High Court sets aside renewal of originating summons due to failure to apply for renewal within reasonable time.

THE HIGH COURT Record No. 2015/546P [2025] IEHC 680

Between:

GERALDINE GALVIN

Plaintiff -and-

IMRAN SHARIF and DEPUY INTERNATIONAL LIMITED

Defendants

JUDGMENT of Mr Justice Cian Ferriter delivered 4 December 2025

Introduction

1. This is the second defendant's application to set aside renewal of an originating summons issued by the plaintiff on 23 January 2015. The summons was renewed on an ex parte basis by order of the High Court on 8 April 2024. The special circumstances recited in the renewal order were that “that the current solicitors on record for the plaintiff were endeavouring to resolve difficulties created by the former solicitors and the fact that it was discovered in June 2020 that the summons had not actually been served”.

2. The renewed summons was served on the second defendant on 10 June 2024. The summons was not served on the first defendant as the plaintiff is no longer pursuing any claim against the first defendant. The second defendant issued its set aside motion on 31 July 2024.

3. The relevant legal principles, which I shall come to shortly, are not in dispute. There is however significant dispute as to the application of those principles to the facts of the case.

4. It will immediately be seen that there was a gap of over 8 years between the lapse of the summons in January 2016 and the making of the renewal order in April 2024. This very lengthy gap arises in a set of circumstances which contain many unusual features.

Material Facts

5. The background to the proceedings is as follows. The plaintiff, who is now 70, underwent hip replacement surgery on 3 May 2005 at the age of 50. She was fitted with a DePuy ASR XL metal-on-metal hip implant. This device was the subject of a global recall in 2010. Clinical review and blood testing confirmed that she required revision surgery. She underwent such revision surgery on 24 January 2012. Both the original hip replacement and the revision surgery were carried out by the first defendant, who is since deceased.

6. In January 2012, the plaintiff engaged her first firm of solicitors in the matter (“her first solicitor”). The summons was issued by her first solicitor on 23 January 2015. In her proceedings, the plaintiff sues the second defendant for damages for negligence and breach of the Liability for Defective Products Act 1991 arising from the allegedly defective ASR hip replacement device implanted into her in May 2005.

7. DePuy has put in place an extensive hip recall reimbursement program for patients affected by the recall of the DePuy ARS hip replacements. General communications were issued in May and June 2015 on behalf of DePuy in relation to this reimbursement programme.

8. The plaintiff's claim is one of many hundreds that have been taken against the second defendant arising from allegedly defective hip replacement devices implanted in the early 2000s. These cases have been the subject of an ADR scheme and active case management by the High Court.

9. The second defendant fairly accepts that it first became aware of a potential claim by the plaintiff following the submission of a PIAB application on 21 January 2015. This was an application that was sent by the plaintiff's first solicitor without the plaintiff’s knowledge or authorisation. (A PIAB application was not in fact required for this type of case). It appears that the application named a non-existent DePuy entity. On receipt of the PIAB documentation, McCann FitzGerald wrote on 12 February 2015 to the plaintiff's first solicitor advising that they had authority to accept service of proceedings on behalf of the second defendant. No response was received from the plaintiff's first solicitor. This letter was not passed over to the plaintiff or to her subsequent solicitors and the plaintiff and her current solicitors only became aware of the unauthorised PIAB application on receipt of the defendant’s affidavit in the set aside application. (A reminder letter by way of follow up to the 12 February 2015 letter was sent by McCann Fitzgerald three and a half years later on 9 October 2018 with a further reminder letter sent on 5 June 2019. No responses were received from the plaintiff's first solicitor to this correspondence. The plaintiff herself was unaware of this correspondence.)

10. The summons issued on 23 January 2015 was not served on either defendant within the 12 month period allowed by the Rules of the Superior Courts (RSC) and therefore expired on 23 January 2016. It transpires that the summons was never served on either defendant. The plaintiff did not become aware of the failure to serve the summons until her second set of solicitors (“her second solicitor”) discovered that fact on a call with the first solicitor’s own solicitor in early June 2020. I will come to the circumstances of that discovery shortly.

