High Court denies renewal of expired personal injury summons due to lack of special circumstances.

THE HIGH COURT

RECORD NO 2023/3617P

[2025] IEHC 599

BETWEEN

JACINTA HADNETT

PLAINTIFF

AND

MOYNA JOYCE

DEFENDANT

Judgment of Mr Justice Cian Ferriter delivered on 5th November 2025

The application

1. This is the plaintiff’s application for an order pursuant to order 8 rule 1(3) Rules of Superior Courts for an order renewing a personal injuries summons which was issued on 21 July 2023 and which expired on 20 July 2024.

2. For reasons which I will come to, the summons was not served until 6 August 2024, just outside the 12 month time period permitted for service of such a summons. The application to renew was issued on 5 November 2024 following correspondence in August and September 2024.

3. The personal injuries summons alleges negligence against the defendant, who is a consultant gynaecologist, in relation to a failure to detect an erosion of a vaginal mesh during the course of a gynaecological examination of the plaintiff in September 2017.

The Law

4. Pursuant to the provisions of order 8 rule 1(4) RSC a summons can only be renewed where the court is satisfied that there are “special circumstances” which justify an extension, such circumstances to be stated in the order.

5. The parties are agreed on the applicable legal principles. The leading authority is the Court of Appeal decision in Murphy v HSE [2021] IECA 3. In that judgment, Haughton J held that the use of the world “special” in the phrase “special circumstances”, while not raising the bar to extraordinary, nonetheless suggested that some fact or circumstance that is beyond the ordinary or the usual needs to be present (para 72). 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 (para 70).

Haughton J said that the court should consider whether it is in the interests of justice to renew the summons and this entails considering any general or specific prejudice or hardship alleged by a defendant and balancing that against the prejudice or hardship that may result for a plaintiff if renewal is refused (para 74).

6. The Court of Appeal (Noonan J) in Nolan v The Board of Management of Saint Mary's Diocesan School [2022] IECA 10 confirmed, arising from Murphy v HSE, that special circumstances and the justification for renewal fall to be considered together in the analysis of whether it is in the interest of justice to renew the summons (para 25); however Noonan J then went on to clarify that it must first be established that there are special circumstances before the question of prejudice (as part of the interests of justice) will be examined (para 26). Allen J in his Court of Appeal judgment in Power v CJSC Indigo Tajikistan [2024] IECA 47 approved the statement, in the judgment of the High Court (Egan J.) being considered in that appeal, 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 (para 100).

7. The authorities under the previous version of the rule, which was addressed to the question of whether there was “good reason” to renew a summons as opposed to the higher bar of “special circumstances”, generally took the view that inadvertence on the part of a solicitor in relation to service of a summons was not good reason to justify renewal. Haughton J took the opportunity in Murphy v HSE to specifically state (at para 77) that:

“at the level of principle a question 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 legal advisors are concerned 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 12 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”.

8. Barr J explained in Nolan v Trustees of Bridge United AFC [2021] IEHC 333 (at para 78) that “The reasons why mere inadvertence on the part of a solicitor will not suffice as a special circumstance are quite clear. Firstly, it is because mere inadvertence cannot be seen as being special, or out of the ordinary, such as is required to bring one within O.8, r.1(4). Secondly, if mere inadvertence was allowed as a special circumstance to justify renewal of a summons, that would effectively render the time limit provided for in the rules redundant.”

9. Barr J. went on to state (at para 79) that that is not to say that inadvertence can never be a special circumstance; it is possible that “where inadvertence was due to other circumstances that are in themselves special or unusual, in such circumstances the inadvertence might amount to ‘special circumstances’ justifying the renewal of the summons.” He gave as examples of circumstances which would justify such inadvertence “the fact that the plaintiff's solicitor may have been involved in a serious accident; or if a member of the plaintiff's family were involved in a serious accident either at home or abroad; or where the solicitor's office was subjected to some form of calamity, such as a fire or flood.” Subsequent to the Court of Appeal decision in Murphy v HSE, Barr J in Murphy v Depuy [2023] IEHC 220 re-iterated by reference to his judgment in Nolan v Trustees of Bridge United AFC that inadvertence that was due to other circumstances that are in themselves special or unusual, could amount to ‘special circumstances’ justifying the renewal of the summons.

