Supreme Court allows renewal of summonses despite procedural errors due to widespread legal mistake and lack of prejudice.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Record No. 2024/66

[2025] IESC 55

O’Malley J. Woulfe J. Murray J. Collins J. Donnelly J.

BETWEEN/

MICHAEL POWER

Plaintiff/Appellant

-and-

CJSC INDIGO TAJIKISTAN, TELIA COMPANY AB and AGA KHAN FUND FOR

ECONOMIC DEVELOPMENT SA

Defendants/Respondents

JUDGMENT of Mr Justice Woulfe delivered on the 17th day of December, 2025

Introduction

1. The plaintiff appeals the decision of the Court of Appeal (Allen J.; Pilkington and Butler JJ. concurring) in four appeals from the judgment and orders of the High Court (Egan J.) relating to applications to set aside the renewal of a number of summonses.

2. As regards the second defendant, the Court below ordered that its two appeals from part of the judgment and orders of Egan J. be allowed, and it was ordered that an order be substituted pursuant to O. 8, r. 2 of the Rules of the Superior Courts (the “Rules”) setting aside the renewal of the personal injuries summons and the plenary summons as against the second defendant.

3. As regards the third defendant, the Court below ordered that the plaintiff’s appeal from part of the judgment and order of the High Court (Egan J.) (ordering that a renewal of the personal injuries summons as against the third defendant be set aside) be dismissed. The Court also ordered that the appeal by the third defendant from part of the judgment and order of Egan J. be allowed, and it was ordered that an order be substituted pursuant to O. 8, r. 2 of the Rules setting aside the renewal of the plenary summons as against the third defendant.

4. While the overall issue in this appeal relates to the test for the renewal of a summons, an important underlying issue also arises as to whether leave to serve out of the jurisdiction should have been sought in respect of the second defendant and the third defendant, pursuant to O. 11A, r. 4(1) of the Rules. As set out below, the Court of Appeal treated the appellant’s apparent failure to obtain such leave as a knock-out blow to renewal of the summonses. I will ultimately conclude, however, that the Court of Appeal fell into error in making this assumption or finding, and it will remain necessary in this judgment to consider the application of the test for renewal in the absence of that erroneous knock-out blow.

Background

5. The plaintiff was employed as chief financial officer of the first and/or second defendant in these proceedings. The first defendant is a corporation registered in Tajikistan, where it carries on the business of a mobile telephone operator. The second defendant is a Swedish public limited company with its principal activity as a telephone company and mobile network operator. It appears that, at the relevant time, the second defendant was indirectly the majority shareholder in the first defendant. The plaintiff claims that the second defendant was responsible for the oversight of matters relating to governance and ethics of the first defendant. The third defendant is a Swiss public limited company who, together with the second defendant, the plaintiff contends had fiduciary duties in respect of the governance and operations of the first defendant.

6. The plaintiff was employed by one or other of the first and second defendants from the 20th January, 2016, until the 28th February, 2017, when his employment was either terminated or came to an end. In the course of his employment in Tajikistan unhappy differences arose between the plaintiff and the first and second defendants, for which the plaintiff held all three defendants to be responsible.

7. The plaintiff brought two separate sets of proceedings against the defendants. The first were personal injury proceedings, commenced by a personal injuries summons issued on the 3rd July, 2019, and the second were protected disclosure proceedings commenced by a plenary summons, directed to the second defendant, and a concurrent summons directed to the first defendant and third defendant, claiming damages pursuant to s. 13 of the Protected Disclosures Act 2014, issued on the 7th February, 2020.

Service of the Summonses on the Second Defendant

8. On the 17th July, 2019, the plaintiff’s solicitor sent a copy of the personal injuries summons by registered post directly to the second defendant, and copied it to the Swedish lawyers representing the second defendant, Mannheimer Swartling, and for the second time requested confirmation that they would accept service of the proceedings. However, on the 31st July, 2019, Mannheimer Swartling again stated that they did not have instructions to accept service of legal proceedings on behalf of the second defendant.

9. Some time later the plaintiff’s legal team considered whether it was necessary to apply to the High Court for leave to serve proceedings out of the jurisdiction in respect of the first defendant only, or whether it was also necessary to obtain such leave in respect of the second defendant and third defendant. Their understanding appears to have been that leave to serve out was only required in respect of the first defendant, and they relied on an inquiry made to the Central Office of the High Court which they said confirmed their own understanding. On the 3rd February, 2020, the High Court made an order pursuant to O. 11, r. 1(e) of the Rules that the intended plaintiff be at liberty to issue and serve notice of proceedings against the intended first defendant at an address in Tajikistan. It was common case as of the hearing of this matter in the High Court that, pursuant to the provisions of O. 11A, r. 4(1) of the Rules, leave to serve out of the jurisdiction should have been sought in respect of all three defendants. While I shall return to this issue below, it may be helpful to set out the text of that rule at this juncture: “4.(1) Where two or more defendants are parties to proceedings to which the provisions of this Order apply, but not every such co-defendant is domiciled in:

(i) A Member State of the European Union, or

(ii) A Contracting State of the Lugano Convention,

for the purposes of Regulation No. 1215/2012, the Lugano Convention, or the 1998 Act, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co-defendant.”

10. After the protected disclosure proceedings were issued in February, 2020, the plaintiff’s solicitor decided to effect service of both sets of proceedings directly on the second defendant pursuant to Council Regulation (EC) No. 1393/2007 on the service in Member States of judicial and extrajudicial documents in civil or commercial matters (the “EC Regulation”), to which effect is given by O. 11D of the Rules. Accordingly, on the 17th February, 2020, the plaintiff’s solicitors sent a “Request For Service Of Documents” form to the Courts Service Centralised Office (“CSCO”). The said form, described in the Court below as “a complete mess”, identified the addressee as the third defendant, but gave the addressee’s address details as the second defendant’s address in Stockholm, Sweden. The form identified the nature of the document to be served as “Writ of Summons”. The form invited the person making the request to indicate “Date or time limit after which service is no longer required”, and the date indicated by the plaintiff’s solicitor was the 30th December, 2020.

11. Notwithstanding any defects in the paperwork submitted by the plaintiff’s solicitor, it appears that on the 21st February, 2020, the CSCO, in its capacity as the Irish transmitting agency pursuant to the EC Regulation, wrote to the Swedish receiving agency requesting that service be effected on the second defendant of the personal injuries summons or notice of the personal injuries summons. The CSCO received an acknowledgment of receipt for this request on the 30th June, 2020.

12. It further appears that on the 9th March, 2020, the CSCO wrote to the Swedish receiving agency requesting that service be effected on the second defendant of the plenary summons or notice of the plenary summons. The CSCO received an acknowledgment of receipt for the second request on the 25th August, 2020.

13. Article 7 of the EC Regulation states that the receiving agency is to take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt. Failure to serve the document within one month obliges the receiving agency to immediately inform the transmitting agency, whereupon the delay can be explained to the plaintiff in question. As is now apparent, the Swedish receiving agency did not effect service upon the second defendant until the 1st September, 2020, two months after expiry of the personal injuries summons on the 2nd July, 2020. The plaintiff’s solicitor, however, was unaware of this, and he has averred that he was not informed that any delay in effecting service was afoot, and that he reasonably expected that the proceedings had been served within one month of receipt.

Service of the Summonses on the Third Defendant

14. After the personal injuries summons issued on the 3rd July, 2019, certain correspondence ensued between the plaintiff’s solicitor and the third defendant’s solicitor, and Egan J. accepted the plaintiff’s contention that over this period of time he had a reasonable basis for believing that the third defendant’s solicitors would have authority to accept service of the personal injury proceedings. Matters changed, however, on the 6th December, 2019, when the third defendant’s solicitors informed the plaintiff’s solicitors that they did not have authority to accept service of the personal injury proceedings on behalf of the third defendant. Accordingly, in January, 2020, consideration was given to the appropriate method of service on the three separate defendants. Shortly thereafter the plaintiff’s solicitor issued the plenary summons and a concurrent plenary summons in the protected disclosure proceedings, for service on the second defendant and third defendant respectively, on the 7th February, 2020.

15. Egan J. stated that it was common case that the service of both sets of proceedings on the third defendant was unfortunately impacted upon by certain misconceptions. The first suggested misconception was the plaintiff’s supposed failure to realise that leave to serve out of the jurisdiction, pursuant to O. 11A, r. 4(1) of the Rules, was required in respect of both sets of proceedings for both the second and third defendants. As early as the 6th March, 2020, the solicitors for the third defendant wrote to the plaintiff’s solicitors noting that the High Court order dated the 3rd February, 2020, did not grant leave to serve the proceedings out of the jurisdiction on their client. I will consider whether this was in fact a misconception below.