11. The plaintiff’s current solicitors, her third set of solicitors in this matter, stated on affidavit that from papers on the first solicitor’s incomplete file, it seems that a without prejudice letter issued from McCann FitzGerald to the plaintiff’s first solicitors on 1 July 2015 enclosing a generic letter of 12 June 2015 from DePuy in relation to the hip recall reimbursement programme and a generic notice from Thorntons dated 29 May 2015, who were the administrators of the programme.

12. In what can only be described as a bizarre letter, the plaintiff’s first solicitor wrote to her on 18 August 2015 enclosing a copy of what was described as “a letter solicitors for DePuy forwarded to us for your attention.” In fact the enclosed letter was the general circular sent on 12 June 2015 setting out details of the DePuy reimbursement programme in generic terms. Unbeknownst to the plaintiff at this time, the first solicitor had not served the summons. However, instead of communicating that fact, the first solicitor not only gave the impression in this letter that the summons had been served but stated - entirely falsely - that the defendant had raised a notice for particulars and set out the particulars which the plaintiff was required to address, including matters such as details of out-of-pocket expenses, details of previous accidents or personal injuries, details of previous proceedings and who the plaintiff first attended when she suffered symptoms relating to the problematic hip implant. The letter concluded by stating “on receipt of your replies, we will draft replies to notice for particulars at which point the solicitors for DePuy should be in a position to file their defence.” There was no such notice for particulars. As the summons had not been served, solicitors for DePuy had not entered any appearance. The plaintiff was actively misled into believing her proceedings were progressing when they were not.

13. The plaintiff proceeded after the letter of 18 August 2015 on the basis that matters were progressing. She averred in an affidavit sworn in the set aside application that she was in regular contact with the first solicitor and was advised that her case was progressing; she was at no time made aware of any difficulties concerning her case.

The first solicitor told her that the delay in concluding the case was because the second defendant was dealing with hundreds of similar cases and was prioritising cases from older claimants.

14. In December 2018 she became aware through a newspaper article that her first solicitor was before the Law Society with allegations of misconduct. This prompted her to write to her first solicitor on 7 January 2019 asking for an update on her case “as a matter of urgency”. That letter complained of the fact that the plaintiff had not heard from her first solicitor despite sending a number of emails and trying in vain to contact her by telephone. She said she was extremely anxious as to how the case was progressing and sought a written account of the status of the proceedings. She then met with her first solicitor on 24 January 2019 and that meeting was followed up by a lengthy email from her first solicitor to the plaintiff. The email advanced as a reason for the delay in progressing the case the sheer volume of cases being handled in the High Court in relation to DePuy defective hip replacement claims. The email stated that “there is not currently a date for settlement meeting, but as advised, we would hope to have your case finalised and settled within 6-8 months of today's date”. The email concluded by noting the plaintiff's frustration at the length of time it was taking to move matters along and stating “it is unfortunate that there are so many similar cases still awaiting resolution, it would appear that the legal system of Ireland simply wasn't equipped to deal with an onslaught of these cases… we intend however to bring finality to your case in the first-half of this year”. This explanation was entirely false. Again, the first solicitor was actively and materially misleading the plaintiff.

15. Unsurprisingly, the plaintiff terminated her relations with her first solicitor and engaged her second solicitor who wrote to the first solicitor on 1 February 2019 enclosing a signed authorisation for a copy of the plaintiff’s file and asking for an account of fees to date. The second solicitor wrote repeatedly to the first solicitor in subsequent months seeking the plaintiff’s file but got no reply. The plaintiff was left with no option but to threaten a complaint to the Law Society in relation to the nonrelease of her file; this was done by a letter from the second solicitor to the first solicitor of 12 April 2019. The first solicitor responded by sending a fee note with a professional fee, entirely un-itemised, for over €15,000 excluding VAT. The total bill including VAT was over €23,000. The second solicitor replied promptly pointing out that it was not an appropriate bill given that it was completely lacking in detail and substance and that he was recommending a formal complaint to the Law Society on the plaintiff’s behalf.