10. These dicta were quoted with approval by Cahill J. in a recent judgement in SW v HSE [2025] IEHC 526 where she stated (at para 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 adviser must be shown”.

The material facts

11. The material facts are as follows.

12. The plaintiff attended the defendant on 13 September 2007 with a complaint of vaginal bleeding, abdominal pain and related complaints. The plaintiff’s problems persisted in the following three years and in September 2020 she was referred back to the defendant who in turn referred her to a consultant gynaecologist oncologist who diagnosed the plaintiff with mesh erosion. This consultant carried out corrective surgery in October 2021.

13. The plaintiff issued a personal injuries summons on 21 July 2023 alleging negligence against the defendant. The plaintiff’s solicitors sent a pre-action letter directly to the defendant on 9 August 2023 in which it was alleged that the defendant failed to diagnose a mesh erosion in 2017. This letter confirmed that the plaintiff’s solicitor had instructions to issue proceedings and that proceedings would be issued in the event the defendant intended to contest liability and failed to propose compensation.

14. The Medical Protection Society (MPS) wrote to the plaintiff’s solicitors on 25 August 2023, asking the plaintiff not to contact the defendant directly. By letter of 20 September 2023 the MPS noted that Carson McDowell solicitors in Dublin would have authority to accept service of any proceedings on behalf of the defendant. This was confirmed by a letter from Carson McDowell of 21 September 2023 in which they said that they had instructions to accept service or proceedings and asked the plaintiff’s solicitor to refrain from contacting the defendant directly.

15. Almost seven months later, on 10 April 2024, the plaintiff’s solicitor wrote to the defendant’s solicitor noting they had not received a defence and giving 21 days for delivery of a defence. A letter in similar terms was sent by the plaintiff’s solicitor to the defendant’s solicitor on 19 April 2024.

16. In an important letter in the context of this application, on 23 April 2024 the defendant’s solicitors wrote to the plaintiff’s solicitor in response to his letter of 10 April 2024 stating “we are not on record in this matter in circumstances where proceedings have not yet been served. We refer to our letter dated 21 September 2023 in this regard in which we confirm authority to accept service of proceedings.”

17. On 17 July 2024 the plaintiff’s solicitors sent a further 21 day warning letter seeking a defence.

18. The personal injuries summons which had issued on 21 July 2023 expired on 20 July 2024.

19. On 1 August 2024 the plaintiff’s solicitor sent an affidavit of verification in respect of the personal injuries summons to the defendant’s solicitor and warned of a motion for judgment in default of defence in the absence of receiving the defence within 28 days.

20. The defendant’s solicitors responded on the same date, 1 August 2024, referencing their letter of 21 September 2023 in which they had confirmed authority to accept proceedings and their letter of 23 April 2024 when they highlighted that they were not on record as proceedings had not yet been served. They noted that they had not been served with a personal injuries summons and had not entered an appearance.

21. On 6 August 2024 the plaintiff’s solicitors served the defendant’s solicitors with the original personal injuries summons. The defendant’s solicitors replied on 21 August 2024 saying that they would not accept service of the proceedings in circumstances where their summons had expired prior to service. The letter noted that the claim was now statute barred.

22. On 23 August 2024 the plaintiff’s solicitor responded by noting that it transpired that they had omitted to send the issued personal injuries summons which they said was “mere inadvertence” on their part in respect of which no issue had been raised by the defendant’s solicitors. This letter contended that the defendant was estopped from making a technical argument about service in the case in the circumstances.

23. Further correspondence was exchanged between the parties in late August and early September 2024.

24. The defendant issued an application on 25 September 2024 seeking an order setting aside the service on the defendant of the personal injury summons. The plaintiff’s solicitor sought to consult with counsel and ultimately an application to renew the summons was prepared and furnished to the solicitor’s town agents at the end of October 2024 who filed the application on 5 November 2024 with the return date in December 2024.

25. The plaintiff’s solicitor issued a further personal injury summons on 11 November 2024 as a precautionary measure.

26. Affidavits were sworn by the plaintiff’s solicitor and the defendants’ solicitor in respect of both the plaintiff’s application to renew the summons and the defendant’s application to have service of the summons set aside.