16. The second suggested misconception arose from the distinction between the appropriate method for service on the second defendant, who was domiciled in Sweden and thus subject to the EC Regulation/O. 11D of the Rules, and the third defendant, who was domiciled in Switzerland and thus subject to the service requirements outlined in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”), as implemented in Ireland by

O. 11E of the Rules. As outlined above, on the 17th February, 2020, the plaintiff’s solicitor did something which may have appeared to have been a request to the Irish transmitting agency to effect service of both sets of proceedings on the third defendant outside the jurisdiction pursuant to the EC Regulation, rather than pursuant to the Hague Convention. It seemed to Egan J. that in doing so the plaintiff’s solicitor made an error and provided an address for service on the third defendant which was in Sweden (and not, as it should have been, in Switzerland).

17. It is not clear (at least to me), however, that the February, 2020 request to the Irish transmitting agency involved an attempt to effect service on the third defendant, as opposed to the form merely having contained a typographical error involving the incorrect identification of the third defendant as the addressee, in circumstances where all of the address details given were the second defendant’s address in Sweden. I say this because, in his affidavit sworn herein on the 21st May, 2021, the plaintiff’s solicitor avers (at para. 38) that as of the 23rd January, 2020 “we had understood the rules for service on the second and third named defendants to be contained in the Service Regulation (Council Regulation (EC) No. 1393/2007) and the Hague Service Convention, respectively”. Furthermore, he never avers that the February, 2020 procedure was in fact an attempt to serve the third defendant, and he accepts that the EC Regulation does not apply to the third defendant.

18. In any event, service of either summons was not effected on the third defendant prior to the expiry of the personal injuries summons in July, 2020. Moreover, in contradistinction to the position that applied in relation to the second defendant, who was served in Sweden in September, 2020, the third defendant was not served in Switzerland at that time.

19. In October, 2020, the plaintiff’s solicitor changed course, and began to take steps to serve proceedings upon the third defendant in Switzerland pursuant to the correct method, i.e., pursuant to the Hague Convention. On the 14th October, 2020, the plaintiff’s solicitor wrote to the Swiss central authority for the purpose of effecting service on the third defendant pursuant to the Hague Convention. The said letter enclosed a copy of both the personal injury proceedings and the protected disclosure proceedings.

20. Along the way a third suggested misconception may have been at play, as this is not the correct mode of service under the Hague Convention/O. 11E. A party desiring to serve outside the jurisdiction under the Hague Convention must lodge the request for service with the Master of the High Court, the Irish central authority, who must certify that the request for service complies with the requirements of the Convention prior to the transmission of the request to the relevant central authority in the foreign jurisdiction. In this case the plaintiff’s solicitor simply bypassed the Irish central authority and sent the proceedings directly to the Swiss central authority.

21. Notwithstanding this, on the 9th November, 2020, the third defendant’s Swiss lawyers gave authority to a particular individual to collect the relevant legal documents from the Swiss central authority on behalf of the third defendant. The following day, this individual signed and dated a certificate under the Hague Convention indicating the collection of documents. On the same day, the Swiss central authority wrote to the plaintiff’s solicitor enclosing a stamped attestation certificate, confirming that the documents (comprising notices of the personal injuries summons and plenary summons and French translations of each) had been served in conformity with Article 6 of the Hague Convention.

The High Court

22. As set out above, service of both the personal injury proceedings and the plenary proceedings was effected upon the second defendant on the 1st September, 2020. By letter dated the 6th October, 2020, the second defendant’s Irish solicitors wrote to the plaintiff’s solicitors and enclosed conditional appearances in respect of both sets of proceedings. They stated that the entry of a conditional appearance in respect of the personal injury proceedings was strictly without prejudice to their position that those proceedings were not served within twelve months of the date of issuance. The letter did not make any objection to service on grounds of non-compliance with O. 11A, r. 4(1).

23. In their reply dated the 19th November, 2020, the plaintiff’s solicitors stated that they reasonably expected that the personal injury proceedings had been served pursuant to Article 7 of the EC Regulation, and that it was with shock that they had learned that the service was not within twelve months of issuance of the summons.

24. As set out above, service of both sets of proceedings was effected on the third defendant on the 10th November, 2020. By letter dated the 17th November, 2020, the third defendant’s Irish solicitors wrote to the plaintiff’s solicitors and queried whether all steps required to effect proper service under the Hague Convention had, in fact, been taken in respect of both sets of proceedings. The letter drew attention to the fact that the personal injuries summons had expired by the time of service.

25. During the subsequent period from December, 2020 to May/June, 2021, there was active engagement between the solicitors for the plaintiff and the solicitors engaged by the second and third defendants, and this engagement is set out in detail in the judgments of the Courts below. The trial judge had no doubt that the second defendant, and indeed the third defendant, were fully aware during this entire time that the plaintiff intended to bring, and was in the course of preparing, an application to obtain orders renewing the summonses and regularising the position.

26. By letters dated the 7th May, 2021, the plaintiff’s solicitors indicated that the plaintiff would make an application for leave to serve out of the jurisdiction in respect of all three defendants, having regard to O. 11A, r. 4(1) of the Rules. They noted that, as a consequence of the above, both summonses would have expired and therefore an application for their renewal was also now required.

27. On the 21st June, 2021, the plaintiff made an ex parte application pursuant to O. 8, r. 1(3) of the Rules for orders in both sets of proceedings renewing the summonses for three months from the date of such renewal. Order 8, r. 1(4) provides as follows: “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.”

28. McDonald J. ordered that the summonses be renewed for a period of three months. The orders recite that the Court was satisfied that “special circumstances” existed which justified the renewal, namely “the difficulty in effecting service of the proceedings” on the second defendant and the third defendant. The plaintiff was also given liberty to serve notice of the proceedings out of the jurisdiction on each of the defendants. In his affidavit sworn herein on the 7th October, 2021, the plaintiff’s solicitor avers as follows (at para. 19): “Ex parte application and Court’s comments regarding Order 11A, rule 4

19. When the ex-parte application was made before this Honourable Court on 21 June 2021, the Court accepted the procedural dilemma in which the plaintiff found himself. The Court said that while the plaintiff was not wrong to make the application, it was nevertheless “puzzled” by the interpretation of O. 11A, r. 4 being advanced. The Court said the language of the rule was “less than clear” as it seemed to the Court “to defeat the purpose of the Brussels Regulation and the Lugano Convention if you have to then go back to O. 11 in its original form to determine jurisdiction, which is what r. 4 of O. 11A seems to suggest.”

29. The second and third defendants, by two notices of motion dated the 30th July, 2021, and two dated the 12th January, 2022 respectively, applied for orders pursuant to O. 8, r. 2 of the Rules setting aside the said orders of McDonald J. granting a renewal of both summonses. The third defendant’s notices expressly stated that this was on the grounds that no “special circumstances” existed which justified a renewal of either summons under O. 8, r. 1(4) of the Rules.

30. Egan J. commenced by considering the legal principles applicable to renewal of a summons. She noted that a summons once issued remains valid for a period of one year before it expires, unless it has been served, and that after the expiration of twelve months, an application for an extension of time to renew the summons must be made to the Court. She felt that in the past the bar applying to renewal applications was relatively low, however, she noted that O. 8, r. 1(4) now provides that in order to grant renewal, the Court must be satisfied that there are special circumstances which justify an extension.

31. The trial judge cited the recent decision of the Court of Appeal in Murphy v HSE [2021] IECA 3 (“Murphy”), where Haughton J. analysed the meaning of “special circumstances” in the revised version of O. 8 of the Rules since 2019. The previous version of O. 8 required a plaintiff to prove that there was “good reason” to renew the summons. Haughton J. noted that the “special circumstances” test was generally accepted to be a higher test than the previous threshold of “good reason”, which he felt may well be something that arises commonly or frequently. He stated that while the word “special” did not raise the bar to “extraordinary”, it did suggest some fact or circumstance beyond the ordinary or usual, and therefore the word “special” necessarily imports a circumstance that is not normal or common.

32. Egan J. also cited another recent decision of the Court of Appeal in Nolan v. Board of Management of St. Mary’s Diocesan School [2022] IECA 10 (“Nolan”), where Noonan

J. considered whether the question of prejudice was to be considered in tandem with the question of whether a special circumstance existed. In the light of Nolan, she held that a party seeking renewal of a summons must, as a “gateway requirement”, establish that special circumstances exist. She could not accept the plaintiff’s argument that in determining whether special circumstances exist, the Court is required to consider prejudice. Rather, the presence or absence of material prejudice to either party was relevant in determining whether the special circumstances found to exist justify the renewal, or whether, notwithstanding that special circumstances exist, a renewal ought not to be granted. In this latter respect, the Court considers whether it is in the interests of justice to renew the summons which entails considering any general or specific prejudice or hardship alleged by the defendant, and balancing that against the prejudice or hardship that may result for the plaintiff if renewal is refused.

The Second Defendant: Renewal of the Personal Injuries Summons

33. With regard to the second defendant, the trial judge was satisfied that the plaintiff had made reasonable efforts to serve the personal injuries summons prior to its expiry. She found special circumstances in the non-service of both sets of proceedings by the Swedish receiving agency for a period of in excess of six months after their receipt, and its failure to communicate this to the Irish transmitting agency (and hence to the plaintiff). She believed that the plaintiff’s solicitor was entitled to rely upon the obligation of the Swedish agency to effect service within one month of receipt of the proceedings, or to notify the Irish transmitting agency. She suspected that there was a validity in the plaintiff’s solicitors suspicion that the reason for the delay arose from the fact that the time at which the proceedings were forwarded to the Swedish receiving agency (February and March of 2020) coincided with the beginning of the Covid-19 pandemic.