16. A complaint was then lodged with the Law Society on 14 August 2019. The complaint related to the failure of the first solicitor to keep the plaintiff updated as to the progression of the claim, the failure to communicate with her properly and the failure to hand over her file to the new solicitor. Her second solicitor was not in a position to progress matters given the absence of any file and did not at this time know that the summons had not in fact been served. The plaintiff wrote to the Law Society a number of times expressing her concern in relation to the progress of the complaint and noted in a letter of 27 February 2020 to the Law Society that she was increasingly worried that there was a problem with the proceedings and wondered whether they had indeed been issued at all.

17. A significant development in events occurred on 5 June 2020. On that date, the second solicitor received a call from a separate solicitors firm acting on behalf of the first solicitor who said that he was dealing with various cases on behalf of the first solicitor and that having reviewed the plaintiff’s file he saw that the summons had issued in 2013 but had never been served and that nothing had been advanced on the file in the intervening period. He explained to the second solicitor that the first solicitor’s insurers had not been informed of the matter and he did not think that they would indemnify her. He suggested approaching McCann FitzGerald to see if a deal could be done on the plaintiff’s claim for less than the true value with the first solicitor then making up the difference, pointing out that it appeared she had no personal assets. From this it became clear that the proceedings had not been served and that the first solicitor was apparently not insured in respect of any potential claim arising from that failure and her general failure to progress the proceedings. The second solicitor informed the plaintiff of this by letter of 19 June 2020.

18. The second solicitor wrote to the first solicitor on 19 June 2020 stating that the plaintiff was extremely distressed to learn that the summons was not served on the defendants and calling for release of the plaintiff’s file without delay. A letter in similar terms was sent to the first solicitor on 29 June 2020. A letter from the Law Society complaints section to the first solicitor of 30 June 2020 referred to the committee's concern about the nondisclosure by the first solicitor, the failure to serve the proceedings, the issue by her of a bill notwithstanding the fact that the summons has not been served and the delay in notifying the professional indemnity insurers.

19. It seems that some miscellaneous correspondence from the plaintiff’s file was sent by the first solicitor to the second solicitor at the end of June 2020 but that the original issued summons had not been passed over nor had any medical records or opinions. The second solicitor complained on 29 June 2020 that this material was required as a matter of urgency.

20. In fairness to the Law Society, it is clear that the first solicitor dragged her heels in relation to the complaint process and the Law Society had to adjourn the complaint process from time to time during 2020 given the first solicitor’s lack of proper engagement.

21. The second solicitor, having been furnished on 19 August 2020 by the first solicitor’s solicitor with a copy of the summons as issued, wrote to McCann Fitzgerald on 26 August 2020 explaining that they had taken up the plaintiff’s file in the context of a complaint made by her against her first solicitors to the Law Society and stating that it was unclear from the first solicitors file as to whether the issued proceedings had been served. The letter also proposed a settlement meeting. McCann FitzGerald replied by letter of 1 September 2020 confirming that they had not been served with the summons.

22. On 22 October 2020, the second solicitor wrote to the Law Society saying that senior counsel had been instructed in the matter and advices were awaited to deal with a number of issues including the fact that the summons was not served and that the original summons would appear to have been lost by the first solicitor. On 10 November 2020, the second solicitor wrote to McCann FitzGerald noting the nonservice of the issued summons and stating that a difficulty therefore arose “vis-a-vis the continuity of proceedings”. The letter stated that the necessary application could be made for leave for extension of time for service “in particular circumstances”. Settlement discussions were sought.

23. On 23 November 2020 the Law Society wrote to the plaintiff confirming that they had upheld her complaint and had applied penalties to the first solicitor.

24. On 12 January 2021, the second solicitor wrote to McCann FitzGerald referencing correspondence of the previous November and stating that they would be required to make an appropriate application to the High Court. This was a clear reference to a summons renewal application.

