Rajauskiene v Swords Barbers LTD & Anor (Approved)

Factual and Procedural Background

The Plaintiff alleges that she sustained injuries on or about 5 March 2017 at her then place of work when her finger became trapped while attempting to pull a door closed. The Plaintiff initiated correspondence with the first named Defendant, a company, in July 2018. The Defendant's insurers acknowledged receipt and commenced investigations but did not comment on liability. The Plaintiff made a Personal Injuries Assessment Board (PIAB) application in October 2018, which was processed but did not result in settlement. The company changed its registered address multiple times between January and April 2019.

A Personal Injuries Summons was issued on 9 July 2019. Attempts to serve the Defendants by registered post at the company’s former registered address were unsuccessful, with letters returned unclaimed. Personal service efforts in early 2020 were thwarted by COVID-19 restrictions, resulting in delays. The Defendant’s insurers closed their file in April 2020, considering the proceedings statute barred. The Plaintiff applied ex parte in May 2021 to renew the summons, and an order renewing the summons was made on 28 July 2021. The Defendant subsequently applied to set aside this renewal, which is the subject of the present judgment.

Legal Issues Presented

1. Whether the order renewing the Personal Injuries Summons should be set aside pursuant to Order 8, Rule 2, Rules of the Superior Courts.
2. Whether the Plaintiff’s solicitor’s inadvertence and delay, coupled with the impact of COVID-19, constitute "special circumstances" justifying an extension of time to serve the summons.
3. How to balance the interests of justice and the prejudice to both parties in deciding whether to renew the summons.

Arguments of the Parties

Appellant's Arguments (Defendants)

• The Defendants have suffered prejudice due to delay in locating and interviewing witnesses to the alleged incident.
• There was a lack of communication from the Plaintiff’s solicitors for approximately three years, save for a minor correspondence concerning the Plaintiff’s maiden name.
• The Defendants are prejudiced in assessing negligence related to the premises as they no longer occupy the building and the incident occurred over five years ago.
• The Plaintiff failed to inform the Defendants’ insurers properly regarding the issuance of proceedings or request a nomination of solicitors, exacerbating delay and prejudice.
• The Defendants submit that the Plaintiff’s solicitor’s inadvertence should not constitute special circumstances justifying renewal.

Appellee's Arguments (Plaintiff)

• The Plaintiff’s solicitor admitted inadvertence in serving the summons by registered post instead of personal service, attributed to the absence of her legal secretary due to maternity leave.
• Upon discovering the failure in service, immediate steps were taken to effect personal service, which were interrupted by COVID-19 restrictions.
• The delay was further impacted by upheaval in the Plaintiff’s solicitor’s office caused by the pandemic and reduced staffing.
• The Defendants’ insurers were notified of the claim as early as August 2018 and investigated the matter, indicating the Defendants were on notice.
• The Defendants have not demonstrated specific prejudice sufficient to outweigh the Plaintiff’s risk of being statute barred if the summons is not renewed.
• The Defendants delayed in bringing the application to set aside the renewal, which factors into the balancing of interests.
• If renewal is refused, the Plaintiff’s only recourse may be a difficult claim for professional negligence against her solicitors.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework under Order 8, Rule 4, which requires "special circumstances" to justify an extension of time to serve a summons. The court examined relevant case law, emphasizing the need to balance the interests of justice and the potential prejudice to both parties.

The Plaintiff’s solicitor admitted inadvertence in serving the summons by registered post rather than personal service, explained by staffing issues during maternity leave. Upon discovery, immediate efforts were made to serve personally, but these were interrupted by COVID-19 restrictions.

Despite COVID-19 challenges, the court noted a significant delay in applying for renewal after lockdown began, though the solicitor cited reduced staffing as a factor. The court acknowledged the prejudice to the Plaintiff if renewal was refused, as the claim would become statute barred, leaving only a difficult professional negligence claim against the solicitor.

The Defendants claimed prejudice due to delay affecting witness availability and ability to assess negligence, but the court found these claims inadequately substantiated, noting the Defendants had been on notice since 2018 and their insurers had investigated the claim until 2020.

The court also considered the Defendants’ delay in bringing the application to set aside the renewal, which was made some months after the Plaintiff’s ex parte application and service of the renewal order.

Balancing all factors, the court concluded that the prejudice to the Plaintiff outweighed the Defendants’ asserted prejudice. The court found the solicitor’s inadvertence and COVID-19 related disruptions, combined with the overall circumstances, constituted special circumstances justifying the renewal.

Holding and Implications

The court REFUSED the Defendants’ application to set aside the order renewing the Personal Injuries Summons.

This decision means the Plaintiff may proceed with her personal injury claim despite delays in service. No new precedent was established; the ruling applies the established balancing test for renewal of summons under Order 8, emphasizing the importance of considering all circumstances, including solicitor inadvertence and pandemic-related disruptions, in assessing special circumstances.