34. In the present case, as in some previous cases cited, the fact that the personal injuries summons was delivered within time (as early as the 19th July, 2019) directly to the second defendant and also to their Swedish lawyers was critical for the trial judge, and further, the plaintiff’s solicitors had clearly intended to formally serve the personal injuries summons within time.

35. Egan J. then considered the lapse of time between October, 2020 (when the second defendant’s solicitors notified the plaintiff that the personal injuries summons had expired prior to service) and the ex parte application for renewal of the summonses in June, 2021. She held that while, at first sight, the expiry of time seemed excessive, when looked at closely it was apparent that developments during this period were part of an ongoing process as between the parties in relation to the litigation, and that a number of factors taken together ensured that this passage of time did not prevent the plaintiff from establishing “special circumstances”. Indeed, the time needed by all parties to bring forward the complex and overlapping series of applications necessary to bring clarity to this matter was itself a manifestation of the special circumstances existing in this case.

36. In Egan J’s. view, the special circumstances in this case justified renewal of the personal injuries summons. The second defendant had notice of the proceedings immediately after their commencement, and indeed had been aware of the issues arising for several years beforehand. The personal injuries summons was very fully pleaded and runs to twenty pages. This would have enabled the second defendant to preserve such records as might be relevant to the defence of the proceedings, to start to collect evidence, or if necessary to notify their insurers. For Egan J. this was all highly significant, as the case law indicated that one of the factors which could be taken into account on a renewal application is that the defendant is on notice of the proceedings, notwithstanding that same had not been formally served. Furthermore, the fact that the proceedings would in all likelihood be barred under the statute of limitations if the renewal was set aside, although not in itself a justification for renewing the summons, was an appropriate consideration. Bearing in mind all of the above, Egan J. held that it would be entirely contrary to the interests of justice to grant the application now sought.

The Second Defendant: Renewal of the Plenary Summons

37. As set out above, the plenary summons was issued on the 7th February, 2020, and the plaintiff’s solicitors sought to effect service on the second defendant pursuant to the EC Regulation procedure in February/March, 2020, by sending the summons to the CSCO as transmitting agency on the 9th March, 2020. Whilst the personal injury proceedings had expired by the time of service upon the second defendant on the 1st September, 2020, the service of the protected disclosure proceedings on the second defendant on the same date predated the expiry of that summons in February 2021, by five months.

38. In these circumstances, the only argument which could be called in aid by the second defendant in relation to the plenary summons was said to be that the service actually effected on it on the 1st September, 2020, was irregular having regard to the O. 11A leave issue. While the service actually effected upon the second defendant in September, 2020 was viewed by Egan J. as irregular, in the light of that leave issue, the key point for her was that service was in fact effected. The second defendant had not notified the plaintiff of any objection to service based on the O. 11A leave issue with reasonable expedition, and it was now simply too late for it to raise the issue. Moreover, the order renewing the summons also granted leave to re-serve the defendants out of the jurisdiction. This, in the trial judge’s view, cured any latent defect in the proceedings resulting from the stated non-compliance with O. 11A, r. 4.

The Third Defendant: Renewal of the Personal Injuries Summons

39. With regard to the third defendant, Egan J. found that the personal injuries summons had been irregularly served on the third defendant in November, 2020, four months after its expiry. In light of the several factual and procedural errors or suggested misconceptions which unfortunately impacted upon the supposed attempts at service on the third defendant in or about March, 2020, she did not think that it could fairly be said that there were special circumstances concerning the efforts to serve the personal injuries summons on that defendant. In short, in the case of the third defendant, the selected address and even the country of service (Sweden rather than Switzerland) was incorrect.

40. Egan J. went on to hold that, separately, the service attempted was in any event impacted by several procedural defects (of which notice was given to the plaintiff). In common with the second defendant, service on the third defendant was irregular as leave to serve out of the jurisdiction had not been sought in accordance with O. 11A, r. 4 of the Rules. In addition, the service of the summons on the third defendant suffered from an additional frailty to that pertaining to the second defendant, insofar as service was incorrectly effected having regard to the provisions of the Hague Convention/O. 11E of the Rules.

41. Overall, the trial judge’s view was that these circumstances could not give rise to a reasonable expectation of service within the lifetime of the summons, or to other special circumstances. In addition, whilst the circumstances certainly disclosed “difficulty in effecting service”, she did not think that the particular misconceptions or inadvertence subtending these difficulties and causing the non-service of the personal injuries summons within its lifetime were on a par with those in issue in some previous case law cited by her. She stated that she had also carefully considered whether the overall complexities in effecting service on the three separately domiciled defendants could in itself constitute a special circumstance justifying the renewal of the summons, and she concluded that it could not. Were it otherwise, the same rationale could presumably apply in any action in which a plaintiff institutes proceedings against several foreign defendants. It would, in her view, be unfair to such defendants to hold, virtually as a matter of principle, that the complexities inherent in such litigation, without more, gave rise to special circumstances.

The Third Defendant: Renewal of the Plenary Summons

42. Egan J. stated that the essential difference between the personal injury proceedings and the protected disclosure proceedings was that the latter proceedings were served on the third defendant in November, 2020, before the expiry of the plenary summons in February 2021. The service of the plenary summons was, however, irregular arising from the O. 11A leave issue and the O. 11E issue. The trial judge did not think that these irregularities prevented the establishment of special circumstances. Notwithstanding these difficulties, on the 10th November, 2020, the Swiss central authority sent the plaintiff a certificate confirming service of the documents in accordance with the Hague Convention. Egan J. felt that this no doubt reassured the plaintiff. Although objection was shortly taken by the third defendant to the irregularities in service, the plaintiff was entitled to rely upon the fact that, as the plenary summons had not expired prior to service, the service effected, although irregular, could if necessary be deemed good or corrected in some other way.

43. While the third defendant criticised the plaintiff’s delay in bringing the motion to renew the summons, Egan J. was of the view that this did not prevent the above matters from constituting special circumstances. This was partly because many of the points already discussed in connection with delay on the part of the second defendant, as referred to at para. 35 above, applied with equal force here.

44. In addition, Egan J. felt, focusing only on the plaintiff’s delay was to ignore the fact that a defendant must also act with expedition in bringing an application to set aside renewal of a summons, which the third defendant had not done in relation to the July 2021 ex parte order until January 2022. Egan J. felt that this was no doubt because of the complexity of the matter, but in her view it rendered the third defendant’s criticism of the plaintiff’s delay in preparing his own application papers somewhat hollow.

45. In the trial judge’s view, special circumstances were established insofar as concerned the renewal of the plenary summons against the third defendant. She was further satisfied that these special circumstances justified the renewal of the summons. As with the second defendant, the key point for her was once again that service, although irregular, was in fact effected upon the third defendant before the expiry of the summons.

She was also influenced by the absence of specific prejudice on the part of this defendant, given its early notification of the full particulars of the claim.

The Court of Appeal

46. The second and third defendants appealed against the orders of Egan J. refusing them relief, and the plaintiff appealed against the order setting aside the renewal of the personal injuries summons as against the third defendant. For the reasons stated in the judgment of Allen J., with which Pilkington and Butler JJ. agreed, the Court of Appeal allowed the defendants’ appeals and dismissed the appeal of the plaintiff.

47. Allen J. noted that it was common case that the plaintiff bore the burden of satisfying the Court that there were special circumstances which justified the renewal of a summons, and the special circumstances relied upon by the plaintiff in this case were that there had been difficulty in effecting service of the proceedings. While the use of the word “special” did not raise the bar to “extraordinary”, he felt that the circumstances in which the need for the renewal of the summonses arose in this case were in fact extraordinary. However, it was not sufficient for the plaintiff simply to show that the circumstances were unusual. Besides being beyond the ordinary and usual, the circumstances must be such as to justify the renewal of the summons. The particular question in all four appeals was whether the fact that the summonses had not been served was attributable to a “difficulty in effecting service”.

48. Allen J. then reviewed the circumstances surrounding the purported service of the summonses. He noted that the plaintiff had issued a personal injuries summons against each of the defendants on the 3rd July, 2019, without leave of the High Court, despite the general requirement in O. 5, r. 14 of the Rules for leave to issue a summons for service out of the jurisdiction, subject to certain exceptions. He held that the personal injuries summons was plainly not a summons which came within the exceptions in O.

5, r. 14(2) and, by virtue of O. 11A, r. 4(1), was plainly a summons to which the provisions of O. 11 requiring leave to serve out of the jurisdiction applied to each and every named defendant. As regards the plenary summons and concurrent summons issued on the 7th February, 2020, Allen J. again held that, by virtue of O. 11A, r. 4(1), the plaintiff was plainly required to apply for leave to issue and serve notice of the proceedings on each and every one of the defendants, but this was not done.