25. By letter of 19 February 2021, McCann FitzGerald asked for a copy of documentation in relation to the plaintiff’s PIAB application and a legible copy of the summons. This was a reference to the PIAB application issued by the first solicitor without the plaintiff's authorisation, knowledge or input.

26. By letter of 6 May 2021, McCann FitzGerald confirmed that it did not wish to enter into settlement discussions at that point. (I might interpose in the chronology at this point to note that no further correspondence was received from the plaintiff or solicitors on her behalf by McCann FitzGerald in the period from 6 May 2021 until 23 April 2024 when McCann FitzGerald received a letter from the plaintiff's third solicitor enclosing a copy of the High Court's renewal order of 8 April 2024 and a copy of the personal injuries summons of 23 January 2015.)

27. On 18 May 2021, the second solicitor wrote to the first solicitor saying that their attempts to progress matters with the defendants and their insurers had not borne fruit and “we have been advised by two separate senior counsel that the nonservice of the issued PI summons in this matter will prove fatal to the proceedings”. The letter stated that in those circumstances the plaintiff had indicated her wish to sue the plaintiff in respect of the matter. The letter also noted the fact that it appeared the first solicitor had not informed her professional liability insurers which would create difficulties.

The letter proposed settlement terms and very reasonably noted that if the matter could be resolved for the requested sums, the second solicitor would not charge a professional fee. Accordingly, from the perspective of the plaintiff’s proceedings, it appears that the second solicitor on advice had concluded by May 2021 that an application to renew the summons was pointless and that the plaintiff was left with trying to sue the first solicitor in relation to the matter.

28. It appears that the plaintiff approached the third solicitor in early 2022. The third solicitor deposed that they were contacted by the plaintiff for advice and were furnished with an authority to take up a copy of her file from the second solicitor in July 2022. A series of reminders in relation to the file request were sent by the third solicitor to the second solicitor between August 2022 and March 2023 without response. Ultimately, the plaintiff collected her file from her second solicitor on 22 March 2023 and furnished a copy to the third solicitor. The third solicitor deposed that upon receipt of the plaintiff's file, it was clear that the file was incomplete and limited to documents which the second solicitor extracted from the first solicitor. The file lacked any medical records or opinions. The third solicitor formed the view that significant further information was required before she could advise the plaintiff whether she had sufficient grounds for making an application to renew her summons.

The third solicitor made arrangements to take up a copy of the plaintiff's medical records from both the Galway Clinic (where the initial surgery in 2005 and the revision surgery in 2012 was performed) and the Hermitage Medical Clinic where DePuy ASR recall bloods were performed in 2011 and 2012 at the request of the first defendant. The third solicitor received a copy of these two sets of medical records in September 2023 and October 2023, respectively. She emphasises that these were important in attributing knowledge of the plaintiff’s claim to the second defendant.

Time was then required to provide advice and to prepare the renewal application which was made in February 2024.

Caveat

29. I should note for completeness that the plaintiff has issued protective writs against both the first and second solicitors claiming negligence. In light of that fact, it is important to emphasise that I am not determining any issues of negligence as between the plaintiff and either her first or her second solicitor on this application. Insofar as I comment on and draw conclusions from the evidence presented by the plaintiff regarding the actions or inactions of those solicitors, I do so taking the plaintiff's evidence before me at face value and in circumstances where I do not have replying evidence from either the first solicitor or the second solicitor.

Applicable Legal Principles

30. Order 8 Rule 1 of the Rules of the Superior Courts provides for renewal of a summons, after the expiration of twelve months where the Court is satisfied that there are “special circumstances which justify an extension, such circumstances to be stated in the order”.

31. The Court has jurisdiction to set aside a renewal of a summons: Order 8(2) RSC. While a set aside application is dealt with by the Court on a de novo basis and does not constitute an appeal from the ex parte renewal order, the defendant on a set aside application must satisfy the Court either that the renewal decision was incorrect in principle or that the summons would not have been renewed had the Court been aware at the ex parte stage of additional facts now made known by the defendant: see e.g.

discussion in Downes v TLC Nursing Home [2020] IEHC 465 at paras 40 to 43.

