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Broughan v Bon Secours Health System Company Ltd By Guarantee and Anor (Approved)
Factual and Procedural Background
The Plaintiff issued a Personal Injuries Summons on 10 February 2023 in relation to knee replacement surgery performed on 17 February 2021 at The Hospital, alleging a retained foreign object and associated physical and psychiatric injury. A letter of claim was sent on 26 January 2023. An expert orthopaedic report was obtained in June 2023. The Personal Injuries Summons expired on 9 February 2024 and was served on 13 February 2024 (i.e. after expiry). The Plaintiff sought a psychiatric report in January 2024; the psychiatric assessment occurred on 6 March 2025 and the psychiatric report was received on 10 April 2025. Particulars of negligence and particulars of injury were delivered on 8 July 2025. The Plaintiff applied ex parte to renew the summons; on 30 July 2025 the High Court (Judge Egan) ordered renewal on the basis of special circumstances. The Defendants issued a motion on 19 November 2025 under Order 8 Rule 2 seeking to set aside the 30 July 2025 order. Affidavits and written submissions were exchanged and a supplemental affidavit from the Plaintiff's solicitor was filed before the hearing. The court heard argument and delivered reasons for setting aside the renewal.
Legal Issues Presented
- Whether a plaintiff may lawfully await a further condition/prognosis expert report (here, a psychiatric report) before applying to renew an expired Personal Injuries Summons, i.e. whether awaiting that report can constitute "special circumstances" justifying renewal under Order 8 Rule 1(4).
- Whether, on the facts before the court at the time of the ex parte renewal application, the special circumstances relied upon were made out and whether the renewal order should be set aside under Order 8 Rule 2.
Arguments of the Parties
Plaintiff's Arguments
- The claim involved evolving clinical presentations including significant psychiatric sequelae; psychiatric evidence was necessary to plead causation and the nature and extent of injury.
- The summons was issued within the limitation period as a protective measure; the late service was inadvertent and the Plaintiff acted promptly once the psychiatric report was obtained.
- Difficulties in obtaining psychiatric opinion arose from matters outside the Plaintiff's control (consultant availability and waiting times); renewing the summons was therefore justified by special circumstances and the balance of justice.
- No specific evidence of prejudice to the Defendants was advanced; setting aside renewal would deprive the Plaintiff of any forum to pursue a serious claim (a "never event").
Defendants' Arguments
- The letter of claim and holding summons gave only minimal notice; particulars of negligence were not served until July 2025, more than two years after an orthopaedic report became available in June 2023.
- The orthopaedic report already obtained addressed liability and causation; it was not explained why psychiatric opinion had to be procured before renewal.
- The Plaintiff failed to demonstrate reasonable expedition in procuring the psychiatric report (long delays, no attempt to seek alternatives or to communicate delays), and inadvertence by solicitors will rarely constitute special circumstances.
- Renewal prejudices the Defendants by depriving them of the benefit of the statute of limitations and by impairing investigation and witness recollection.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Murphy v. Health Service Executive [2021] IECA 3 | Guidance on amended Order 8 Rule 1(4): inadvertence by legal advisors will rarely constitute special circumstances. | Relied on to support the proposition that solicitor inadvertence is unlikely to satisfy "special circumstances". |
| Power v. CJSC Indigo Tajikistan [2025] IESC 55 | Supreme Court articulation that the test under Order 8 Rule 1(4) is a single overall assessment whether special circumstances justify renewal (interests of justice). | Adopted as the correct formulation of the test for renewal (one overall assessment of special circumstances). |
| Rooney v. HSE [2022] IEHC 132 | Authority that direct witness evidence in surgical cases affects outcome; not everything recorded in medical records. | Applied to note that the Defendants may suffer prejudice by loss of witness recollection; court accepted real potential for such prejudice. |
| Hadnett v Joyce [2025] IEHC 599 | Refusal to renew where summons was served late due to solicitor inadvertence; such inadvertence was not special circumstances. | Used as a comparable authority to show courts' reluctance to treat inadvertence as special circumstances. |
| Maguire v. PSW Sales and Logistics Limited [2026] IEHC 81 | Inadvertence by solicitor did not justify renewal; delay attributable to plaintiff via agency; prejudice considered. | Relied on to illustrate recent stringent approach to renewal where delay arises from solicitor error and file-management issues. |
| Pisarski v. Kepak Cork Unlimited Company [2026] IEHC 94 | Refusal to renew where plaintiff's former solicitor failed to serve for long period; belief that case was being progressed not special circumstances. | Referenced as demonstrating that long delays and reliance on former solicitor's conduct will not typically found special circumstances. |
| Nolan v. Trustees of Bridge United AFC and Penturf Limited [2021] IEHC 335 | Set aside renewal where inadvertence by solicitor did not constitute special circumstances and renewal could not rely solely on unexpired limitation at time of renewal. | Relied on as further authority showing inadvertence is generally insufficient to justify renewal. |
Court's Reasoning and Analysis
The court analysed whether the psychiatric report was reasonably necessary to permit service or renewal and whether the Plaintiff's solicitors acted with appropriate expedition in procuring it. The applicable legal test is whether "special circumstances" justify an extension under Order 8 Rule 1(4), assessed as a single overall question in the interests of justice (Power v. CJSC Indigo Tajikistan). The court acknowledged that difficulty in procuring necessary expert reports can constitute special circumstances, but only where the report is genuinely required for the maintenance of the proceedings and reasonable expedition has been exercised in obtaining it.
The court examined the orthopaedic expert's draft report (obtained June 2023) and concluded it adequately addressed breach and causation in respect of the physical sequelae of the retained foreign body. On that basis the court held that it was not reasonably necessary to await a psychiatric condition/prognosis report before serving the proceedings or before applying to renew the summons. Even if the psychiatric report were regarded as necessary, the court found an unreasonable delay in procuring it: the orthopaedic report recommending psychiatric assessment was available in June 2023 but the first approach to the psychiatrist was not until January 2024 and follow-up only in October 2024, such that the period June 2023–October 2024 showed lack of reasonable expedition. The court also noted the plaintiff's solicitor failed to respond to multiple defence letters in 2024–early 2025 querying expiry and renewal. Taking these factors together, the court concluded the Plaintiff had not established the special circumstances relied upon at renewal.
Holding and Implications
RENEWAL SET ASIDE
Holding: The court set aside the High Court order of 30 July 2025 renewing the Personal Injuries Summons.
Implications: The direct effect is that the renewed summons is vacated and the Plaintiff's ability to proceed on that renewed summons is removed (with the likely consequence that the claim will be statute barred). The Defendants regain the benefit of limitation and associated procedural protections. The court applied existing authorities and principles rather than announcing a novel precedent.
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