High Court refuses renewal of plenary summons due to lack of special circumstances justifying four-year delay.

THE HIGH COURT

[2025] IEHC 526

Record Number 2020/4925P

S.W.

Plaintiff

-and-

HEALTH SERVICE EXECUTIVE

Defendant

JUDGMENT of Ms Justice Nessa Cahill delivered on 3 October 2025

Overview

1. The Plaintiff issued these proceedings on 8 July 2020 for the purpose of seeking declaratory relief and damages against the Health Service Executive (“the HSE”) for alleged failures to vindicate the Plaintiff’s rights under the Constitution and under the European Convention for the protection of Human Rights and Fundamental Freedoms (“the ECHR”) and for allegedly failing to protect the Plaintiff contrary to the Childcare Act 1991 and the Childcare Act 2001.

2. The plenary summons was not served within the 12-month period required by the Rules of the Superior Courts (“the RSC”) and the Plaintiff accordingly brought this motion seeking leave to serve the summons under Order 8, Rules 1(3) and 1(4). The motion is grounded on the affidavit of the Plaintiff’s solicitor, Mr Sean Acton, which was sworn on 13 January 2025. A replying affidavit was sworn by Michael O’Rourke on behalf of the HSE on 13 February 2025.

3. The issue addressed in this judgment is whether an order should be made for the renewal the summons under Order 8, Rule 1 of the RSC. This decision hinges on whether there are “special circumstances which justify an extension” under Order 8, rule 1(4).

4. Having considered the information and evidence presented, I have reached the conclusion that none of the reasons given for the failure to serve the summons within 12 months of its issue, or for the delay since then, amount to “special circumstances”. This is a regrettable outcome but it is the only decision that I consider to be available on the evidence before me.

5. In this judgment, I address the following topics:

- In camera application

- Relevant facts

- Application to renew: general principles

- “Special circumstances”

▪ Mistake, inadvertence ▪ Impact of the criminal trial ▪ Medical report

- Interests of justice

- Conclusion

In Camera Application

6. At the outset of the hearing of the motion, the HSE raised the necessity for the application to be heard in camera as the Plaintiff had exhibited and proposed to rely on material that arose from childcare proceedings which were conducted in camera in the District Court (subject to section 31 of the Child Care Act 1991). The Plaintiff’s counsel then formally made an application for the matter to be heard in camera, to which the Defendant consented. The parties cited several legislative provisions and authorities, including section 45(1)(c) Courts (Supplemental Provisions) Act 1961, section 27 of the Civil Law (Miscellaneous Provisions)

Act 2008, Gilchrist v. Sunday Newspapers [2017] 2 IR 284, and Re PM, SM v. SL [2022] IEHC

449. In particular, the Plaintiff relied upon the judgment of O’Donnell J. (as he then was) in Gilchrist (at [45]):

“(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing...”

7. In this matter, I was not satisfied that the statutory provisions cited by the Plaintiff provided a legislative basis for the application to be dealt with in camera. However, I was and am satisfied from reviewing the papers (including the draft statement of claim) that these proceedings and this application raise issues of an acutely sensitive nature related to the Plaintiff’s childhood.

They are also closely connected to District Court childcare proceedings which were conducted in camera. Indeed, the HSE had a particular concern that documents from those childcare proceedings were relied upon in this application. It is plainly important that the protection against disclosure afforded to that material in the District Court should not be lessened or undermined by these proceedings.

8. Indeed, in a related context (concerning whether the protection against disclosure of childcare material survives the death of a child) in HSE v. McAnaspie [2012] 1 IR 548, Birmingham J.

referred to section 31(1) of the Child Care Act 1991 which provides (and then provided in identical terms):

“No matter likely to lead members of the public to identify a child who is or has been the subject of proceedings under Part III , IV or VI shall be published in a written publication available to the public or be broadcast.”

9. This provision was interpreted as follows: “The prohibition is in relation to matters identifying a child/person who has been the subject of proceedings. The fact that an individual reaches the age of eighteen years, marries or dies does not rewrite history and does not mean that they, as a child, were not subject to care proceedings” ([16]).

10. This confirms that the Plaintiff should not be identified as having previously been the subject of childcare proceedings, no matter what his age (subject to the power conferred on the court by section 31(2) to dispense with that prohibition “if satisfied that it is appropriate to do so in the interests of the child”). The protection against disclosure therefore subsists regardless of the Plaintiff’s age.