32. It is accepted that broadly speaking no new facts have emerged on the set aside application which were not put before the court by the plaintiff's current solicitor, her third solicitor, at the ex parte stage. The defendant submits rather that the Judge who granted the ex parte renewal order erred in principle in finding special circumstances where it maintains there were none.

33. It is therefore necessary to briefly revisit the legal principles applying to renewal applications. The leading authority is the Court of Appeal decision in Murphy v HSE [2021] IECA 3 (“Murphy v HSE”). In his judgment in that case, 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).

34. 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 interests 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).

35. 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”.”

36. Barr J explained in Nolan v Trustees of Bridge United AFC [2021] IEHC 335 (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.”

37. The reason why the plaintiff is, in general terms, identified with the actions of his or her solicitor for the purposes of the rule is that to do otherwise would be to potentially subvert the object of the rule. The object of the rule is to ensure that parties to litigation prosecute their litigation with reasonable diligence. The onus is on the plaintiff’s solicitor as a competent professional to understand the service deadlines and to ensure that service happens within the stipulated time. The object of the rule would be subverted if a plaintiff could say that a solicitor acting on his or her behalf had made a mistake of which the plaintiff himself or herself is personally blameless; if that were the case a plaintiff could invariably rely on a solicitor’s mistake to make out special circumstances. Haughton J in Murphy v HSE essentially relied on this rationale in explaining that such inadvertence would rarely constitute special circumstances. A plaintiff is left then with a potential action in negligence against the solicitor who has failed them in serving the summons in time. While the authorities accept that this may be a far from perfect remedy, it is, at least in general terms, the necessary trade-off for the maintenance of the integrity of the rule and its object.

38. However, it is equally clear that there is no “hard and fast rule” as Haughton J put it in Murphy v HSE. Thus, the case law since Murphy v HSE, as explained by me in Hadnett v Joyce [2025] IEHC 599, accepts that special circumstances may be made out in relation to solicitor inadvertence if there are compelling, unusual circumstances which explain and justify the solicitor’s mistake such as where the solicitor was ill or where other unexpected external factors intervene to cause the mistake.

39. It is also clear from the authorities (see AIB v Boyd [2023] IECA 318 at para 65), and it follows in any event as a matter of logic and principle, that special circumstances must cover the whole or at least substantially the whole of the extension period and that different sets of special circumstances may be made out for different periods during the overall extension period. As noted by Butler J in AIB v Boyd (at para. 65)

the difficulty in reaching the threshold of special circumstances becomes commensurately greater the longer the period that a plaintiff is seeking to excuse. While different special circumstances may exist for different periods and such factors and circumstances may operate cumulatively, the periods of special circumstance justifying the plaintiff’s inaction must overlap at least to some extent.

Parties’ submissions

40. Counsel for the plaintiff, mindful of the obstacle presented by the jurisprudence to the effect that solicitor inadvertence or mistake is fixed with the plaintiff for the purposes of the summons renewal rule such that solicitor inadvertence would rarely be accepted as amounting to special circumstances within the rule, submitted that the egregious misconduct of the first solicitor was so outside the scope of the solicitor client relationship that the actions of the first solicitor could not be fixed with the plaintiff for the purposes of the renewal (or this set aside) application. In particular, the first solicitor actively and materially misled the plaintiff at all times. He submitted that the first solicitor's egregious misconduct infected the subsequent attempts to advance matters on the plaintiff's behalf, as the first solicitor unreasonably refused to hand over the complete file. Only certain selected material was handed over to the second solicitor late into the Law Society complaint process and essential documents and clinical records were not handed over. This left the second solicitor and thereafter the third solicitor in the special circumstances of trying to scramble to remedy the difficulties inevitably created by the first solicitor's misconduct. While accepting that there was significant passage of time between June 2020, when the fact of non-service of the summons owing to the first solicitor's misconduct was identified, and the bringing of the renewal application in February 2024, he submitted that special circumstances existed in the round and throughout sufficient to justify the renewal of the summons. He also submitted that the terms of the renewal order accurately reflected what had occurred i.e. that the current solicitors on record for the plaintiff were endeavouring to resolve difficulties created by the former solicitors and the fact that it was discovered in June 2020 that the summons had not actually been served.

