at [70]–[72]).
Nolan v Board of Management of St Mary’s Diocesan School [2022] IECA 10: Reinforced that prejudice has no role in deciding whether special circumstances exist—the gateway must first be crossed. Only then may a court consider whether those circumstances justify renewal (para 50). Stress of litigation will “in the rarest of cases” qualify, and generally only with cogent medical evidence showing inability to instruct (paras 65–66; Nolan at [31]–[35]).
Power v CJSC Indigo Tadjikistan [2024] IECA 47: Authoritatively described “special circumstances” as a “gateway requirement” before prejudice is considered, and held that misunderstanding the rules through failure to read them cannot amount to a special circumstance (para 52; Power at [100]–[101], [184]).
Moynihan v Dairygold Co-op Society Ltd [2006] IEHC 318, Downes v TLC Nursing Home Ltd, Nolan v Trustees of Bridge United AFC [2021] IEHC 335: A line of authority underscoring that inadvertence, oversight, or solicitor error do not typically meet even “good reason,” still less the heightened “special circumstances” threshold (paras 56–58).
Moloney v Lacey Building and Civil Engineering Ltd [2010] 4 IR 417 and Murphy v HSE: An expert report can justify non-service only if reasonably necessary to responsibly maintain the claim and pursued with expedition (paras 75–77).
Brereton v Governors of the National Maternity Hospital [2020] IEHC 172 and Altan Management (Galway) Ltd v Taylor Architects Ltd [2021] IEHC 218: Length of delay is material; delays approaching years post-expiry tend against renewal (paras 83–84).

In camera jurisprudence and child protection confidentiality

Gilchrist v Sunday Newspapers [2017] 2 IR 284: Recognised that Article 34.1’s open justice principle admits carefully confined exceptions, whether grounded in statute or inherent jurisdiction, with strict construction of any departure (paras 6–7).
HSE v McAnaspie [2012] 1 IR 548: The prohibition on identifying a child subject to care proceedings under s.31(1) of the Child Care Act 1991 persists notwithstanding the child’s attainment of majority (paras 8–10).
Re PM; SM v SL [2022] IEHC 449: The High Court may receive in camera materials from lower courts and has jurisdiction to order that particular aspects of a High Court case connected to in camera matters be heard in camera, without necessarily converting the entire case into an in camera proceeding (paras 11–13).

Legal Reasoning

1. The Order 8 framework: a single, strict gatekeeping test

Cahill J adopts the Court of Appeal’s settled approach: after a summons has lapsed unserved for 12 months, renewal can be ordered only where the court is satisfied that “special circumstances” exist which justify an extension (paras 41–49). This is not merely a more demanding variant of “good reason”; it is a distinct gateway requirement. Only when that gateway is crossed may the court weigh overall justification, including prejudice and the interests of justice (paras 46–51).

2. Application to the asserted grounds

Mistake/inadvertence by the solicitor: A bare assertion that the solicitor assumed service had occurred—contradicted by contemporaneous letters and never substantiated—does not approach the threshold (paras 55–61). The authorities consistently hold that inadvertence, oversight, or failure to read the rules will “rarely” suffice (Murphy v HSE at [77]; Power at [184]). No exceptional external event (illness, disaster) was shown.
Impact of ongoing criminal proceedings and stress on the plaintiff: While the Court recognised the profound stress of the criminal trial, it held that, on the evidence, the criminal process did not explain the failure to serve within the initial 12 months or the 18-month delay to bring a renewal motion (paras 62–71). In line with Nolan, a general appeal to stress, absent medical evidence of inability to instruct, cannot be a special circumstance. Moreover, certain procedural steps (service, chasing an appearance) could have proceeded without significant client involvement (para 68).
Pursuit of a psychiatric report: The Court found no necessity for such a report to justify service in this non-professional negligence claim, and—critically—no expedition (nearly three years’ inactivity between October 2020 and July 2023) (paras 72–78). The Moloney/Murphy criteria—necessity and alacrity—were not satisfied.

3. Interests of justice and prejudice

Because no “special circumstances” were established, the court held that no prejudice analysis properly arises (paras 79–80). The judge nevertheless noted, obiter, that specific prejudice to the plaintiff, such as imminent limitation expiry, was not demonstrated (para 80), and that although the HSE argued prejudice from very stale claims turning on oral recollection, any prejudice was tempered by early notice of a potential claim and the overlap with criminal processes and documentation (para 81). Even if a balancing exercise had been permissible, the extraordinary length of the delay—over four years from issue to the first motion; three years post-expiry—would have weighed heavily against renewal (paras 82–84).

Impact and Significance

Doctrinal consolidation

Gateway reaffirmed: The judgment powerfully reiterates that “special circumstances” is a strict gatekeeping requirement for post-lapse renewal of an unserved summons. Prejudice/“interests of justice” are not a second, parallel test; they come into play only if the gateway is crossed. This coheres fully with Murphy, Nolan, and Power.
Solicitor error is rarely enough: A practitioner’s mistaken belief, inadvertence, or administrative oversight—absent exceptional external events—will almost never amount to “special circumstances.” This is a clear cautionary message to litigators about file management, service diaries, and timely renewal applications.
Criminal proceedings and stress: Concurrent criminal litigation—even one intimately tied to the civil claim—does not per se justify non-service. Where stress is pleaded, clear medical evidence of an inability to instruct is generally required. Moreover, steps like service and chasing appearances often do not depend on intensive client engagement.
Expert evidence: Outside professional negligence contexts, medical reports are unlikely to be “reasonably necessary” to responsibly maintain a claim at the point of service. In any event, expedition is indispensable.