11. On the question of how to protect such material against disclosure in subsequent High Court proceedings (as arises here), an analogy may be drawn here with SM v. SL. There, a mother of a deceased adult who was seeking liberty to apply for letters of administration pursuant to section 27(4) of the Succession Act 1965, argued that the application should be heard in camera.

It was contended that the application related to previously concluded in camera family law proceedings and was essentially matrimonial. Butler J. did not grant the order sought for several reasons, including that the application being made was not matrimonial in nature and the applicant was not a party to the previous, concluded matrimonial proceedings. The fact that the surviving spouse to the marriage was not seeking for the matter to be heard in camera and there were no children of the marriage were also factors in the Court’s decision that there was not a sufficiently pressing risk to a constitutionally protected right to family life or privacy to direct the matter be heard other than in public.

12. Butler J. noted that the High Court has the power to receive material that was produced in earlier in camera proceedings in the District or Circuit Court, but granted an order that, insofar as the High Court proceedings concerned such material, it was to be heard in camera. It is interesting to note the observation that, “[g]iven that the evidence before the court on this application is largely, if not exclusively, drawn from the family law proceedings between the spouses before the death of the deceased, for all practical purposes this may have the resulting de facto effect of the application being heard in camera.” ([35]).

13. It was nonetheless an important principle that an order was not warranted or made for the entire proceedings in SM v. SL to be heard in camera.

14. This case is different as the Plaintiff is a person to whom the childcare proceedings relate and the facts of these proceedings are closely connected to the facts of those District Court proceedings. The objectives of these proceedings and the childcare proceedings are certainly different, but the sensitivities sought to be protected are closely similar and both concern the conditions of the Plaintiff’s childhood.

15. It is also of relevance that this application has a close connection to concluded criminal proceedings which (I was informed) were conducted subject to reporting restrictions. For these reasons, I determined that this was an exceptional case in which it was necessary to exercise the inherent jurisdiction of the Court to direct the matter to be heard in camera. In making this

decision, I was and am also mindful of the need to protect the private lives of persons such as the Plaintiff pursuant to Article 6(1) of the European Convention on Human Rights, as referenced in Gilchrist (at [23]) and SM v. SL (at [36]). While the Plaintiff is no longer a minor, I am satisfied that this application and these proceedings are entirely concerned with his childhood and do concern the “affairs of children,” a category expressly referenced by the Supreme Court in Gilchrist as one which may warrant the exclusion of the press or the public pursuant to the ECHR.

16. In addition to directing this application to be heard in camera, I also endeavour to balance the interests of the Plaintiff and the interests of public administration of justice, by refraining from including in this judgment any details or information which may identify the Plaintiff or disclose factual material that is not necessary for the determination of the motion before me.

17. Given the decision that is made in this judgment, it is not necessary or appropriate for me to consider the application of the in camera rule to any other aspect of these proceedings.

However, for the avoidance of doubt, I wish to make clear that my decision to hear this application in camera is made solely for the purpose, and on the basis, of the application that was before me, which includes documents detailing aspects of the Plaintiff’s childhood. In the event that the Plaintiff ultimately seeks to advance these proceedings – or other proceedings – and wishes for them (or any part of them) to be heard in camera, that application will have to be made to the appropriate court at that time.

Relevant facts

18. The proceedings are based on physical and sexual abuse, neglect, and deprivation which the Plaintiff suffered while a child in the care of his uncle and his uncle’s spouse. The Plaintiff was born on 18 July 1992 and the abuse in question occurred between 2001 and 2006. It is claimed that the Plaintiff was under the review of the relevant health boards and subject to care orders and that the relevant health boards (now the HSE) knew or ought to have known of the abuse suffered and failed in their duty to protect the Plaintiff, resulting in severe personal, physical and psychological harm to the Plaintiff.

19. It is part of the relevant context of this application that the Plaintiff made a complaint to An Garda Siochana on 6 December 2018 related to these events and a lengthy criminal trial took place in the Central Criminal Court in 2023.

20. The explanation given in the affidavit of Mr Acton for the failure to serve the proceedings was that Mr Acton himself thought the proceedings had been served by letter dated 16 July 2020 and he “operated on that assumption from 2020 to 2023”.

21. The most significant letter was sent by Mr Acton on 16 July 2020. In that letter, the nature of the Plaintiff’s claim was set out and it concludes that, if no admission of liability was received within 14 days “we have instructions to issue High Court proceedings forthwith against you without further notice”. It is abundantly clear from that letter that it did not purport to serve any issued proceedings on the HSE.