27. Both applications came before me for hearing on the same date. As it was not disputed that the personal injuries summons had expired prior to its service, it was agreed that the principal application I had to deal with was the plaintiff’s application to renew the summons on the basis that if I did not accede to that application, the proceedings were inevitably at an end in any event.

28. Accordingly this ruling deals with the plaintiff’s application to renew the summons.

29. Before summarising the parties’ submissions, and discussing the issues arising, I will set out the evidence advanced by the plaintiff’s solicitor in support of the plaintiff’s case as to “special circumstances”.

Affidavit evidence of the plaintiff’s solicitor

30. The affidavit evidence of the plaintiff’s solicitor explaining the circumstances of non service of the summons is as follows. In an affidavit filed on 6 November 2024 grounding the plaintiff’s application for an order renewing the summons, the plaintiff’s solicitor says that he held off serving the personal injury summons until such time as a letter of claim was served on the defendant; that letter of claim was served on 9 August 2023. He held off serving the summons directly on the defendant in circumstances where he was requested by the correspondence of 25 August 2023 from the MPS asking the plaintiff’s solicitors not to contact the defendant directly. As already noted Carson McDowell solicitors confirmed by letter of 21 September 2023 that they had instructions to accept service of proceedings on behalf of the defendant.

31. The plaintiff’s solicitor averred that he fully believed that the personal injury summons had in fact been served and thought that the reason for delay in delivery of a defence was because the defendant and her solicitors were investigating the liability position, which he says would be standard practice in medical negligence cases. He says be afforded the defendant a considerable period of time in which to investigate the allegations and negligence and to give the defendant’s legal advisors time to review the medical records.

32. As noted earlier, the plaintiff’s solicitor wrote to the defendant solicitors on 10 April 2024 noting that they had not received the defendant’s defence and giving 21 days for delivery of same. A letter of similar terms was sent on 19 April 2024. On 23 April 2024 the defendant solicitor’s wrote to the plaintiff solicitor in response to his letter of

10 April 2024 stating that they were not on record in the matter in circumstances where proceedings have not yet been served. The plaintiff’s solicitor avers that after receipt of this letter of 23April 2024 “he had assumed that the personal injury summons had been served by his assistant which would be the normal course of action where the defendant’s solicitor required service of a personal injury summons and had not yet entered an appearance on behalf of a defendant.”

33. In an affidavit of 27 January 2025, the plaintiff’s solicitor said that he at all times laboured under the mistaken and genuine belief that the personal injury summons had in fact been served on the defendant’s solicitors by an assistant in his office which explains the correspondence of 10 April 2024, 19 April 2024, 17 July 2024 and 1 August 2024 calling for the delivery of a defence. He says that upon receipt of the defendant's solicitor’s letter of 23 April 2024, he asked his assistant to serve the personal injury summons and that he “had assumed that that had been done and that we were simply waiting for the defendants to serve their defence.” He said that he was giving the defendant the appropriate time to complete their investigations into the liability position which he maintained was normal process in such proceedings.

The parties’ submissions

34. While counsel for the plaintiff accepted that mere inadvertence leading to non-service of the summons would not of itself amount to special circumstances within the rule, she argued that there are such special circumstances here given that the plaintiff was served a reasonably detailed pre action letter on 9 August 2023 indicating that proceedings would be served if the defendants did not accept liability; that the defendant knew from then on that the plaintiff intended to issue proceedings; that the plaintiff’s solicitor operated under a genuine belief at all times following the nomination by the defendant in September 2023 of solicitors to represent her that the defendant’s solicitors had been served with the summons; that this belief is supported by the correspondence sent by the plaintiff's solicitor between 10 April 2024 and 1

August 2024 calling for a defence; that he assumed that the passage of time without a defence was explained by the fact that the defendant was conducting its liability investigations in the ordinary course; that it would not be in the interests of justice to refuse a renewal in circumstances where the plaintiff's claim would likely become statute barred and where the defendant could not point to any prejudice in the of event that the summons was renewed. Counsel for the plaintiff submitted that the plaintiff issued her application to renewed the summons within 15 weeks of the expiry of the old summons which was reasonable given the intervention of the long vacation and extensive exchange of correspondence between the parties’ solicitors in August and September 2023.

