Ward v Harmony Row Financial Services LTD & Anor (Approved)

Factual and Procedural Background

The plenary summons was issued by the Plaintiff on 21st January 2014, with the period for service expiring on 20th January 2015. On 21st October 2019, the Plaintiff obtained an order renewing the summons for a further three months. The Defendants brought an application under Order 8, rule 2 of the Rules of the Superior Courts seeking to set aside this renewal.

Between 2004 and 2008, the second Defendant acted as administrator of the Plaintiff's private pension fund. In October 2007, the first Defendant was appointed as adviser to the fund and in January 2008 produced a detailed report advising on the Plaintiff's financial circumstances and recommending certain investments to fund his retirement. The Plaintiff borrowed money and invested, based on this advice, but incurred heavy losses when these investments matured around 2013.

The Plaintiff's claim broadly alleges negligence, breach of contract, and breach of duty by the Defendants in advising investments unsuitable to his low/medium risk profile. He further claims he was unaware of the extent of the connection between the Defendants and that negligent misrepresentations were made to induce him to invest, resulting in severe financial loss.

None of these substantive matters were before the judge when the summons was renewed in October 2019, as the statement of claim was only served on the Defendants in January 2021.

A chronology of key procedural dates includes the initial issuance of the summons in January 2014, expiry of the service period in January 2015, renewal application in October 2019, service on the second Defendant in January 2020, and affidavits filed by parties in 2020 and 2021.

Legal Issues Presented

1. Whether there were special circumstances justifying the renewal of the plenary summons after a delay of over four years from the expiry of the service period.
2. Whether the Plaintiff was required to obtain expert evidence prior to service of the summons in this case involving alleged negligent financial advice.
3. The extent to which the Defendants were prejudiced by the delay in service and renewal of the summons.
4. The proper application of Order 8, rules 1 and 2 of the Rules of the Superior Courts regarding renewal and setting aside of summons renewals.

Arguments of the Parties

Defendants' Arguments

• The case, while commercial and involving negligence allegations, was not overly complex and did not require expert evidence before service of the summons.
• The Plaintiff did not provide evidence that expert advice was necessary before serving the summons or that efforts were made to obtain such evidence prior to renewal application.
• There was no justification for the prolonged delay of nearly five years in serving the summons, which was extreme and prejudicial.
• The Defendants have suffered prejudice in defending the case due to the delay, including loss of witnesses and fading memories.
• The fact that the Plaintiff’s action would be statute barred if the summons was not renewed does not constitute special circumstances.
• The Defendants were not aware of the specific claim due to lack of pre-litigation correspondence or service of the summons.

Plaintiff's Arguments

• The renewal hearing was de novo and the Plaintiff must show special circumstances, which do not require an extraordinary standard but must be beyond the ordinary.
• The case is complex due to the nature of financial investments and advice, requiring expert financial evidence before serving the summons.
• The litigation is part of a group of approximately thirty similar cases, with efforts to establish a "pathfinder" or test case, justifying delay in service until that issue was resolved.
• The Defendants had intimate knowledge of the substance of the claims given the similarity to other cases, so were not prejudiced by delay.
• The case will primarily turn on documentary evidence, reducing prejudice concerns.
• The Plaintiff would suffer significant prejudice if the summons were not renewed as the claim would be statute barred.
• The illness of the Plaintiff’s former solicitor should be taken into account as a special circumstance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing procedural preliminaries, ruling that the Plaintiff could not introduce new grounds for special circumstances at the inter partes hearing beyond those stated in the ex parte order. The phrase "complex background" in the ex parte order was interpreted broadly to include the complexity of the cause of action, the need for expert evidence, the multiplicity of similar cases, and the illness of the Plaintiff’s former solicitor.

The court confirmed the burden of proof framework: at the ex parte stage, the Plaintiff must persuade the court of special circumstances; at the inter partes stage, the Defendants must show why the renewal should be set aside.

The court emphasized the extreme length of delay—over five years from issue and nearly five years from expiry of service period—which was at the far end of delay spectrum and not lightly tolerated.

On the issue of expert evidence, the court found the Plaintiff’s assertion of needing expert reports before service was unsupported by evidence of efforts to obtain such reports and was legally unnecessary because this was not a professional negligence action against a professional individual, but against companies for negligent advice. Even if expert evidence was necessary, the delay of over five years was not justified by vague assertions.

The court rejected the argument that the existence of multiple similar cases and the pursuit of a "pathfinder" case justified delay in service. Each case stood on its own facts, and the Plaintiff’s solicitors had served summonses in other cases without difficulty.

The illness of the Plaintiff’s former solicitor was not supported by evidence of incapacity sufficient to justify delay, nor was there evidence that others could not have served the summons.

The court was not persuaded that the Defendants had intimate knowledge of the Plaintiff’s claim; there was no pre-litigation correspondence, and the summons had not been served.

The court accepted that the Defendants would suffer prejudice if the summons were renewed, given the long delay and the likelihood that witnesses would have to recall events from over a decade prior, diminishing the quality of evidence and defense.

Finally, the court reiterated that the fact the Plaintiff’s claim would be statute barred if the summons was not renewed did not constitute special circumstances justifying renewal.

Holding and Implications

The court SET ASIDE the renewal of the plenary summons dated 21st October 2019.

The direct consequence is that the Plaintiff’s action against the Defendants cannot proceed on the basis of the renewed summons, effectively ending the Plaintiff’s opportunity to pursue the claim in these proceedings. The court expressed sympathy for the Plaintiff but emphasized that the significant delay and lack of special circumstances justified the decision. No new legal precedent was established; the ruling applied well-established principles concerning delay, renewal of summons, and prejudice.