22. The response from the HSE dated 17 July 2020 acknowledged receipt of the letter of 16 July 2020 and advised that “the correspondence has been referred to our insurance manager” and provides contact details for “any further queries”.

23. The next communication is a letter dated 28 April 2023 sent by Mr Acton to the HSE, attaching a copy of the letter of 16 July 2020. Mr Acton states,

“You should note that High Court proceedings have issued in this matter. It may be necessary for us to make an application to renew the summons and that will be attended to forthwith”.

24. The HSE responded confirming that the matter had been forwarded to the State Claims Agency.

The State Claims Agency wrote on 15 May 2023 requesting a copy of the High Court proceedings.

25. By email sent on 17 May 2023, Mr Acton states,

“we enclose herewith a certified copy of the Summons issued in the High Court some time ago. As disclosed previously we will need to make an application to renew the Summons in due course. In the interim you might revert to us with your clients consent to that application in all of the circumstances of this case.”

26. That email refers to the criminal trial which was then ongoing.

27. At that juncture, Mr Acton was aware that an application to renew the summons was required.

It is not clear when he became aware of the need to make that application, but it is clear that, by 28 April 2023, he knew it needed to be done.

28. However, not having received a reply to the email of 17 May 2023, Mr Acton wrote a further letter dated 28 September 2023 in which he states,

“a plenary summons was served on the Defendants in this case directly on the 16th July, 2020. It was acknowledged by the HSE by letter dated the 19th of July 2020…”

29. That letter continues, “We previously advised that we believed that we would have to make an application to renew the Summons. However, that is not the case. It was served. We certainly will have to serve a Notice of Intention to proceed in due course. However, at this stage you should nominate solicitors to accept service of all of the documents in this matter.

Unless we hear from you within 14 days we intend to serve a Notice to Proceed directly on the HSE again and thereafter serve them with a Statement of Claim.”

30. Solicitors were then nominated by the HSE. On 11 October 2023, Mr Acton wrote to those solicitors (Hayes Solicitors) enclosing a copy of the summons and stating,

“You should note that this summons was served on the Defendants directly on the 16th of July 2020. It was acknowledged subsequently by the HSE in a letter dated the 19 th of July….”.

31. He requested “[y]ou might please enter an appearance urgently…”

32. I pause here to observe that I have seen no factual basis for the statement in the letter of 28 September 2023, repeated in the letter of 11 October 2023, that the proceedings had been served. This assertion is also at odds with the language of the 16 July 2020 letter itself and with the letters sent to the HSE on 28 April 2023 and17 May 2023.

33. Hayes Solicitors responded on 24 October 2023 outlining the relevant correspondence to date (specifically the letters of 16 July 2020 and 28 April 2023) and requesting that “if you maintain that the Plenary Summons was served directly on our client on 16 July 2020 please revert with proof of service on that date.”

34. By letter dated 6 November 2023, Mr Acton responded as follows:

“the writer has now reviewed the file and the following is the position:-

On the 16th of July 2020 we wrote a letter of claim to the HSE which was acknowledged by Cliona Troy by letter dated the 17th of July 2020. It appears that the Summons was not served on that date despite the fact that we do have a separate letter indicating it was to be served. However, we do not have the registered slip and can only presume I withheld that letter at the time. In any event we must obviously now make an application to renew the summons…”

35. These facts are not properly explained and the HSE emphasises – understandably – that a copy of the separate, unsent letter is not exhibited to the affidavit of Mr Acton.

36. Hayes Solicitors responded on 8 November 2023 noting the intention to issue the application to renew the summons and requesting

“please ensure to put us on notice of your application [to renew the summons] in order to afford us the opportunity to address the Court in respect of that application”.

37. Mr Acton states in his affidavit that he was “not in a position to establish to the satisfaction of the Defendant’s representative that the proceedings were served in July, 2020” and therefore had no alternative but to apply to renew the summons.

38. The Plaintiff ultimately issued an ex parte application to renew the summons on 4 October 2024 and, when this was listed in the High Court on 11 November 2024, the High Court Judge (O’Donnell J.) directed that it should be made on notice to the HSE. This motion then issued on 17 January 2025.

39. The following conclusions may be drawn:

First, there is no evidence that the summons was served in July 2020. The letter of 16 July 2020 makes no reference to a plenary summons and, on the contrary, states “we have instructions to issue High Court proceedings forthwith against you without further notice”.