Special Circumstances – Second Defendant

49. Allen J. noted the trial judge’s finding that the failure of the Swedish receiving agency to effect service on the second defendant or to communicate the failure to effect service for six months constituted special circumstances. The problem with this finding, it seemed to him, was that it ignored the fact that the personal injuries summons could not have been validly served without leave. He considered that the focus of the trial judge on whether the defendants pointed out to the plaintiff the error of his ways tended to confuse where the responsibility lay to ensure that valid service was effected. In his firm view, it was the responsibility of the plaintiff’s solicitors to first of all establish what the requirements of the Rules were, and then to ensure that they were complied with, and it was not the responsibility of the defendants’ solicitors to try to work out whether the requisite leave had been obtained, and if it had not, to point out any deficiency. That, in truth, was for him the beginning and the end of the matter. Absent leave, he could not see how anything that might have been done with either of the summonses could have amounted to a reasonable attempt to serve either summons.

50. As to what in fact was done with the summonses, Allen J. held that the onus was clearly on the plaintiff to establish the difficulty in effecting service on which he relied. He looked at the attempts to effect service pursuant to the EC Regulation in February, 2020, and he could not agree that the request for service could have been a reasonable effort to serve the personal injuries summons on the second defendant. As regards the delay in service by the Swedish agency on the second defendant, he held that leaving aside again the fact that leave had not been obtained – and the fact that somehow or other the documents sent for service on the third defendant came to be delivered to the second defendant – the fact was that the delay between the transmission of the documents and the delivery to the second defendant was unexplained.

51. Allen J. accepted that it was the case, as the trial judge had said, that a copy of the personal injuries summons was sent to the second defendant and its Swedish lawyers and that the plaintiff’s solicitors intended to formally serve it in time. However, he stated, in this case, whatever they might have intended, the plaintiff’s solicitors could not have validly served either summons without leave. It seemed to Allen J. that the failure of the plaintiff’s solicitors to read the Rules could not be properly characterised as inadvertence or oversight. As far as the plenary summons was concerned, the solicitors decided that they did not need leave. If they thought about it at all, there was no reason to believe that the position was any different as far as the personal injuries summons was concerned. The third defendant’s solicitors’ letter of the 6th March, 2020,

– pointing out that the order of the 3rd February, 2020, did not grant leave to serve proceedings on their client – afforded an opportunity for reconsideration which, unfortunately, was missed.

52. Allen J. then dealt with the plaintiff’s reliance on the inquiry which his solicitors had made to the Central Office regarding the requirement for leave in January 2020, and the advice said to have been received that leave to serve the defendants out of the jurisdiction pursuant to O. 11A of the Rules was only required in connection with the first defendant, and not the other two defendants. In the plaintiff’s written submissions to the Court of Appeal it was stated that it was absolutely clear (a) that such advice was given, and (b)

that the plaintiff’s legal representatives acted on it. Allen J. stated that it is no part of the function or duty of Central Office staff to dispense legal advice, and still less is it appropriate that solicitors or counsel, whose duty it is to advise their clients with skill, care and diligence, abdicate their responsibility to the staff of the Central Office. He held that if the plaintiff’s solicitor’s reliance on the advice of the Central Office was out of the ordinary, it was not a circumstance that could have justified a renewal of the summons.

53. Allen J. went on to the consider the delay by the plaintiff in making the ex parte application to renew the summons in June 2021. He disagreed with the trial judge who had thought that the preparation of the application papers was not straightforward, and entailed complex decisions and judgment calls. In that context, Allen J. stated as follows (at para. 141): “I can see, also, that the jurisdiction conferred by Regulation 1215/2012 and the Lugano Convention does not dovetail with the requirements of O. 11 for service out of the jurisdiction but any potential difficulty arising from that dissonance would only arise on the making of the application.”

Special Circumstances – Third Defendant

54. Allen J. stated that when, in early 2020, the plaintiff’s lawyers directed their minds to the fact that they had three foreign defendants, there was hopeless confusion regarding the need to apply for leave to serve out of the jurisdiction and the requirements for such service. He looked at the three “misconceptions” identified by the trial judge. Firstly, as regards the O. 11A leave issue, he could not agree that there was any distinction to be drawn between the second and third defendants as suggested by the trial judge.

55. Allen J. then looked at the second suggested misconception arising from the plaintiff perhaps having purported to effect service on the third defendant pursuant to the EC Regulation, rather than pursuant to the Hague Convention, and then erroneously providing an address for the third defendant in Sweden and not in Switzerland. He stated that if documents sent to the Irish transmitting agency for transmission to the Swedish receiving agency addressed to a Swiss corporation at an address of a Swedish corporation in Stockholm were not served, then he found it quite impossible to characterise that chaos even in the loosest language as a difficulty in effecting service, much less as a difficulty in effecting service such as might justify a renewal of the summons.

56. Allen J. moved on to consider the third misconception, what he described as the obviously irregular sending of the papers directly to the Swiss central authority on the 14th October, 2020. He stated that if, for the sake of argument – and he very much doubted it – the plaintiff’s solicitor’s “inadvertence or misconception” might have provided an explanation for the manner in which the papers were sent directly to the Swiss central authority in September, 2020, that could not have survived the third defendant’s solicitor’s letter of the 17th November, 2020, which queried, inter alia, whether the papers had been sent through the proper channels, specifically, through the Master of the High Court.

57. Allen J. noted that the High Court judge had contemplated that the irregular service on the third defendant in November, 2020, might have been deemed good, or at least that the plaintiff was entitled to think that it might, if necessary, have been deemed good. However, the fact of the matter was that there was no application to deem good and the premise of the plaintiff’s renewal applications was that the summonses had not been served in time. If the only irregularity had been the fact that the papers were sent directly to the Swiss central authority and an application had been made during the life of the summons to deem the irregular service good, Allen J. would have thought that the first hurdle which the plaintiff would have had to cross was to say why he should not serve in accordance with the Rules. In fact, there was a further real problem that leave had not been obtained, which could only be addressed by an application for leave.

58. Overall, the Court below was persuaded that the High Court judge erred in failing first to assess whether the plaintiff had made out that there were special circumstances which could justify the renewal of the plenary summons. The plenary summons had been issued without leave, and could not have been validly served without leave. Whatever was done with it could not have amounted to a bona fide attempt to effect valid service. The plaintiff’s failure to obtain leave could not properly be characterised as a difficulty in effecting service, or as a special circumstance which could justify the renewal.

Special Circumstances – The Plaintiff

59. As set out above, the plaintiff appealed against the order setting aside the renewal of the personal injuries summons as against the third defendant. Allen J. stated that the substance of his argument was that his solicitor had been misled by the Central Office of the High Court as to the requirement for leave, and that the third defendant was estopped by the Swiss central authority’s certificate dated the 10th November, 2020, from objecting to the service on the ground of non-compliance with O. 11E. As regards the inquiry made in the Central Office, Allen J. stated that he had already addressed that argument (see para. 52 above).

60. As regards the Swiss central authority certificate, Allen J. held that at the time the collection of the documents had been authorised on behalf of the third defendant in November, 2020, the third defendant’s Swiss lawyers could have had no means of knowing that the service or purported service was irregular: whether on the ground that the personal injuries summons had by then expired, or that the required leave for service out of the jurisdiction had not been obtained, or because the purported service was not in accordance with the Hague Convention or O. 11E.

61. Allen J. stated that the personal injuries summons could not have been validly served during its life (i.e. without leave), and it followed that the fact that it was not served could not be attributed to a difficulty in effecting service. He added that, that apart, the fact of the matter was that the personal injuries summons expired on the 2nd July, 2020, three months before the plaintiff’s solicitor first attempted to serve it. He concluded that, albeit by a different route, the High Court judge was correct in her ultimate

conclusion that the plaintiff had failed to establish any special circumstances which could justify the renewal of the personal injuries summons as against the third defendant.

Determination

62. The plaintiff applied for leave to appeal to the Supreme Court, and was granted leave by a determination dated the 14th November, 2024. This Court was satisfied, given the views expressed in the Courts below as to what may constitute “special circumstances” in any given case, that an issue arose as to the meaning of “special circumstances” as it appears in O. 8, r. 1(4) in relation to the “gateway” threshold and the test for the renewal of a summons. This was considered a potentially systemic issue which had implications not only for the interpretation of O. 8 itself, but also for the manner in which the Rules of the Superior Courts are more generally interpreted. Accordingly, this Court was satisfied that that the applicant had met the constitutional threshold for a further appeal to this Court.

Written Submissions in this Appeal

Submissions of the Plaintiff

63. The plaintiff submits that the following special circumstances arose in this case to justify the renewal of the summonses: firstly, the fact that the second and third defendants had substantial notice and extensive knowledge of the proceedings, and; secondly, that certain errors and misconceptions on the part of the plaintiff’s former solicitor and others cumulatively amount to special circumstances.

64. It is submitted that the Court of Appeal erred in its consideration of the issue of whether notice of the proceedings had been given to the defendants. Firstly, it is said that the fact that a defendant had notice of proceedings can indeed be relied on in order to establish special circumstances, and this is not solely relevant to the issue of prejudice.