41. Counsel for the plaintiff submitted, on the question of the interests of justice, that the fact that the plaintiff's claim would be statute barred in the event of setting aside the renewal of the summons significantly outweighed any potential prejudice to the second defendant who in truth was on notice of the plaintiff's claim from early 2015 and has extensive experience of dealing with claims for damages for defective hip replacements arising out of the recall programme such that there was no true prejudice to its defence of the case even at this remove or, at any rate, such prejudice as might arise did not trump the huge prejudice to the plaintiff in the event that she could not pursue her claim.

42. Counsel for the plaintiff emphasised that delay was a matter to be taken into account at the interests of justice stage and not at the special circumstances stage. As his client could get through the gateway of special circumstances, the interests of justice were achieved by leaving the renewal in place notwithstanding the lengthy lapse of time.

He noted that the volume of cases dealt with by the second defendant involved cases which are still going through the system and which by definition have involved extensive lapse of time without unfairly compromising the second defendant's ability to deal with them. He emphasised that delay was at a point which could still be taken in any defence filed by the second defendant should the renewal order be left standing.

43. Counsel for the second defendant, while accepting that the first solicitor had engaged in outlandish behaviour, emphasised that there was still no explanation as to why the summons was not served within twelve months. The necessary inference was that it was due to inadvertence and that the subsequent unjustifiable conduct of the first solicitor was in the context of a cover-up of this fact. He submitted that the core point of the jurisprudence which says that solicitor mistake or inadvertence cannot amount to special circumstances is that when the solicitor is culpable, no matter whether to a minor or significant degree, that is fixed on the plaintiff for the purposes of this rule, in order to uphold the rationale of the rule. Accordingly, there were no special circumstances advanced for any of the periods here.

44. He submitted that even accepting for the purposes of argument that special circumstances could be made out in the period to June 2020, an active decision was taken thereafter not to bring a renewal application. The problems with the lack of a complete solicitor's file did not and could not explain a failure to apply for a renewal, as evidenced by the fact that the third solicitor was able to bring such an application.

He emphasised that the application had to be viewed in the context of the extreme magnitude of the delay; the recent Supreme Court decision in Kirwan v Connors [2025] IESC 21 in the context of want of prosecution applications emphasises that a presumed dismissal of proceedings will arise if there has been five years of inactivity in taking a step in proceeding; that five-year period is greatly exceeded here. While accepting that the lapse of time is ultimately a matter going to the interests of justice, he submitted that the longer the period of delay, the greater the need to make out special circumstances. As of May 2021, there was a positive decision not to bring a renewal application. Special circumstances simply could not arise thereafter. In any event, a period of over three and a half years passed between the discovery of the fact of nonservice in June 2020 and the making of the renewal application in 2024. The application to renew if justifiable at all it should have been taken as a matter of urgency shortly after June 2020.

45. On the question of the interests of justice, counsel for the second defendant pointed to real prejudice being occasioned to the second defendant in the event that the renewal order was not set aside as causation matters were in issue, there were incomplete medical records, the first defendant who (unusually) carried out both the initial hip implant and the revision surgery was deceased and his oral evidence would have been relevant to the defence. While accepting that the second defendant's involvement in a large volume of other cases might help ameliorate that prejudice, a real risk of prejudice nonetheless arose.