This was ultimately accepted in correspondence.

Second, insofar it is said that there was a mistaken belief the proceedings were served, there is no apparent factual basis for this view to have been formed. I do not attach weight to a reference in correspondence to an unissued, draft letter which was not exhibited to Mr Acton’s affidavit.

Third, in any event, this explanation is not available beyond April 2023, when the need to renew the summons was first acknowledged. It must be assumed that Mr Acton had reviewed the file and formed the - correct - view that it was necessary to renew the summons before he contacted the HSE in April 2023. The correspondence sent after that (including the erroneous statements in the letters of 28 September and 11 October 2023) does not alter this.

Fourth, there was no communication to the HSE in relation to the proceedings between 16 July 2020 and 28 April 2023 and no step was taken to progress the proceedings (other than a request for the preparation of a psychiatric report in October 2020, that was not followed up on until July 2023).

Fifth, despite recognising the need to apply for leave to serve the summons in April 2023, an ex parte application was not issued until October 2024, some 18 months later (and over three years after the expiry of the summons).

40. Having made these factual findings, I will summarise the legal principles that govern this application and then apply them to the facts as so found.

Application to renew: general principles

41. Order 8, Rule 1 provides

“(1) No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons.

(2) The Master on an application made under sub-rule (1), if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for three months from the date of such renewal inclusive.

(3) After the expiration of twelve months, and notwithstanding that an order may have been made under sub-rule (2), application to extend time for leave to renew the summons shall be made to the Court.

(4) The Court on an application under sub-rule (3) may order a renewal of the original or concurrent summons for three months from the date of such renewal inclusive where satisfied that there are special circumstances which justify an extension, such circumstances to be stated in the order.”

42. The original formulation of Order 8, rule 1 was that “[t]he Court or the Master as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months…”

43. The test for renewal of an unserved summons was therefore elevated from “reasonable efforts”

or “other good reason” to a test of “special circumstances” once the summons is unserved for a 12-month period. Both parties relied on the judgment of the Court of Appeal in Murphy v.

HSE [2021] IECA 3 as a guide to the interpretation of that language. It must be noted immediately that there are important differences between that case and the present one. The most pertinent is that the claim in Murphy v. HSE was a professional negligence claim which necessitated the preparation of an expert report. The chronology of that case was also quite different to this one: in Murphy v. HSE, the renewal of the summons was sought five months after its expiry and there was evidence of ongoing engagement to obtain medical reports throughout that period. Having regard to these factors, the time for serving the summons was extended in Murphy v. HSE.

44. One issue that loomed large in Murphy v. HSE was whether Order 8 embodies a two-step test of (a) “special circumstances” to obtain an extension of time to apply for leave to renew a summons and (b) “good reason” to renew a summons, or, in the alternative, constitutes a single unitary test. It is not necessary to address the divergences between judgments of the High Court on this question that pre-dated (and were resolved in) Murphy v. HSE. The salient point is that, in Murphy v. HSE, Haughton J. (Whelan and Noonan JJ. concurring) firmly concluded that,

“The legislature has clearly applied a single test to this substantive application – the court must be ‘satisfied that there are special circumstances which justify an extension’. There is no reference to a second test, or any requirement to satisfy the court of ‘good reason’.” ([62])

45. Accordingly, the single key question on this application is whether there are “special circumstances which justify an extension”. Haughton J. set out the following useful guidance to assist in answering this question (there being no such guidance in Order 8, Rule 1(4) itself):

“70. Firstly, whether special circumstances arise must be decided on the facts of a particular case, and it would be unwise to lay down any hard and fast rule.

71. Secondly it is generally accepted that it is a higher test than that of “good reason”. This would seem to follow from the fact that the application to the Master is made before the summons lapses, and O. 8 does not require the Master to state the “good reason” in the order.

72. It also follows from the use of the word “special”. While this does not raise the bar to “extraordinary”, it nonetheless suggests that some fact or circumstance that is beyond the ordinary or the usual needs to be present.”

46. The Court also emphasised the need to consider the “interests of justice” when deciding whether there are special circumstances which “justify” the extension of time sought. Haughton J.

underlined that any general or specific prejudice or hardship that may be imposed on either party by the grant or refusal of the order should be weighed as an integral part of the assessment of whether there are “special circumstances” which justify extending time to serve the summons ([74], [78]). Haughton J. referred to the possibility that a court may decide not to renew a summons despite the existence of what appear to be “special circumstances” if there are sufficiently strong countervailing reasons to outweigh those circumstances in the balance of justice.

