Summary of High Court Ruling (Anonymized)

Factual and Procedural Background

This is an application by the Plaintiff for an order under Order 8, rule 1(3) of the Rules of the Superior Courts seeking renewal of a personal injuries summons that was issued on 21 July 2023 and which expired on 20 July 2024. The summons alleges negligence against the Defendant, a consultant gynaecologist, arising from an alleged failure to detect a vaginal mesh erosion during a gynaecological examination in September 2017.

The Plaintiff served a pre-action letter on 9 August 2023. The Defendant's insurers/representatives (Company A) and subsequent solicitors (Company B) indicated by correspondence in late August and September 2023 that Company B had authority to accept service. The Plaintiff's solicitors, however, did not effect service of the issued summons on the Defendant (or Company B) until 6 August 2024 — just after the one-year service period had expired. The Defendant (through Company B) asserted that the claim was statute barred and applied to set aside the service. The Plaintiff applied to renew the expired summons on 5 November 2024. Both the Plaintiff's renewal application and the Defendant's application to set aside service were heard together by Judge Ferriter.

Legal Issues Presented

1. Whether "special circumstances" exist within the meaning of Order 8, rule 1(4) RSC to permit renewal of an expired personal injuries summons.
2. If special circumstances are established, whether renewal would be in the interests of justice (including balancing prejudice to the Defendant against prejudice to the Plaintiff).
3. Whether any estoppel arises from prior correspondence from the Defendant's representatives or solicitors that would preclude the Defendant from relying on non‑service within the 12‑month period.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relied on the existence of a detailed pre-action letter served on 9 August 2023 as evidence the Defendant knew proceedings were intended, and that this fact supported renewal.
• The Plaintiff argued that the Plaintiff's solicitors had a genuine belief throughout (after Company B was nominated) that the summons had been served on Company B, and that repeated correspondence requesting a defence between April and August 2024 supported that belief.
• The Plaintiff submitted that the Defendant could not show any specific prejudice if the summons were renewed and that refusal would likely render the claim statute barred, so renewal would be in the interests of justice.
• The Plaintiff relied on comparative authority (a pre‑Murphy High Court decision) where special circumstances were found when there was solicitor inadvertence together with pre‑expiry communications to the defendant.

Defendant's Arguments

• The Defendant contended that the failure to serve within the 12‑month period was mere solicitor inadvertence and that no exceptional or unusual circumstances were advanced to elevate that inadvertence to the level of "special circumstances" under the rule.
• The Defendant argued that no estoppel arises because Company B had repeatedly made clear that they had not been served and had not entered an appearance; they did not represent that they would accept an out‑of‑time service.
• The Defendant also contended that the Plaintiff delayed unduly in bringing the renewal application.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the statutory threshold: under Order 8, rule 1(4) RSC a summons may be renewed only where the court is satisfied that there are "special circumstances" which justify extension and that such circumstances be stated in the order.

The court reviewed the authorities and emphasised that the leading appellate authority (Case A v Company C) requires that "special" denotes circumstances beyond the ordinary; the court must decide whether special circumstances exist on the particular facts and then consider whether renewal is in the interests of justice. Subsequent appellate and High Court authorities were cited to clarify that establishing special circumstances is a gateway requirement; only after that gateway is passed should prejudice be considered.

The court then analysed the material facts and the affidavit evidence from the Plaintiff's solicitor. The solicitor's account was that he had delayed serving the issued summons because he awaited the pre‑action letter process and, after being asked by Company A not to contact the Defendant directly, understood that Company B would accept service. He averred that he honestly and mistakenly believed the summons had been served by an assistant and that the continued absence of a defence was consistent with the Defendant's advisers investigating liability.

The court addressed the estoppel argument and rejected it. The court found that Company B's correspondence confirming authority to accept service was standard and did not amount to a representation that they would accept late service or that they had already been served. Company B had not accessed the Plaintiff's records nor entered an appearance. When Company B was reminded in April 2024 about a defence, they promptly replied that they had not been served, thereby negating any possible representation that would give rise to estoppel.

The court found two discrete periods of solicitor inadvertence:

1. From 21 September 2023 (when Company B confirmed authority to accept service) until 23 April 2024 — during which the Plaintiff's solicitor asserts he believed the summons had been served; and
2. From 23 April 2024 (when Company B told the Plaintiff's solicitor they had not been served) until the expiry of the summons on 20 July 2024 — during which time the Plaintiff's solicitor still failed to ensure service and relied on an assumption that an assistant had served the summons.

For each period the court examined whether exceptional or unusual facts were advanced to explain the failures. The court concluded that no adequate explanation was offered. The solicitor did not describe the firm's internal systems for effecting and recording service, nor any internal or external calamity, staff absence, illness, or other unusual event which would explain the breakdown. The court emphasised that a genuine belief that service had occurred does not transform ordinary inadvertence into a special circumstance. The second period (post‑23 April 2024), when the solicitor was plainly on notice that there had been no service, was described as "textbook mere inadvertence" compounding the earlier inadvertence.

While the court acknowledged mitigating facts in favour of the Plaintiff — e.g., the existence of a pre‑action letter, the short interval between expiry and actual service, and that the renewal application was brought within a reasonable time — it concluded these did not, without more, satisfy the high threshold set by the authorities. The court stated that to hold otherwise would effectively lower the statutory threshold and render the service time limit redundant.

Holding and Implications

RENEWAL REFUSED

Holding: The court refused the Plaintiff's application to renew the expired personal injuries summons because the Plaintiff did not establish "special circumstances" within the meaning of Order 8, rule 1(4) RSC.

Implications:

• Direct effect: The renewal application was refused, which means the expired summons could not be renewed and the present proceedings (based on that issued summons) were at an end unless the Plaintiff relies on the precautionary new summons issued on 11 November 2024 (a matter outside the renewal application decision).
• Legal principle: The decision reiterates that mere solicitor inadvertence, even when coupled with pre‑action correspondence or a genuine mistaken belief that a summons was served, will not ordinarily constitute the "special circumstances" required to renew an expired summons. Exceptional or unusual circumstances that explain and contextualise the inadvertence are ordinarily required.
• Precedential effect: The court applied established appellate and High Court authorities and did not purport to create new law. The ruling follows the existing line that treating ordinary solicitor error as "special" would undermine the statutory timetable for service.

Judge: Judge Ferriter

Decision delivered: 5 November 2025