Discussion

46. I am prepared to accept that special circumstances were made out by the plaintiff for the period from the lapse of the unserved summons in January 2016 to the discovery by the second solicitor in June 2020 of the fact of non-service of the summons, notwithstanding the very long lapse of time in that period, in circumstances where:

(i) the plaintiff’s first solicitor actively misled the plaintiff during the 12 months’ currency of the summons by implying that the summons had been served when stating in August 2015 that a notice for particulars had been raised on the summons, inviting information from the plaintiff for replies and stating that a defence was expected imminently;

(ii) the plaintiff during the period her first solicitor was instructed maintained regular contact with her office and was advised that her case was progressing;

she was at no time made aware of any difficulties concerning her case. The first solicitor gave spurious reasons for the delay in concluding the case including that the second defendant was dealing with hundreds of similar cases and was prioritising cases from older claimants;

(iii) when in December 2018 the plaintiff saw a newspaper article that her first solicitor was before the Law Society regarding allegations of misconduct, she wrote to the solicitor in January 2019 and received a response on 24 January 2019 (following a meeting with her that day) that falsely sought inter alia to blame the delay in concluding the case on problems with handling the DePuy cases within the court system and falsely assured her that her case would be finalised and settled within 6 to 8 months

(iv) When the plaintiff engaged the second solicitor from the end of January 2019, the first solicitor actively frustrated the handover of the plaintiff’s file and insisted improperly that a large, un-itemised and unjustified fee note would be discharged before papers would be handed over;

(v) the plaintiff through her second solicitor was forced into making a complaint to the Law Society in order to obtain the file and the first solicitor dragged her heels in relation to that process; no papers were handed over at all before June 2020;

(vi) While the plaintiff had understandably developed deep concerns as to what if anything had been done in relation to her case, she did not become aware until June 2020 when her second solicitor was contacted by a solicitor acting on behalf of the first solicitor informing him that not only had the summons never been served but that the first solicitor had failed to notify her indemnifiers and claimed she did not assets thereby jeopardising the normal recourse which the plaintiff would have had against her first solicitor for the damage resulting from the failure to serve the summons within time;

(vii) the second defendant was aware from the PIAB application served in 2015 on a DuPuy entity that the plaintiff was making a claim in relation to an allegedly defective hip supplied by DuPuy and the second defendant had very extensive experience in dealing with such hip replacement claims.

47. Given the plaintiff's proactive involvement, including during the currency of the summons, in contacting her solicitor to advance her case and given that the conduct of her first solicitor was so far outside the reasonable scope of the solicitor client relationship including in how she repeatedly actively misled the plaintiff, I do not think that this is a case where it would be appropriate to fix the actions of the first solicitor with the plaintiff for the purposes of the application of the renewal rule. The combination of events set out above are so unusual and extraordinary that they do in my view amount to special circumstances within the meaning of the rule.

48. However, in my view, there are not sufficient special circumstances for at least considerable parts of the period following June 2020 to justify the renewal of the summons over 3 and a half years later.

49. It behoved the second solicitor to make a renewal application within a reasonable period following discovery of the fact of non-service of the summons in June 2020 and in fairness to him as expressed repeatedly in his correspondence, he was aware of the urgency of the matter if a renewal application was to be made.

50. The second solicitor undoubtedly found himself in a difficult position given the mess inherited from the first solicitor. He had to spend considerable time both before and after June 2020 progressing the Law Society complaint in the face of stonewalling by the first solicitor. He was also hampered by the fact that he had not been handed over the plaintiff’s full file, and that it subsequently emerged that the original summons had been lost. I think reasonable allowance would have been made for those circumstances if a renewal application had not been made for a period of a couple of months after June 2020.

51. However, despite the second solicitor acknowledging to the second defendant's solicitor on 10 November 2020 that an application to extend time for service of the summons would have to be made, no application was made to renew the summons until well over 3 years later. Even allowing for the work done by the third solicitor to ready a renewal application, there is a period of over two and a half years from October/November 2020 to the handover of the plaintiff’s file to the third solicitor in March 2023 which cannot be explained by special circumstances.