47. While Haughton J. rejected the separation of “interests of justice” into a second limb or test, it is critically important to understand that there must be a finding that there are “special circumstances” before a summons can be renewed. If that finding is not made, the Order 8 analysis ends.

48. I note that it was suggested by counsel for the HSE that there is some uncertainty as regards whether a two-tier test does exist or whether prejudice forms part of the initial assessment of the existence of “special circumstances”. I do not see that there is any such ambiguity. Murphy v. HSE established that there is no two-tier test of “special circumstances” followed by the application of a test of “good reason” (as had been discussed in the preceding cases). However, there is no suggestion in the judgment of the Court of Appeal in Murphy v. HSE that time can be extended despite the absence of any “special circumstances”. Such an outcome would be contrary to the plain language of Order 8, Rule 1(4).

49. The overarching test remains that there must be “special circumstances” before there is any scope for assessing the balance of justice: if there are “special circumstances”, a court can then proceed to weigh all relevant factors, including the potential prejudice to both sides, and the nature of the circumstances relied upon, in a single balancing exercise, in order to decide whether the circumstances in question do justify the order sought. There is no balance to conduct if there are no “special circumstances”.

50. This was addressed by the Court of Appeal (Noonan J., Faherty and Binchy JJ. concurring) in Nolan v. Board of Management of St Marys Diocesan School [2022] IECA 10: “The prerequisite is that there is a special circumstance which, once established, requires the court to consider whether that circumstance justifies renewal” ([21]). Noonan J. found unequivocally that considerations of prejudice have no role in a decision as to whether there are “special circumstances” and rejected the contention that prejudice must be weighed from the outset as putting “the cart before the horse” and an approach that “would lead to a result diametrically opposed to the clear intent of the new rule” ([26]).

51. This was applied by Barr J. in Murphy v. Depuy Ireland Unlimited Company [2023] IEHC 220 (at [76]): “The court is satisfied that the correct approach to be taken is to identify the special circumstances, and move to consider the special circumstances in light of the balance of justice between the parties, as one point of analysis.”

52. The Court of Appeal conclusively confirmed the correctness of the interpretation just outlined in Power v. CJSC Indigo Tadjikistan [2024] IECA 47. There, Allen J. (Pilkington and Butler JJ. concurring) endorsed and adopted the description in the High Court judgment that establishing “special circumstances” is a “gateway requirement” for the renewal of an expired summons, which must be satisfied before any question of prejudice arises (([100], [101])). The outcome of the appeal in that case also illustrates the hurdle that must be met to demonstrate “special circumstances” and that mistakes by legal advisors are not, of themselves, sufficient:

“A misconception or misunderstanding as to the requirements for valid service which is plainly attributable to a failure to read the Rules of the Superior Courts cannot properly be characterised as a special circumstance which could justify the renewal of a summons” ([184], per Allen J.).

“Special Circumstances”

53. In this case, the Plaintiff must demonstrate “special circumstances” to explain both the failure to serve the summons before its expiry on 8 July 2021 and the delay since then.

54. The “special circumstances” asserted on behalf of the Plaintiff are that his solicitor was of the mistaken belief that the summons had been served and held this belief until 2023. Two additional reasons are given for the proceedings having been “in abeyance”. These are that there was an ongoing criminal prosecution related to the same facts, the Plaintiff was consumed by those proceedings and his solicitor did not want to cause him stress while they were ongoing.

It is also contended that there was relevant delay in obtaining an expert medical report. The relevant law and facts related to each of these points will be addressed to ascertain whether “special circumstances” have been shown to exist.

Mistake, inadvertence

55. The primary explanation for the failure to serve these proceedings within the 12-month period fixed by the RSC or at any time prior to 2023 is that there was a misunderstanding and a mistake on the part of the Plaintiff’s solicitor.

56. Similar arguments have been attempted – and almost universally rejected – in previous cases.

There was some specific important guidance in the judgment of Haughton J. in Murphy v. HSE which is directly relevant to the application in this case:

“77. At the level of principle a question also arises as to whether inadvertence on the part of a plaintiff or their solicitors can ever amount to or be relied upon as a special circumstance. As far as a plaintiff is concerned this is very fact dependant and it is probably not helpful to speculate in a vacuum. As far as legal advisors are concerned in my view inadvertence or inattention, for example in effecting service of the summons, will rarely constitute “special circumstances”. Legal advisors must be taken to be aware of the twelve month time limit for service of the original summons, and the consequences of allowing it to lapse. Peart J., in the context of “good reason”, in Moynihan v Dairygold Co-operative Society Limited [2006] IEHC 318, said –

“38…This is an opportunity to give a timely warning to practitioners that proper attention must be given to the question of service of proceedings after issue, especially where there is a likelihood that after expiration of one year from the date of issue, the Statute will have expired.”

