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Drake v South Infirmary Victoria University Hospital CLG & Anor (Approved)
Factual and Procedural Background
The Plaintiff alleges that in September 2017 she was prescribed methotrexate while pregnant, suffered a miscarriage and subsequently gave birth to a daughter with serious brain injury. The Plaintiff sues Company A (the hospital where the prescription was given) and Company B (the pharmacy that dispensed the drug) for negligence, claiming loss arising from the miscarriage and psychiatric injury linked to the daughter's condition.
A personal injury summons was issued on 27 August 2019 on a protective basis (without a liability expert report). The summons expired in August 2020. On 9 December 2024 the High Court renewed the summons on the ground of special circumstances (difficulties in obtaining expert evidence and personnel difficulties in the Plaintiff's solicitor's office). The renewed summons was served on the defendants. Both defendants brought motions to set aside the renewal of the summons. The judgment was delivered electronically by Judge [Last Name] on 19 June 2026.
Legal Issues Presented
- Whether the renewal of the personal injury summons should be set aside because of inordinate delay between issuance (27 August 2019) and renewal (9 December 2024).
- Whether the special circumstances relied upon (awaiting expert medical reports, Covid-19 related restrictions, and solicitor's personnel/maternity-leave issues) justified deferring service and renewing the summons.
- Whether the interests of justice and prejudice to the defendants favour renewal or setting aside the renewal.
Arguments of the Parties
Defendants' Arguments
- The delay (more than five years from issue; over four years after expiry) was inordinate and unjustified.
- Reliance on Covid-19 and on a solicitor's maternity leave does not amount to the abnormal or unusual "special circumstances" required by the case law.
- The necessity of obtaining an expert report about the daughter's condition did not justify withholding service of the mother's summons indefinitely; expedition was required (citing Maloney, Murphy, SW).
- Renewal would prejudice the defendants because key oral evidence about what advice was given in 2017 would be difficult to obtain nearly a decade later.
Plaintiff's Arguments
- The case is complex and interconnected with the daughter's injuries; obtaining a causation report was necessary before properly pursuing the Plaintiff's claim.
- Covid-19 restrictions caused significant delay in obtaining records, scans and expert reports; the plaintiff's small two-person firm was further hampered by maternity leave of one partner.
- Company A had made an open admission of breach in relation to the initial prescription and miscarriage; Company B had been put on notice by a letter of claim dated 11 April 2019, so the defendants suffered no real prejudice from delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Power v CJS Indigo Tajikistan & Ors. [2025] IESC 55 | The Supreme Court rejected the two-step gateway test and held the correct approach is a single test asking whether there are special circumstances justifying renewal, having regard to all the circumstances. | The court applied this single-test approach in assessing whether the special circumstances put forward justified renewal on 9 December 2024. |
| Murphy v HSE [2021] IECA 3 | Endorsed the principle that awaiting a medical report can justify deferring service only where the report is necessary and reasonable expedition has been used to obtain it. | The court treated Murphy as endorsing Maloney's dicta and requiring necessity plus reasonable expedition where a report is relied upon to justify delay. |
| Maloney v Lacy Building and Civil Engineering Ltd [2010] 4 IR 417 | Awaiting an expert's report may validly justify not serving a summons if the report is necessary to responsibly maintain the proceedings and the delay in obtaining it is reasonable and met with appropriate expedition. | The court held that obtaining an expert causation report was necessary for the Plaintiff's case but found the solicitor did not obtain that report with the required expedition. |
| SW v HSE [2025] IEHC 526 | Reiterated that a plaintiff deferring service on grounds of awaiting a medical report must show the report was necessary and that reasonable expedition was used to procure it. | The court relied on SW to reinforce the requirement of necessity plus reasonable expedition and found those conditions were not satisfied here. |
| Brady v Byrne [2021] IEHC 778 | Covid-19, while beyond the ordinary, did not, per se, justify extended delay once the legal profession had adapted (by mid-2020); a particular beyond-ordinary circumstance must be identified. | The court found the Covid-19 excuse insufficient to justify the prolonged inaction after Q1 2021 and applied Brady to reject Covid as a general cover for multi-year inaction. |
Court's Reasoning and Analysis
The court accepted that the Plaintiff is vulnerable and that Company A admitted breach in relation to the initial prescription and miscarriage. The pivotal legal question was whether the Plaintiff's solicitor was justified in withholding service of the summons for over five years while awaiting expert evidence about causation of the daughter's brain injury.
The court applied the Supreme Court's single-test approach from Power and the line of authority in Maloney, Murphy and SW requiring that, where a plaintiff defers service because an expert report is necessary, the report must indeed be necessary to responsibly maintain the proceedings and must be procured with reasonable expedition.
Having reviewed the detailed chronology, the court accepted some delays were attributable to difficulty obtaining records and pandemic-related backlogs and to difficulty securing suitable experts. However, it found large unexplained gaps and an overall failure to obtain the necessary causation report within five years despite knowing in August 2019 that causation would be critical. The court rejected the sufficiency of Covid-19 and the solicitor partner's maternity leave as special circumstances justifying multi-year inaction, noting that maternity leave is a common business occurrence and Covid-19 could not be used as a general excuse once adaptation occurred.
The court also rejected the argument that Company A's admission of breach as to the miscarriage obviated the need to serve the summons, observing the admission did not cover the daughter's injuries and that a mere admission does not estop a defendant from objecting to renewal. Finally, the court found that the passage of time would cause the defendants significant prejudice in proving what advice or warnings were given in 2017.
Holding and Implications
Holding: The renewal of the personal injury summons dated 9 December 2024 is set aside; the motions of Company A and Company B to set aside renewal are granted.
Implications: The renewal is set aside and the relief sought by both defendants by their respective motions will be granted. Parties were given two weeks to file brief written submissions (not more than 1,000 words) on final orders and costs; the matter was listed for mention on 15 July 2026 to make final orders. No new legal precedent was established; the court applied existing authorities to the facts and determined that the Plaintiff's solicitor did not show the necessary expedition to justify the prolonged deferral of service.
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