35. Counsel for the defendant for his part contended that this is in truth was a case of lmere inadvertence by the plaintiff’s solicitors with nom, extenuating or unusual factors which would elevate the circumstances to the level of special circumstances;

that no question of an estoppel arose where the defendant solicitor’s made clear that they had not been served with the proceedings and that the plaintiff had in any event delayed unduly in bringing the application.

Discussion

36. The plaintiff contends that special circumstances arise in that the defendant is estopped from taking the “technical argument” in relation to the failure to serve the summons within 12 months in circumstances where the MPS and thereafter solicitors for the MPS indicated that the plaintiff was not to serve proceedings or contact the defendant directly but rather should serve proceedings on the defendant’s nominated solicitors and where the defendant’s solicitors knew that the intention at all times was to serve the proceedings and that the plaintiff’s solicitor’s correspondence made clear that they believed a summons had been served.

37. I do not see that any question of estoppel arises. The defendant’s solicitors wrote in the ordinary way confirming that they had authority to accept service of proceedings.

They entered no appearance, consistent with not having been served. They did not seek authority from the plaintiff to access the plaintiff’s medical records or otherwise take steps to advance defence of the proceedings in the absence of service of the summons. When they were sent a 21 day warning letter on 10 April 2024, some seven months after they had indicated that they had authority to accept service of the proceedings, they wrote back promptly on 23 April 2024 making it clear that they had not been served with any proceedings and confirming again that they had authority to accept service of the proceedings. Their correspondence confirming authority to accept service of proceedings was in entirely standard form. There is no question of the defendant’s solicitors representing to the plaintiff’s solicitor that they would not take any point in relation to service of the summons out of time or otherwise giving any misleading impression that they had been served with a summons when they had not. On the contrary, on receipt of the first communication from the plaintiff’s solicitor on 10 April 2024 since they had written in September 2023 confirming authority to accept service of proceedings, the defendant’s solicitors quite properly made it clear that they had not been served with proceedings and invited such service.

By the time the plaintiff’s solicitor sent a further 21 day warning letter looking for a defence on 17 July 2024, just a few days before expiry of the summons, the defendant’s solicitors had still not been served with a summons and they did not make any representation that they would accept service of the summons out of time. No estoppel arises.

38. The other special circumstance alleged by the plaintiff to arise is that this was not a case of mere inadvertence on the part of the plaintiff’s solicitor where the solicitor operated at all times during the currency of the summons from September 2023 onwards on the honest belief that the summons had been served and wrote to the defendant’s solicitors on a number of occasions requesting a defence, which correspondence was consistent with the maintenance of belief as to service of the summons; it is said that this coupled with the service of a pre-action letter which indicated a clear intention to serve proceedings, along with service of the summons a short period after expiry of the summons once the fact of non-service became clear, amounted to special circumstances justifying renewal.

39. Counsel for the plaintiff placed particular emphasis in this regard on the judgment of Hyland J in Brereton v The Governors of the National Maternity Hospital [2020] IEHC 172 where Hyland J. found special circumstances where there was solicitor inadvertence in failing to serve a summons within time in conjunction with other factors such as the solicitor’s intention to serve within time and the fact that the solicitor wrote to the defendant about the claim before the expiry of the 12 months, and in circumstances where there was no significant prejudice to the defendant in ordering renewal and where absent renewal the claim would be statute barred.

Counsel for the plaintiff submitted that the facts and circumstances in Brereton were very similar to the case before me and that I should reach a similar conclusion on special circumstances to that reached by Hyland J. in that case.

40. While the rationale for the changes to Order 8 rule 1(3) and (4) as explained by Hyland J in Brereton was endorsed by Haughton J in Murphy v HSE, Brereton on its facts was decided prior to Murphy and, as already noted, Haughton J in his judgment in Murphy made a point of emphasising that solicitor inadvertence would rarely be a special circumstance on its own sufficient to amount to special circumstances within the rule. As noted earlier, the authorities since Murphy make clear that some exceptional or unusual circumstances which explain and contextualise solicitor inadvertence would be required in order to establish special circumstances based on solicitor inadvertence within the rule.

41. Accordingly, in Murphy v Depuy [2023] IEHC 220, Barr J. took the view, where the plaintiff’s solicitor had inadvertently failed to serve the summons within time, that this was not due to “mere inadvertence” but was due to inadvertence caused by a “perfect storm” of factors that occurred both within the firm and externally in the country at the time including absence of staff on sick leave and for other reasons and difficulties encountered due to COVID and other illnesses.