If inadvertence of this nature would not reach the threshold of “good reason” it is even more unlikely to amount to “special circumstance”.”

57. Similar findings rejecting mistake or inadvertence as an excuse for failing to serve summons have been made in several other cases, leading to Barr J. in Nolan v. Trustees of Bridge United AFC [2021] IEHC 335 to find,

“The court is satisfied that inadvertence on the part of a solicitor to the expiry of the period within which to serve a summons, cannot be seen as being a special circumstance which justifies the renewal of the summons. The authorities are quite clear that inadvertence on the part of a solicitor will not suffice in this regard:

see Moynihan v. Dairy Gold Co-Op Society Limited (paras. 38 – 40); Downes v. TLC Nursing Home Limited (paras. 48 – 50) and Murphy v. HSE (para. 77)” ([61]).

58. The legal position is unambiguous: it is only in rare cases that a solicitor’s mistake, misapprehension or inadvertence could possibly constitute “special circumstances” for the purposes of Order 8. To reach that threshold, it seems likely that some unusual, unpredictable facts, outside the control of the legal advisor must be shown (Barr J. in Nolan v. Trustees of Bridge United AFC at [63] cites the example of a solicitor suffering a serious accident or a fire or other calamity at his office, leading to the failure to serve).

59. Here, there is a simple bare assertion of oversight with no unusual factors or out of the ordinary events which explain the omission to serve the summons. The only point attempted in correspondence is an assertion that there was a second draft letter, but this does not advance the application.

60. On the basis of the authorities interpreting the requirements of Order 8, Rule 1(4) (including judgments of the Court of Appeal), I simply cannot find that the mistaken belief by the Plaintiff’s solicitor that the proceedings had been served constitutes a “special circumstance”.

The case advanced falls far short of the requisite threshold.

61. Two other reasons are given by Mr Acton for the proceedings having been in “abeyance”. I will consider these points on their merits, but there is an obvious tension between them and the overarching assertion of a mistaken belief the proceedings had been served.

Impact of the criminal trial

62. There was a long-running criminal prosecution related to the abuse and neglect of the Plaintiff as a child, which culminated in a criminal trial at which the Plaintiff gave evidence and confronted his abusers. Mr Acton states that the criminal proceedings consumed the Plaintiff to the extent that it prevented him progressing these proceedings and he was “not prepared to add to his stress during the period of the criminal process”.

63. Mr Acton states in his affidavit that “upon the conclusion of the criminal proceedings and the conviction of the persons charged therein it was determined to move this case on”. His affidavit exhibits the correspondence (outlined above), which includes an email dated 17 May 2023 in which Mr Acton states “we understand that at present the matter is proceeding before the Central Criminal Court…it is literally proceeding as we speak”.

64. Mr Acton’s position is that the case has “unusual and special circumstances” and that, were it not for the criminal proceedings, “it would have become apparent that there was an issue regarding the service of the proceedings”.

65. In Nolan v. Board of Management of St Marys Diocesan School, a similar justification for the delay in serving the summons was advanced, with the solicitor referring to the desire to insulate his client from stress. There was no medical evidence to substantiate the asserted stress. This attempted justification was firmly rejected. Noonan J. emphasised that medical evidence demonstrating an inability to give instructions during the period concerned would be required to substantiate such an excuse ([34]) and that a bare assertion of stress was insufficient. It was also emphatically found that litigants cannot choose to issue proceedings and then assert they could not pursue it “until such time as they feel emotionally equipped to do so” ([33]). Indeed, the Court of Appeal was deeply sceptical of any reliance on the stress of litigation as a “special circumstance” for the purpose of Order 8, Rule 1(4): “I cannot… conceive that the stress of litigation, save perhaps in the rarest of cases, could ever amount to a special circumstance within the meaning of O. 8” ([31]).

66. Noonan J. concluded that the contention that the solicitor “wished to protect his client from stress, no matter how well motivated, cannot be viewed as a special circumstance for the purposes of O. 8, r. 1(4).” ([35]). The clarity and firmness of this conclusion is striking.