Practical consequences for future litigants

Act early: If service within 12 months is in doubt, apply under Order 8, rule 1(2) before expiry. After expiry, expect a significantly higher threshold.
Evidence, not assertion: Any claimed special circumstance should be fully evidenced (e.g., medical affidavits showing inability to instruct; contemporaneous documentation).
Manage expert reports: Demonstrate necessity and documented expedition. In most non-professional negligence cases, service should not await a medical report.
Be candid and consistent: Inconsistencies (e.g., asserting service occurred, then conceding it did not) harm credibility and undermine the “special circumstances” case.
Limitation strategy: Establish how refusal to renew would prejudice the plaintiff by rendering the claim time-barred, and address any statutory extensions or discoverability rules where applicable. Here, the court noted the HSE’s contention that the claim was already statute-barred (para 80), which the plaintiff did not convincingly meet.

Open justice and child protection confidentiality

The judgment offers a refined, principled approach to balancing open justice with the imperative to protect the confidentiality of childcare proceedings and the privacy of those formerly subject to them:

Targeted in camera orders: The Court confined the in camera direction to this motion, reflecting that the materials and issues at this stage were closely tied to childcare proceedings and the plaintiff’s childhood (paras 14–17).
Continuing protection under s.31 Child Care Act 1991: The Court adopted McAnaspie’s understanding that non-identification obligations persist beyond the child’s reaching majority (paras 8–10).
Inherent jurisdiction: Drawing on Gilchrist and SM v SL, the court exercised the common law power to regulate proceedings to prevent undermining district court protections, consistent with Article 6 ECHR privacy considerations (para 15).

Complex Concepts Simplified

Issue vs service: “Issuing” proceedings means having the court office seal the summons; “serving” means formally delivering it to the defendant in accordance with the rules. A summons is valid for 12 months from issue for service.
Renewal before expiry vs after expiry: Before expiry, renewal can be sought more easily (Order 8, rule 1(2) upon “reasonable efforts” or “good reason”). After expiry, renewal is much harder: the plaintiff must satisfy the court that “special circumstances” justify extension (Order 8, rule 1(4)).
“Special circumstances” gateway: A higher threshold than “good reason.” It means circumstances beyond the ordinary—typically external events or demonstrable necessities—supported by evidence. Only if met does the court weigh overall justification and any prejudice.
“Interests of justice” and prejudice: Considered only after special circumstances are established; cannot rescue an application where none exist.
In camera: A hearing held in private (press/public excluded) to protect sensitive information, such as matters arising from childcare proceedings. Orders are tailored to necessity and strictly construed as exceptions to open justice.
Limitation periods and majority: For injuries in childhood, time generally runs from turning 18. The court noted, without deciding, the HSE’s position that the claim was already statute-barred by July 2012 (para 80).

Why the Plaintiff’s Case Failed

No evidence that the summons was served in July 2020; correspondence indicated the opposite (paras 21–34, 39).
Even by April 2023, when renewal was acknowledged as necessary, a further 18 months elapsed before the first renewal motion (para 38–40).
Solicitor mistake/inadvertence is, in law, rarely a special circumstance; here it was unaccompanied by any external exceptional event (paras 56–61).
Stress/criminal proceedings lacked medical substantiation and did not explain failure to take basic procedural steps; some steps did not require the plaintiff’s active involvement (paras 62–71).
The psychiatric report was neither necessary to serve nor pursued with expedition (paras 72–78).
Given the absence of special circumstances, no interests-of-justice balancing could be undertaken (paras 79–84).

Practical Checklist for Practitioners

Diary the 12-month service deadline the day the summons issues; set reminders well in advance.
If service may not be achieved, apply to renew before expiry under Order 8, rule 1(2).
Post-expiry, prepare an evidence-backed affidavit demonstrating special circumstances beyond ordinary inadvertence or oversight.
If relying on client incapacity or stress, exhibit medical evidence showing an inability to instruct during the relevant period.
Document efforts to procure any necessary expert report; demonstrate why service depended on that report and show expedition.
Maintain consistency and candour in correspondence; avoid assertions that service occurred unless you retain formal proof of service.
Address limitation head-on: explain how renewal affects limitation and any prejudice if refused.

Conclusion

S.W. v HSE is a clear and careful application of established Court of Appeal authority. It reaffirms that after the 12-month service period expires, “special circumstances” under Order 8, rule 1(4) are a strict gateway to renewal. Solicitor error, an unparticularised appeal to client stress arising from parallel criminal proceedings, and the unexpedited pursuit of a non-essential expert report do not satisfy that gateway. The judgment also offers useful guidance on the High Court’s measured use of its inherent jurisdiction to protect the confidentiality of childcare-related materials through targeted in camera orders.

The overarching lesson is procedural discipline: plaintiffs who issue but do not serve within time must be ready to evidence circumstances that are genuinely beyond the ordinary, and to demonstrate prompt, documented efforts to progress the case. Absent that, renewal will be refused without any resort to prejudice balancing. For sensitive claims rooted in childhood abuse and state care, the decision underscores a hard truth: substantive gravity cannot substitute for procedural compliance, and the “special circumstances” threshold will be rigorously applied.

Key Takeaways

“Special circumstances” is a strict, threshold requirement for post-lapse renewal; without it, no prejudice balancing arises.
Solicitor inadvertence or misunderstanding of the rules will rarely qualify as “special circumstances.”
Stress from concurrent criminal proceedings, without corroborating medical evidence showing incapacity to instruct, will not typically satisfy the test.
Expert reports justify delay only if reasonably necessary to responsibly maintain the claim and pursued with evident expedition.
Targeted in camera orders can be made to protect childcare-related confidentiality, but are confined to necessity and do not automatically apply to entire proceedings.