42. In Rajauskiene v Swords Barbers Ltd and Steckys [2023] IEHC 249, Bolger J found special circumstances justifying an inadvertence on the part of the plaintiff’s solicitor in failing to serve a summons, in circumstances where the plaintiff’s solicitor had sought to serve the defendants by registered post and not ordinary post and where the mistake was explained by the absence of a legal secretary who was on maternity leave at the time. When the solicitor became aware that neither defendant had been served, she took immediate steps to arrange for personal service which efforts were frustrated by the onset of the COVID pandemic. Again, this case is notable for the existence of unusual or exceptional circumstances which explained and excused the solicitor’s inadvertence sufficiently for special circumstances within the rule to be established.

43. It seems to me that there were two periods of inadvertence on the part of the plaintiff’s solicitor here, neither of which has been explained or justified by reference to exceptional or unusual circumstances. The first period of inadvertence related to the period between receipt of correspondence on 21 September 2023 from the solicitors retained to act for the defendant, and receipt of the defendant’s solicitors letter of 23 April 2024. While I accept that the plaintiff’s solicitor genuinely operated under the belief that the summons had been served in this period, no special circumstances have been advanced to explain why the summons was not served in this period. The plaintiff’s solicitor does not explain the basis for his assumption that the summons had been served. He does not provide any explanation for the system for directing and recording service of summons in his office and why it broke down in this case. He does not outline any particular difficulties, internal or external to the office, which may have explained and excused the summons not being served in this period. The fact that he operated under a genuine belief as to service when the summons had not been served does not of itself provide a special circumstance; it was a belief stemming from mere inadvertence. No exceptional or unusual factor explaining or excusing the inadvertence has been advanced. While I accept that that his belief the summons had been served in the period up to early April explains the correspondence he sent on 10 and 19 April 2024 containing 21 day warning letters for delivery of a defence, I am not satisfied that special circumstances have been advanced to explain what objectively appears to be mere inadvertence on the plaintiff’s solicitors part in failing to serve the summons during this period.

44. The second period of inadvertence covers the period from 23 April 2024, when the defendant’s solicitors wrote to the plaintiff’s solicitor telling him that they had not been served with proceedings and confirming again that they had authority to accept service of proceedings, until the expiry of the summons on 20 July 2024. Despite the clear confirmation from the defendant’s solicitors on 23 April 2024 that they had not been served with any summons, the plaintiff’s solicitor still did not serve the summons. Again, the plaintiff’s solicitor does not provide any explanation that would amount to special circumstances justifying the failure to serve the summons in the period 23 April 2024 to the expiry of the summons on 20 July 2024, a period of some three months; it has to be recalled that he was now on clear notice of the fact that the summons had not been served. The plaintiff’s solicitor says that he asked his assistant to serve the summons after receipt of the defendant’s solicitor’s letter of 23 April 2024 and ‘assumed’ this had been done; no special or unusual circumstance explaining this second bout of inadvertence has been advanced. This would appear to be textbook mere inadvertence, compounding the previous inadvertence.

45. I am conscious of the fact that the defendant had been served with a pre-action letter, that the plaintiff clearly intended to issue proceedings within time, that the defendant was ultimately served within a short period after its expiry and that the renewal application was brought within a reasonable time period. However, I do not believe that these circumstances of themselves are sufficient to amount to special circumstances; to so find would be in essence to elevate the solicitor’s compound mere inadvertence in failing to serve the summons to the level of special circumstances contrary to the clear legal position set out in Murphy v HSE and in the authorities since.

46. In the circumstances, I cannot find that there are any “special circumstances” within the proper meaning of the rule.

47. If the plaintiff had established special circumstances, the interests of justice would have favoured renewal given that the defendant could not point to any specific prejudice which would have resulted from the summons being renewed and where the failure to renew the summons would likely result in the plaintiff’s claim becoming statute barred. However, the plaintiff unfortunately does not get through the gateway to that stage of the analysis as the plaintiff has not been able to make out sufficient special circumstances within the meaning of the rule.

48. For the reasons outlined above, I refuse to order renewal of the summons.