67. What is also striking is how closely similar this aspect of Nolan v. Board of Management of St Marys Diocesan School is to the application before me. While each case must of course be decided on its facts, the facts presented to me are sparse and amount to no more than the same bare assertion advanced in Nolan v. Board of Management of St Marys Diocesan School. I can see no basis for deviating from the decision in that case on this specific net point. Quite apart from Nolan, I would not be minded to accept as a justification an unsubstantiated assertion that Mr Acton did not serve the proceedings owing to a desire to protect the Plaintiff from stress for several reasons.

68. First, as counsel for the HSE points out, service of the summons or pursuit of the HSE for failing to enter an appearance are steps that do not obviously require engagement with the Plaintiff. Second, Mr Acton believed at all times that the proceedings had been served so instructions must have been given for that to be done and it is not clear what further engagement was required. Third, the correspondence in fact re-commenced in May 2023, when the trial was still underway and the Plaintiff must have been the most consumed he had been over the preceding three year period. Finally, it must also be recalled that the Plaintiff made the complaint to An Garda Siochana in December 2018, so that criminal process was in train when the Plaintiff gave instructions for the issue and service of the proceedings in July 2020.

69. I do not for an instant doubt or underestimate the extent of the stress suffered by the Plaintiff during the criminal proceedings, or the emotional toll the trial must have had on him. However, this application is concerned only with the reasons why the summons was not served, and the evidence before me does not indicate that the impact of the criminal trial was in fact the reason for the failure to serve the proceedings within the initial 12-month period or the failure to issue a motion seeking leave to serve the summons until October 2024. The ongoing criminal process or its undoubted grave impact on the Plaintiff simply do not explain these delays.

70. Similarly, while counsel for the Plaintiff referred in general terms to the sensitive nature of the proceedings and the fragility and vulnerability of the Plaintiff, there is regrettably no demonstration on the evidence before me as to how these matters could explain the delays in service that are the crux of this application. It is a sad fact the legal proceedings involving traumatic events cannot be characterised as unusual and Order 8, Rule 1 does not allow for any category of cases to be treated differently owing to the sensitive and damaging facts that underlie them. It is of course possible that specific evidence could be adduced to demonstrate that a plaintiff’s medical condition rendered it unusually difficult to obtain instructions and that such specific instructions were required to serve proceedings, but clear and qualified evidence to that effect would be required. This is plain from the judgment of the Court of Appeal in Nolan v. Board of Management of St Marys Diocesan School (at [34]). There is no such evidence here.

71. It has not been demonstrated that the impact of the criminal trial, the undoubtedly traumatic events that gave rise to those proceedings, or the vulnerability of the Plaintiff, constitute “special circumstances” which in fact explain the delay in serving the plenary summons in this matter. This is compounded by the fact that the Plaintiff’s solicitor himself states that it was his oversight that led to the proceedings not being served prior to 2023.

Medical report

72. Mr Acton states in his affidavit that “considerable difficulty” was experienced in attempting to obtain a medical report from Dr. Narayanan Subramanian, the Plaintiff’s treating psychiatrist.

73. The correspondence exhibited consists of one letter dated 9 October 2020 from Dr Subramanian in which he nominates a fee for the preparation of a psychiatric report and requests relevant documentation. There is no response to that letter until 5 July 2023, when Sheehan & Co. (Mr Acton’s firm) sent a cheque to Dr Subramanian and requested him to furnish the report “as soon as possible.” The lapse of time from October 2020 was explained in that letter on the basis of “grave difficulty in getting instructions from our client”. Reference is made to the criminal proceedings having concluded. There is then an exchange of correspondence between Sheehan & Co. and Dr Subramanian between 5 July 2023 and 15 April 2024.

74. The response of the HSE, as addressed in the affidavit of Mr O’Rourke, is that no such report was required to advance the proceedings and the documentation does not support any reliance on this as a factor.

75. Clarke J. (as he then was) decided in Moloney v Lacy Building and Civil Engineering Limited [2010] 4 IR 417 that the absence of an expert report could be a good reason for not serving a plenary summons but only if the expert report was “reasonably necessary in order to justify the decision to responsibly maintain the proceedings in the first place” and if “appropriate expedition” was used in attempting to procure a report.