52. While the second solicitor may not have had as complete a picture as the third solicitor, such correspondence as the second solicitor was sent from the plaintiff’s file at the end of June 2020 seemed to make clear that nothing material had been done on the file by the first solicitor since 2015 and that McCann FitzGerald had engaged in without prejudice correspondence at that time on the apparent basis that the second defendant was aware that the plaintiff intended to make a claim arising from her defective hip implant. (The third solicitor’s affidavit evidence states that the file as received by her from the second solicitor contained without prejudice correspondence between McCann FitzGerald and the second solicitor which suggested that the second defendant had notice of the plaintiff’s claim, although the file failed to disclose how this correspondence arose). The second solicitor would also have been aware of the fact that the second defendant was dealing with hundreds of similar cases at the time, a potentially relevant factor in any renewal application.

53. Critically, instructions from the plaintiff at that point would have made it very clear that the plaintiff had been actively misled by the first solicitor as to the progress of the proceedings for a prolonged period. The second solicitor knew that the summons had not been served and the first solicitor was not indemnified; he was aware that the first solicitor was actively obstructing the hand-over of papers; all the available information at this time pointed towards a high degree of misconduct by the first solicitor and a total failure to serve the proceedings let alone meaningfully advance the proceedings.

54. The second solicitor not unreasonably embarked on a course from August 2020 onwards of seeking to get the second defendant to agree a settlement on effectively a concession basis and in seeking to recover from the first solicitor the damage resulting from the failure to serve the summons and progress the proceedings. While this was an understandable and appropriate course of action, it was not inconsistent with an application to apply for a renewal of the summons.

55. While I am sympathetic to the view that the second solicitor was placed in a difficult position as a result of the misconduct of the first solicitor, the reality was that he had sufficient information to cause a renewal application to be made and the extraordinary behaviour of the first solicitor and her apparent lack of both insurance cover or assets in the event she was sued, at least merited a renewal application being brought within a reasonable period after June 2020; unfortunately, no such application was brought.

56. The second solicitor said in correspondence with the first solicitor in May 2021 that he had received advice from counsel (initially, it seems, sought in October 2020) to the effect that an application to renew the summons would not be successful and it seems reasonable to infer that a decision was taken as a result of that advice not to apply for a renewal of the summons. It is not clear what precise account of matters was provided to counsel or what the precise basis of counsel’s advice was. No written advice of counsel was in evidence. It is further unclear as to what precise advice was provided to the plaintiff as to the prospects of a renewal application. Even assuming that counsel was fully instructed as to all relevant circumstances and advised against a renewal application being brought despite awareness of all those circumstances, then the plaintiff is faced with the difficulty that an informed decision was taken not to bring a renewal application. If such an informed decision was made, that seems to me to be fatal to any renewal application brought over two and a half years later.

57. In short, a renewal application should have been brought within a reasonable period after June 2020. Instead, a decision was taken not to bring such an application. Either way special circumstances cannot be made out.

58. It is clear that the third solicitor diligently and commendably carried out significant work on behalf of the plaintiff to attempt to piece together the full set of events that had occurred since she engaged her first solicitor and to establish through the gathering and analysis of medical records the extent to which the second defendant was on notice of a claim by the plaintiff or might be said to be truly prejudiced by a renewal application even at a very late remove. Even if the period of the third solicitor’s involvement from when he received the file in March 2023 to the date of the renewal application in February 2024 could be excused as amounting to special circumstances within the rule - an issue which I do not need to rule on in the circumstances - the fundamental difficulty remains that there was a period of well over two and a half years from the discovery of the fact of non-service of the summons to that belated file handover by the second solicitor to the third solicitor during for which, at least in substantial part, no special circumstances can be made out. This period came after an extremely lengthy period of well over 4 years since the lapse of the summons which increased the necessity for any renewal application to be brought as a matter of real urgency.

59. As the plaintiff cannot get through the gateway requirement of establishing special circumstances for the whole or substantially the whole of the relevant period, she unfortunately does not get to the interests of justice assessment.

Conclusion

60. With considerable reluctance given the consequences for the plaintiff, who remained blameless throughout, I am accordingly compelled to the conclusion that the renewal order made on 8 April 2024 must be set aside.