65. Secondly, it is submitted that the Court below erred in stating that the plaintiff had “glossed over” the need to establish the jurisdiction of the Irish courts over foreign defendants. He contends that jurisdiction in relation to the second and third defendants is governed by Regulation (EU) No. 1215/2012 (the “Brussels Regulation”) and the Lugano Convention respectively. He argues that where one is dealing with claims where jurisdiction is asserted to be based on the Brussels Regulation and the Lugano Convention, service of proceedings pursuant to domestic rules on service is irrelevant to jurisdiction: the Irish Courts either have jurisdiction under the Regulation and the Convention or they do not. The plaintiff submits that any failure of the plaintiff to serve the defendants in accordance with Order 11 of the Rules does not go to the jurisdiction of the Irish courts over the dispute herein, and that the Court of Appeal erred in holding that it did.

66. The plaintiff considers whether the extent of the notice of the proceedings which was given to the second and third defendants was sufficient to amount to “special circumstances”. Having reviewed the facts, it is submitted that the very extensive notice of both proceedings – which in the case of both defendants in both sets of proceedings included extensive letters of claim before proceedings issued and full copies of the pleadings thereafter – exceeds the notice provided in previous cases, and constitutes, or in any event contributes towards, the establishment of “special circumstances”, such as to justify the renewal of both summonses as against both the second and the third defendants, in accordance with O. 8, r. 1 of the Rules.

67. The plaintiff refers to the number of interlocking errors and misconceptions which it is said contributed to the failure to effect service of both proceedings on both the second and third defendants. He takes issue with the finding of Allen J. which he says was to the effect that there was a failure to read the Rules and therefore previous cases could be distinguished, as the failure in those cases could be attributed to “simple human oversight”. It is submitted that the plaintiff’s former solicitors rather failed to appreciate the requirements of the Rules, and that the failure was more attributable to an administrative error as in previous cases. It is argued that the circumstances of this case are not fundamentally different to those in previous cases, and that they can amount to special circumstances.

68. As regards the delay of the Swedish receiving agency in effecting service of both sets of proceedings on the second defendant, while the High Court considered this to constitute special circumstances, Allen J. held that this ignored the fact that the personal injuries summons could not have been validly served without leave. It is submitted that the Court of Appeal was excessively exacting in this regard, and that the Court may take the delay into account as a special circumstance. While conceding that such service would not have been fully compliant with the Rules, in circumstances where leave had not been obtained, the plaintiff contends that the service effected would have been less deficient if it had been served promptly.

69. As regards the suggested second limb of the test, the plaintiff submits that, if the summonses herein are not to be renewed, his claim against the second and third defendants will be statute barred and he will likely have an adverse costs order against him, and such an order would be financially ruinous. As against that, it is argued that neither the second defendant nor the third defendant can point to any prejudice which they would suffer in the event of renewal. It is submitted that, in those circumstances, the interests of justice plainly favour the renewal of the summonses herein.

Submissions of the Second Defendant

70. The second defendant contends that Allen J.’s approach to “special circumstances” in the Court below should be upheld. It submits that the existence of special circumstances is a de minimis requirement which must be met in order for a judge to consider renewing a summons: renewal may be granted in light of special circumstances and the interests of justice (including prejudice). If a plaintiff has proved the existence of special circumstances, the judge can consider the special circumstances and the broader context of the case. This, in effect, is the “gateway” threshold for renewal of a summons.

71. The second defendant objects to the “special circumstances” identified in the plaintiff’s written submissions, arguing that the original affidavit grounding the ex parte application to renew the summonses in the High Court relied only upon “difficulty in effecting service” as constituting special circumstances. It submitted that no reliance was placed on notice or errors and misconceptions on the part of the plaintiff’s former solicitor and others, and that it is not now open for the plaintiff to recharacterise the special circumstances relied upon to justify renewal.

72. At para. 42 of their submissions the second defendant lists out thirteen factors underlying its position that the plaintiff cannot satisfy the test for renewal of the summonses, including the errors and confusion on the plaintiff’s part, the inordinate and inexcusable periods of delay on the part of the plaintiff in effecting service, the failure of the plaintiff to seek leave to effect service on the second defendant in accordance with O. 11 and O. 11A, r. 4(1) of the Rules, and the excessive delay on the part of the plaintiff in applying to renew his expired summons.

73. The second defendant denies that they had substantial notice and extensive knowledge of the proceedings. It maintains that it repeatedly insisted on being served in accordance with the applicable rules related to foreign service, but this was simply ignored by the plaintiff. It submits that the rules relating to foreign service are not mere technicalities, and that the second defendant was entitled to insist that these rules be complied with.

74. As regards the issue of jurisdiction, the second defendant submits that the Court below did not make a finding that the plaintiff’s failure to serve the defendants in accordance with O. 11 of the Rules went to the jurisdiction of the Irish Courts. It denies that there is authority for the proposition that jurisdiction exists under the Brussels Regulation or Lugano Convention regardless of service. It submits that proceedings issued under O. 11A must still be served in accordance with the requirements of the Rules.

75. The second defendant asserts that the potential statute-barring of an action upon nonrenewal does not constitute a special circumstance. It cites authority to the effect that the fact alone that a refusal of renewal would lead to the plaintiff’s claim being statutebarred cannot constitute special circumstances which justify a renewal, since renewal would then become virtually automatic in every case, and that it should merely be taken as a factor in the court’s overall analysis, since it goes to the hardship likely suffered by the plaintiff. It also cites Downes v TLC Nursing Home Limited [2020] IEHC 465 where Simons J. held that inadvertence or inattention on the part of the plaintiff’s legal advisors will rarely, if ever, amount to special circumstances for the purposes of O. 8, r. 1, stating that the courts have an obligation to progress proceedings in a timely fashion, as opposed to indulging parties who fail to serve proceedings within time.

76. The second defendant concludes that, in the circumstances where the plaintiff has been guilty of inordinate delay and inadvertence, the interests of justice favour the very good policy reasons for the operation of the Statute of Limitations, and that the adverse impact of the Statute is not a special circumstance, and may not be relied on by the plaintiff.

Submissions of the Third Defendant

77. The third defendant cites what it describes as the helpful observations of Haughton J. in Murphy regarding the “special circumstances” criterion. It contends that the plaintiff’s solicitors had not even made reasonable efforts at service at the time of the application for renewal in June 2021, but even if they had, that of itself would not amount to special circumstances for the purposes of O. 8 of the Rules.

78. As regards the issue of the defendants having been given notice of the proceedings, the third defendant’s contention is that the fact that a party may have had notice of proceedings during the period when they were not served should exceedingly rarely of itself ever amount to a special circumstance which justifies renewal. It contends that if any form of informal or irregular service, which happened to bring the proceedings to the defendant’s attention – such as sending a summons in the post to Switzerland – were sufficient to establish special circumstances, that would significantly undermine the Rules on service, which it is said are not difficult to find nor to understand, and which reflect international or EU law obligations. Such an approach might incentivise prospective plaintiffs to attempt informal service in the hope that the defendant does not object, safe in the knowledge that the summons will be renewed and they will get another chance at proper service.

79. The third defendant submits that an excessive focus on the lack of prejudice to the defendant risks reversing the burden of proof on the application to renew, and would undermine the purpose of the revised Order 8, which was introduced to impose a higher test on renewal applicants. It submits that the Court of Appeal was correct to conclude that a judge should not excessively focus on the issues of notice of proceedings and asserted lack of prejudice in considering special circumstances, and that informal service or lack of prejudice should very rarely of themselves be sufficient to amount to special circumstances.

80. The third defendant submits that it has been established that mistakes or misconceptions by a plaintiff’s lawyers will rarely amount to special circumstances, and even more so where the defendant has insisted on compliance with the rules on service. It contends that the burden is on the plaintiff to demonstrate special circumstances which justify the extension, and that if special circumstances are established, the Court is then required to consider the interests of justice, which will involve an assessment of prejudice to both sides in the event of renewal or non-renewal.

81. As regards the O. 11A, r. 4 leave issue, the third defendant states that leave to serve out against it was not granted until the 21st June, 2021, almost a year after the personal injuries summons had expired and four months after the plenary summons had expired. It suggests that neither summons could therefore have been validly served before expiration, and it followed that there had been no bona fide attempts at service before they expired. As regards the effect of the Brussels Regulation and the Lugano Convention regimes as incorporated into Irish law through Order 11A, it states that these regimes allow a plaintiff to serve proceedings over which the Irish court appears to the plaintiff to have jurisdiction without the leave of the court, but argues that such proceedings will still require to be validly served. It is submitted that arguing in the abstract that the Brussels Regulation or the Lugano Convention regimes confer jurisdiction without reference to service is irrelevant, where the proceedings are unable to be advanced without being served.

82. The third defendant takes issue with the plaintiff’s submissions that questions of service and jurisdiction can be analysed separately, stating that this ignores the practical reality of how civil litigation works in Ireland. It is submitted that validity of service is always the first stage of the inquiry, and that jurisdiction is never assessed in isolation before service is properly effected.