76. Haughton J. in Murphy v. HSE similarly noted the need to show both expedition and the necessity for the report: “it is important to emphasise the need to move with expedition, if not alacrity, in seeking and obtaining the expert medical opinion that is reasonably required to advise on and prosecute the claim...” ([93])

77. Neither of the requirements of necessity or expedition are met here. There was no step taken to obtain a report from Dr Subramanian between October 2020 and July 2023. The assertion of “considerable difficulty” in obtaining the report is difficult to understand. Further, there is no necessity to obtain such a report for the issue or service of these proceedings (by contrast with professional negligence claims) and no report has been placed before me to demonstrate how it warranted the delay or justifies the order now sought. By contrast with Murphy v. HSE and other cases in which this question of medical evidence was weighed, there is no suggestion that these proceedings could not have been served without a psychiatric report.

78. In short, it cannot be said that the psychiatric report of Dr Subramanian was “reasonably necessary” here or that there was expedition in seeking or obtaining it. This is simply not a tenable basis to advance this application and falls significantly short of the threshold of “special circumstances”.

Interests of Justice

79. Given the clear finding that there are no “special circumstances”, there is no place for any assessment of the interests of justice in this application. The law on this point has already been set out.

80. Even if there was scope to consider the question of prejudice, the Plaintiff has not shown that the claim would be rendered statute-barred, or that some other particular prejudice would be suffered, as a result of the non-renewal of the summons. The question of limitation periods is frequently accepted as a relevant factor in applications of this nature: see Brereton v The Governors of the National Maternity Hospital [2020] IEHC 172. However, the HSE’s position is that the proceedings were statute-barred as of July 2012 (two years after the Plaintiff attained the age of majority) and this was not convincingly answered by the Plaintiff. There was only a general assertion that the proceedings would become barred if not renewed, but this assertion fell far short of meeting the onus the Plaintiff bears on this application. Consequently, the Plaintiff has failed to demonstrate significant specific prejudice would result from the nonrenewal of the summons. This would have been a material factor against the grant of the order sought (if the question of prejudice was relevant).

81. In terms of prejudice to the HSE, the position of the HSE is that the renewal of the summons would oblige the HSE to investigate and defend a claim related to events that occurred 20 years previously and that this is not a case based on documents, but would rather hinge on oral evidence and recollections. The Plaintiff emphasises that the HSE was aware of the risk of a claim since July 2020 and that the HSE has been involved in providing documentation for the criminal prosecution. It is said that these matters weaken any assertion of prejudice to the HSE and this must be weighed as a relevant factor. While the HSE disputed these points, I accept the Plaintiff’s position that there was notice of the potential claim and a nexus between the criminal trial and these proceedings such as to dilute any potential prejudice that could have been caused by the passage of time.

82. Nonetheless, given how far short of the threshold of “special circumstances” this application falls, the failure to demonstrate specific prejudice to the Plaintiff by the non-renewal of the summons, and the extent of the delay, this would not be sufficient to justify the order sought.

83. The length of delay has frequently been accepted to be a relevant factor: see Brereton v.

National Maternity Hospital (in which the delay being only two and a half months outside the 12-month window was emphasised). To put the timescale here in context: the application for leave to extend time was issued in October 2024, over four years after the issue of the plenary summons. This compares unfavourably to other cases in which applications for leave to renew were refused, such as Altan Management (Galway) Limited v. Taylor Architects Ltd. [2021] IEHC 218 in which a period of two years and two months from the expiry of the 12-month period was found by Heslin J. to be at “the extreme end”. Here, there was a delay of three years from the expiry of the summons before the first motion issued.

84. In the circumstances of this case, even if it was necessary to balance the prejudice to the parties (which it is not), this would not favour the Plaintiff’s application.

Conclusions

85. It has not been established that there are “special circumstances” which explain or account for the failure to serve the plenary summons within the 12-month period fixed by the RSC or for the delay in applying for leave to serve the summons for over three years after that period expired. These delays are simply not properly explained, much less accounted for by circumstances which are unusual or out-of-the-ordinary.

86. An order extending time cannot therefore be justified within the meaning of Order 8, Rule 1(4).

Accordingly, any assessment of the prejudice to the parties, or of whether it is in the “interests of justice” to make the order sought, do not properly arise and I refuse the order sought by this motion.

87. As the HSE has been successful in its opposition to the motion, I am of the provisional view that it is appropriate to make an award of costs in its favour and against the Plaintiff.

88. However, I will list the matter before me at 10.30am on 28 October 2025 for the purpose of hearing any submissions which the parties may wish to make on the question of costs, and I will then make final orders on this application.