83. The third defendant submits that special circumstances cannot be established on the facts by the plaintiff. It contends that this is due to two fundamental mistakes made by the plaintiff’s former lawyers, firstly in overlooking the requirement to seek leave to serve out, and secondly in misunderstanding the requirements as to service on a Swiss defendant such as the third defendant. It states that even after the third defendant insisted on strict service in December 2019, the plaintiff’s solicitor never realised that they were required to seek leave, or that service would require to be effected under the Hague Convention rather than the EC Regulation. While the plaintiff somehow managed to directly request the Swiss authority to effect an irregular form of service on the third defendant in November 2020, by that time the personal injuries summons had expired and no leave to serve the plenary summons had been granted. It is submitted that on no version of matters could it be said that the plaintiff’s solicitors had made reasonable efforts at service; the difficulty in effecting service was entirely self-induced, and could at any time have been resolved by consulting the Rules.

84. The third defendant concludes that the requirement for this application arises solely from a catalogue of errors on the part of the plaintiff’s lawyers, which is insufficient to establish special circumstances. It argues that if a straightforward or isolated instance of inadvertence or oversight by a lawyer will rarely amount to special circumstances, then it should follow that a consecutive series of errors can hardly qualify.

The Oral Hearing and Supplemental Submissions

85. During the oral hearing of this appeal members of the Court asked the respective counsel for the parties about the Court of Appeal’s reliance upon the O. 11A, r. 4(1) point, and the significance which the Court below placed upon the plaintiff’s apparent non-compliance with that provision, and whether a requirement for the plaintiff to seek leave to serve the second defendant and the third defendant out of the jurisdiction was compatible with the Brussels Regulation and the Lugano Convention. The Court decided to adjourn the hearing and gave all parties an opportunity to make further written submissions, to be followed by a further short oral hearing. The parties were asked by the Court to address certain matters, including the interpretation, status and effect of O. 11A, r. 4(1) having regard to the Brussels Regulation and the Lugano Convention.

86. The supplemental submissions of behalf of the plaintiff consider both the literal interpretation and an alternative interpretation of O. 11A, r. 4(1) (“the rule”). It is submitted that a literal interpretation of the wording of the rule taken alone suggests that the reference to the provisions of O. 11 being applicable to “each and every such codefendant” is most naturally understood as a reference to all the defendants in the proceedings to which the provisions of O. 11A apply.

87. The plaintiff, however, goes on to consider an alternative interpretation suggested by Collins J. at the oral hearing (Transcript 25th February, 2025, p. 125). This suggestion was that the reference to “each and every such co-defendant” at the end of the rule was a reference back to the earlier part of the rule and the co-defendants that are not domiciled in a Member State of the European Union or a Contracting State of the Lugano Convention. The plaintiff submits that the rule may be considered ambiguous by reason of a number of contextual factors, and given that ambiguity, the alternative interpretation canvassed at the hearing would be preferable.

88. In the supplemental submission on behalf of the second defendant it is accepted that the plaintiff’s proceedings fell within O. 11A, because the proceedings were governed by Article 1 of the Brussels Regulation. However, it is submitted that the proceedings do not fall within the limited circumstances, as described in O. 11A, r. 2, in which service of an originating summons (or notice thereof) is permissible without the leave of the Court. The second defendant suggests that the claim made by the summons was not one “which, by virtue of Regulation No. 1215/2012, the Court has power to hear and determine”. The second defendant further submits that there is no reason to think that a requirement to obtain leave in certain limited circumstances before serving out of the jurisdiction, even where the Brussels Regulation applies, is incompatible with EU law.

89. The third defendant, in its supplemental submissions, submits that the words “each and every such co-defendant” in the final sentence of O. 11A, r. 4(1) are a reference to every co-defendant in the proceedings, and not merely those co-defendants who are not domiciled in an EU Member State or a Lugano Convention Contracting State. The practical effect of that suggested literal interpretation, it is said, is that where the claim against some foreign defendants is governed by Brussels and Lugano, but the claim against other foreign defendants is governed by O. 11, leave to serve the proceedings outside the jurisdiction is required in respect of all defendants. In the alternative if the Court concludes that the rule is ambiguous, the third defendant submits that this suggested interpretation should be preferred, on two principal grounds. Firstly, because any other interpretation would render the rule redundant and would deprive it of practical purpose. Secondly, because the rule can then operate as a convenient filter, giving the Irish Courts an initial opportunity to assess the interaction between Brussels/Lugano claims on the one hand and O. 11 claims on the other.

Decision

90. It is clear from the determination of this Court granting leave that the net issue arising in this appeal is the meaning of the phrase “special circumstances” as appears in O. 8, r. 1(4) of the Rules in relation to the so-called “gateway” threshold and the test for the renewal of a summons, and the application of that test in the unusual circumstances of this case, involving the renewal of two different summonses against two foreign defendants.

The Relevant Principles

91. Order 8 now provides, since amendment in 2019, in relevant part as follows:

“Renewal of Summons

1.(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.

…

2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.”

92. While the amended version of O. 8 has not been previously considered by this Court, it has been the subject of some judicial consideration in the Court of Appeal. In Murphy, Haughton J. stated as follows:

“ ‘Special Circumstances’

69. Order 8 r. 1(4) does not assist in identifying what may amount to ‘special circumstances which justify an extension’. However, some general observations may be made.

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 elapses, 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.

…

74. …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 the hardship that may result for a plaintiff if renewal is refused.

75. This reflects the principle enunciated by Finlay Geoghegan J. in Chambers v. Kenefick [2005] IEHC 526, in describing the approach the Court should take under the original O. 8 to deciding ‘other good reason’: ‘(8)…Firstly, the Court should consider is there good reason to renew the summons. Secondly, if the Court is satisfied that there are facts and circumstances which either do or potentially constitute a good reason to renew the summons then the Court should move to what is sometimes referred to as the second limb of considering whether, because of the good reason, it is in the interests of justice between the parties to make an order for the renewal of the summons. Thirdly, in considering the question of whether it is in the interests of justice as between the parties to renew the summons because of the identified good reason, the Court will consider the balance of hardship for each of the parties if the order for renewal is or is not made.’ That decision has been followed on many occasions…

76. In my view this is not a second tier or limb to the test. The need for the Court to consider under sub-rule (4) the interests of justice, prejudice and the balancing of hardship is in my view encompassed by the phrase ‘special circumstances [which] justify extension’. Thus there may be special circumstances which might normally justify a renewal, but there may be countervailing circumstances, such as material prejudice in defending proceedings, that when weighed in the balance would lead a Court to decide not to renew. The Court should consider and weigh in the balance all such matters in coming to a just decision.

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 dependent 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”.

78. Finally, provided the trial judge is satisfied that ‘special circumstances’ exist, the jurisdiction to grant leave to renew is discretionary. It follows from that that this Court, in reviewing a decision to renew a summons, should afford the trial judge a margin of appreciation and should not interfere with the decision unless the trial judge has erred in principle or there is a clear error of fact or breach of the rules of natural justice.”

93. In Nolan, Noonan J. quoted from para. 76 of Haughton J.’s judgment in Murphy, regarding there being no second limb to the test, and stated as follows (at para. 25): “Counsel for the plaintiff submitted that this meant that that whether a special circumstance existed was to be considered in tandem with the question of prejudice, there being no second limb to the test, and that the law had “moved on” since Chambers was decided. In my judgment, this is incorrect and a misinterpretation of Murphy. Haughton J. recognised that special circumstances alone are not enough and placed emphasis on the requirement for those circumstances to justify extension. His reference to there not being a second tier or limb to the test refers to the fact that special circumstances and the justification for renewal are not two separate and distinct matters, but fall to be considered together in the analysis of whether it is in the interest of justice to renew the summons. Prejudice is a component of that analysis.

26. However, before that analysis can be arrived at, it must be established that there are special circumstances. This follows from the Court’s approval of the Chambers approach and accords with common sense. The plaintiff’s contention that the Court is required to consider prejudice from the outset is to put the cart before the horse and would lead to a result diametrically opposed to the clear intent of the new rule.”

94. The comments of Haughton J. and Noonan J. were adopted more recently by Butler J. in Kearns v. Evenson [2023] IECA 297 (“Kearns”). At para. 100 she stated as follows: “From these judgments it appears that the onus is on a plaintiff to establish that there are special circumstances which may potentially justify the renewal of the summons. However, in considering whether those circumstances do provide such justification, the Court must consider and weigh in the balance any countervailing circumstances for prejudice asserted by the defendant. This is not a two-stage process and certainly not a process at which different tests apply at each stage but is part of a broader consideration as to whether it is in the interests of justice that the summons be renewed in the particular case.”

95. I am broadly in agreement with the above statements from the Court of Appeal authorities, and might simply add the following comments. Firstly, I endorse the statement of Butler J. in Kearns that the test for renewal of a summons is not a two-stage process, and is certainly not a process of which difficult tests apply at each stage. It seems to me that O. 8, r. 1(4) provides for one test or one question: are there special circumstances which justify an extension? While it is clear that a plaintiff must identify special circumstances, in my opinion it is probably not helpful to speak of a “gateway requirement”, at least in the sense of some form of separate requirement that a party seeking renewal must establish that special circumstances exist taken alone. Instead, the Court should view the special circumstances put forward in conjunction with the balance of the test in O. 8, r. 1(4) as a single overall assessment as to whether it is in the interests of justice that the summons be renewed. In other words, do those special circumstances justify an extension, having regard to all other background factors such as the interests of justice, prejudice to either party and the balance of hardship?

96. Secondly, I would highlight and endorse para. 77 of Haughton J.’s judgment in Murphy. I agree that whether inadvertence on the part of a plaintiff, or a plaintiff’s solicitors, can ever amount to special circumstances is very fact dependant, and that it is probably not helpful to speculate in a vacuum. Notwithstanding same, I also agree with the view expressed by Haughton J. that, as far as legal advisors are concerned, inadvertence or inattention, for example in effecting service of the summons, will rarely constitute special circumstances, given that such inadvertence or inattention would not normally have reached the former threshold of “good reason” under the previous version of O. 8. That is not to say that inadvertence or inattention can never amount to special circumstances, but it would take something exceptional or extraordinary to amount to same.

The Order 11A, rule 1(4) leave issue

97. As set out above, it was common case, in the course of the hearing of this matter in the High Court, that leave to serve out of the jurisdiction should have been sought in respect of all three defendants, pursuant to O. 11A, r. 4(1) of the Rules. It is clear that this apparent failure to obtain leave was treated like a knockout blow in the Court below, with Allen J. describing (at para. 111) that failure as “in truth…the beginning and the end of the matter”.

98. It may be useful to reprise the text of O. 11A, r. 4(1) at this juncture: “4.(1) Where two or more defendants are parties to proceedings to which the provisions of this Order apply, but not every such co-defendant is domiciled in:

(i) A Member State of the European Union, or

(ii) A Contracting State of the Lugano Convention,

for the purposes of Regulation No. 1215/2012, the Lugano Convention, or the 1998 Act, then the provisions of Order 11 requiring leave to serve out of the jurisdiction shall apply to each and every such co-defendant.”

99. The net question of interpretation which arises is whether the reference to the O. 11 requirement for leave being applicable to “each and every such co-defendant” is a reference to every co-defendant (the so-called literal interpretation), or alternatively is a narrower reference to each and every co-defendant that is not domiciled in a Member State of the European Union or in a Contracting State of the Lugano Convention (the so-called alternative interpretation).

100. The principles governing statutory interpretation have been recently restated by this Court in Heather Hill Management Company CLG v. An Bord Pleanála [2022] 2 ILRM

313 (“Heather Hill”), and these principles would apply equally to the interpretation of secondary legislation such as the Rules of the Superior Courts. In his judgment for the Court, Murray J. cited with approval the judgment of McKechnie J. in The People (DPP) v. Brown [2019] 2 I.R. 1, and he summarised the essential points which McKechnie J. had made as follows (at para. 106): “(i) The first and most important port of call is the words of the statute itself, those words being given their ordinary natural meaning…

(ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include ‘the immediate context of the sentence within which the words are used; the other subsections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including…LRC or other reports; and perhaps…the mischief which the Act sought to remedy…

(iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language…

(iv) If that exercise in interpreting the words (and this includes interpreting them in the light of that context) yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted…”

101. In my opinion the application of the above principles leads me to the clear conclusion that the so-called alternative interpretation of O. 11, r. 4(1) is the correct interpretation. I say this for the following reasons.

102. Firstly, the ordinary and natural meaning of the words used in the rule indicates to me that the O. 11 requirement for leave is made applicable to each and every “such” codefendant, i.e. not each and every co-defendant in general, but a category or sub-group of the total group of co-defendants, some of which are domiciled in a Member State of the European Union or a Contracting State of the Lugano Convention, with the consequence that the provisions of O.11A apply and not O. 11. It seems to me reasonably clear that the reference to each and every “such” co-defendant is a reference back to “such” a co-defendant as referred to earlier in the rule, i.e. such co-defendant as is not domiciled in a Member State of the European Union or a Contracting State of the Lugano Convention. The O. 11 requirement is applicable to each and every such codefendant, not each and every co-defendant to the proceedings in general. In this way it could be said that the correct literal interpretation of the rule is actually the same as the alternative interpretation.

103. Secondly, even if I am wrong about the literal interpretation of the words used, the other principles set out in Heather Hill appear to me to support the same conclusion. As regards context, the context of O. 11A, r. 4(1) is its location within O. 11A, which provides that service out is permissible without the leave of the Court pursuant to O. 11 in proceedings governed by the Brussels Regulation or the Lugano Convention, and that context supports a narrower interpretation of the rule.

104. Furthermore, if I am wrong about the ordinary and natural meaning of the words used, and the text should instead be considered to be ambiguous, then the Court should seek to discern the intended object of the rule. In that regard it seems to me that the purpose of the rule was to clarify what was to happen when one had “mixed defendant” proceedings, i.e. proceedings involving one or more defendant domiciled in a Member State of the European Union or in a Contracting State of the Lugano Convention, but also involving one or more co-defendants not so domiciled, and to confirm (perhaps for the avoidance of doubt) that the O.11 requirement for leave would continue to apply to each and every such co-defendant not so domiciled.

105. Thirdly, it is important to note that O. 11A is a provision of national law designed to implement the provisions of EU law measures, i.e. the Brussels Regulation and the Lugano Convention. The Irish Courts are therefore required to adopt an interpretation of O. 11A, r. 4(1) in conformity with those measures, insofar as it is possible to do so. The previous interpretation of the rule, as formerly relied upon by the parties and by the Court below, would not be in conformity with a right to sue outside the jurisdiction conferred by those EU measures, as it would make that right dependent upon the exercise of the High Court’s discretion pursuant to the criteria set out in O. 11 of the Rules.

106. In the first place, the application of the discretionary/forum conveniens criteria in O. 11, r. 2 and r. 5, would not be consistent with the criteria arising under the Brussels Regulation and the Lugano Convention. Secondly, the “gateways” for service out in O.

11 clearly differ from the “gateways” in Brussels/Lugano. The construction of O. 11A, r. 4(1) contended for by the second defendant and the third defendant would potentially result in the High Court refusing leave to a Brussels or Lugano plaintiff whose case came within those measures. Therefore, it cannot bear that meaning. On the other hand, the wording of the rule does make it possible to arrive at a conforming interpretation, i.e. the interpretation set out at para. 102 above.

107. Fourthly, as regards the mischief which O. 11A, r. 4(1) sought to remedy, it is very hard to see what sense it makes to have one sub-category of defendants who are domiciled in a Member State of the European Union or a Contracting State of the Lugano Convention being made subject to the O. 11 leave requirement, just because they are sued in combination with an O. 11 defendant. No satisfactory answer to this question from the Court was received during the oral hearing.

108. In conclusion on this issue, the Court below therefore fell into error in treating O.11A, r. 4(1) as applicable in respect of the second defendant and the third defendant, and in going on to treat the failure to obtain leave as a knock-out blow to renewal of the summonses. It remains necessary to consider the application of the test for renewal in the absence of that erroneous knock-out blow.

Application of the Principles

The Second Defendant: Special Circumstances which justify an extension?

109. With regard to the second defendant, to recap, the plaintiff first brought personal injury proceedings against the second defendant, commenced by a personal injuries summons issued on the 3rd July, 2019. He later brought protected disclosure proceedings, commenced by a plenary summons issued on the 7th February, 2020. After the latter proceedings were issued in February, 2020 the plaintiff’s solicitor decided to effect service of both sets of proceedings directly on the second defendant in Sweden, pursuant to the EC Regulation.

110. As set out in detail earlier in this judgment, the Swedish receiving agency was obliged to effect service of the summonses within one month of receipt, or else to immediately inform the transmitting agency, whereupon the delay could be explained to the plaintiff. However, in this case the agency did not effect service on the second defendant until the 1st September, 2020, two months after expiry of the personal injuries summons on the 2nd July, 2020. It is important to note that the plaintiff had no control over this at all, and the uncontradicted evidence is that the plaintiff’s solicitor was unaware of this delay.

111. The order of McDonald J. renewing the personal injuries summons recites that the Court was satisfied that special circumstances existed which justified the renewal, namely “the difficulty in effecting service of the proceedings” on the second defendant. Upon the second defendant’s motion to set aside that order, the trial judge was similarly satisfied and she refused the relief sought.

112. I agree with the trial judge that the difficulties encountered in serving the personal injuries summons on the second defendant, which were essentially due to the delay on the part of the Swedish receiving agency in effecting service within one month as required under the EC Regulation, amount to special circumstances that prima facie could justify renewal of the summons. The circumstances are special, in that they are circumstances beyond the ordinary or the usual, given that in normal circumstances one could expect the agency to have effected service within one month, or alternatively to have communicated the failure to do so.

113. The net question then is whether those special circumstances do in fact justify a renewal, having regard to all background factors such as prejudice to either party and the balance of hardship. Again, I agree with the trial judge’s assessment of this question, summarised at para. 36 above. As Egan J. pointed out, the second defendant had notice of the personal injury proceedings immediately after their commencement, notwithstanding that same had not been formally served, and indeed had been aware of the issues arising for several years beforehand. In the circumstances it is difficult to see any real prejudice to the second defendant in granting the renewal.

114. On the other side of the fence, I agree with the trial judge that the fact that the proceedings would in all likelihood be barred under the Statute of Limitations, if the renewal were to be set aside, is an appropriate, though not in itself a decisive, consideration. Overall, I fully agree with her conclusion that it would be entirely contrary to the interests of justice to set aside the order for renewal of the personal injuries summons.

115. As regards the renewal of the plenary summons in the protected disclosure proceedings, the position is more straightforward. While the personal injuries summons had expired by the time of service on the 1st September, 2020, the service of the plenary summons on the second defendant predated the expiry of that summons in February, 2021 by five months. In the circumstances there was in fact no necessity from a timing perspective to apply for a renewal of that summons, and the application was made because of a perceived irregularity in how service had been effected, having regard to the misconceived O. 11A, r. 4(1) issue. In any event, the plenary summons was in fact renewed by the order of McDonald J. made in June 2021, and Egan J. was clearly correct in refusing to set aside that order, even if it was an unnecessary order. The Third Defendant: Special Circumstances which justify an extension?

116. The circumstances regarding service of the two summonses on the third defendant may be recalled as follows. The personal injury proceedings against the third defendant were commenced by the personal injuries summons issued on the 3rd July, 2019, and the protected disclosure proceedings by a concurrent summons issued on the 7th February, 2020. There then followed the February, 2020 request to the Irish transmitting agency to effect service of both sets of proceedings on the second defendant outside the jurisdiction, pursuant to the EU Regulations.

117. At para. 79 of her judgment, the trial judge appeared to consider that the said request to the Irish transmitting agency also constituted a request to effect service of both sets of proceedings on the third defendant, in circumstances where the form identified the addressee as the third defendant, even though the appropriate method of service on the third defendant, who was domiciled in Switzerland, was service pursuant to the Hague Convention rather than pursuant to the EC Regulation. However, for the reasons set out by me at para. 17 above, I would not characterise the February 2020 request as an attempt to effect service on the third defendant. As previously noted by me at para. 17, the plaintiff’s solicitor never averred in his affidavit that the February, 2020 procedure was in fact an attempt to serve the third defendant, and he accepted that the EC Regulation does not apply to the third defendant.

118. In any event, service of the personal injuries summons was not effected on the third defendant prior to the expiry of that summons in July, 2020. The plaintiff’s solicitor only began to take steps to serve the personal injury proceedings upon the third defendant in Switzerland pursuant to the Hague Convention in October, 2020, when he wrote to the Swiss central authority directly for that purpose. However, in doing so he failed to comply with the correct procedure under the Hague Convention/O. 11E of the Rules by bypassing the Master of the High Court, the Irish central authority, who must certify certain matters before transmission of the request to the foreign central authority. Notwithstanding this irregularity, the Swiss central authority confirmed in November, 2020 that the personal injuries summons had been served on the third defendant in conformity with Article 6 of the Hague Convention.

119. The order of McDonald J. dated the 21st June, 2021, again cites “the difficulty in effecting service” of the personal injury proceedings on the third defendant as being the special circumstances which justified an extension. In this case, however, Egan J. was not satisfied that there were special circumstances which justified renewal of the personal injuries summons. I agree with her conclusion, albeit for slightly different reasons as follows.

120. It seems to me that the special circumstances which prima facie could justify renewal of a summons must normally be circumstances which arise in the period of twelve months during which the summons was in force. In the present case, however, the reality of the situation appears to me to be that no steps were taken to serve the personal injuries summons on the third defendant in Switzerland pursuant to the Hague Convention prior to the expiry of that summons in July, 2020.

121. In his principal affidavit sworn on the 21st May, 2021, the plaintiff’s solicitor avers (at para. 38) that as of the 23rd January, 2020, “we had understood the rules for service on the second and third named defendants to be contained in the Service Regulation (Council Regulation (EC) No. 1393/2007) and the Hague Service Convention, respectively”. However, he never explains the circumstances whereby no steps were taken to serve the personal injuries summons on the third defendant, pursuant to the Hague Convention, between the 23rd January, 2020, and the expiry of that summons in July, 2020. In the absence of any such evidence, I do not think it was open to the High Court to make a finding that there were special circumstances which justified the renewal of the summons.

122. As regards the renewal of the concurrent summons as against the third defendant, issued on the 7th February, 2020, the circumstances regarding service of this summons on the third defendant mirror the circumstances regarding service of the personal injuries summons, with one essential difference. The essential difference is that the protected disclosure proceedings were served on the third defendant in Switzerland in November, 2020 well before the expiry of that summons in February, 2021, albeit that this service involved some irregularity.

123. The trial judge considered that there were two aspects of irregularity accompanying the service in question. Firstly, irregularity arising from the O. 11A, r. 4(1) leave issue and, secondly, irregularity arising from the O. 11E issue. As it now transpires, the first issue did not in fact involve an irregularity for the reasons set out above. The latter issue presumably relates to the plaintiff’s solicitor having simply bypassed the Irish central authority and having forwarded the request for service directly to the Swiss central authority.

124. Egan J. felt that these irregularities around service did not prevent the establishment of special circumstances. She held that although objection was taken shortly after service by the third defendant to the irregularities in service, the plaintiff was entitled to rely upon the fact that, as the plenary summons had not expired prior to service, the service effected, although irregular, could if necessary be deemed good or corrected in some other way. At para. 101 of her judgment she concluded as follows: “In my view special circumstances are established insofar as concerns the renewal of the plenary summons as against the third defendant. I am further satisfied that these special circumstances justify the renewal of the summons. As with the second defendant, the key point is once again that service, although irregular, was in fact effected upon the third defendant before the expiry of the summons. I am also influenced by the absence of specific prejudice on the part of this defendant given its early notification of the full particulars of the claim.”

125. While I feel that renewal of this summons is the closest call arising, on balance I would uphold the decision of the trial judge, for the following reasons.

126. As set out above, service of the concurrent summons was effected on the third defendant on the 10th November, 2020. By letter dated the 17th November, 2020, the third defendant’s solicitors wrote to the plaintiff’s solicitors and queried whether all steps required to effect proper service under the Hague Convention had, in fact, been taken in respect of both sets of proceedings. At this stage, the plaintiff’s solicitors would still have had almost three months to re-serve the summons properly in full compliance with the Hague Convention/O. 11E procedures. However, by this time, they appeared to have an additional, and perhaps more significant, problem, in that they had not obtained leave to serve the third defendant outside the jurisdiction, a supposed problem identified by the solicitors for the third defendant as far back as their letter dated the 6th March, 2020.

127. While I have concluded that this supposed problem was in fact misconceived, it was undoubtedly prevalent among legal practitioners at the time, as evidenced by the firm position advanced by the solicitors for the second defendant and for the third defendant. It is noteable that the Central Office staff appeared to have understood the position correctly, and also that McDonald J. was “puzzled” by the interpretation of O. 11A, r. 4, being advanced when the application to renew was ultimately made to him in June, 2021.

128. In any event, after November, 2020, the plaintiff’s solicitors changed tack, and adopted the position advanced by the solicitors for the third defendant, to the effect that it would be necessary to seek an order granting leave to serve the proceedings outside the jurisdiction on the third defendant. The consequence, as it must have appeared to them at the time, was that the irregularity arising from the O. 11E issue could not be corrected until leave was obtained. Overall, I think it fair and reasonable to view these circumstances involving a very widespread mistake of law, as opposed to mere inadvertence or inattention, as constituting special circumstances that, prima facie, could justify renewal of the summons.

129. Secondly, in my opinion those special circumstances do in fact justify a renewal of the summons, having regard to all background factors such as prejudice to either party and the balance of hardship. Like the trial judge, I would be influenced by the absence of any real prejudice on the part of the third defendant, given its early notification of the full particulars of the claim, and the fact that there was no suggestion that the absence of a certificate from the Master in fact caused any real prejudice to the third defendant, and given the key point that service, although irregular, was in fact effected on the third defendant before the expiry of the summons. In the circumstances it seems to me that it would be contrary to the interests of justice to set aside the order for renewal of this summons.

Conclusion

130. In conclusion, therefore, for all of the above reasons, I would:

(i) As regards the second defendant, allow the appeal and substitute an order pursuant to O. 8, r. 2 of the Rules refusing to set aside the renewal of the personal injuries summons or the plenary summons as against the second defendant;

(ii) As regards the third defendant, allow the appeal in part and substitute an order pursuant to O. 8, r. 2 of the Rules refusing to set aside the renewal of the concurrent summons as against the third defendant;

(iii) As regards the third defendant, dismiss the appeal against the order of the Court of Appeal affirming the order of the High Court setting aside the renewal of the personal injuries summons as against the third defendant;

(iv) Make such further or other orders as may be appropriate following any further submissions of the parties.