High Court dismisses renewal of personal injury summons due to significant time lapse and solicitor negligence.

THE HIGH COURT

[2026] IEHC 81

Record No. 2021/6729P

BETWEEN

EAMON MAGUIRE

PLAINTIFF

AND

PSW SALES AND LOGISTICS LIMITED, CORK EXPRESS PALLETS

LIMITED, JAMES ROCK T/A AS J&R COURIERS, PRIMELINE

LOGISTICS UNLIMITED COMPANY

DEFENDANTS

JUDGMENT of Mr. Justice Barr delivered electronically on the 18th day of February 2026.

Introduction.

1. This judgment deals with applications brought by the first and second named defendants and by the fourth named defendant respectively to set aside the order made on 12 May 2025 renewing the personal injury summons herein.

2. In very broad outline, the relevant facts can be stated as follows: on 19 October 2017, the plaintiff suffered personal injuries in a workplace accident while he was assisting in the unloading of pallets of cigarettes at a warehouse owned and operated by the first and second named defendants. It is alleged that due to the negligence of the forklift driver, who was an employee of the first and second named defendants, the plaintiff was injured when his right forearm and hand came into contact with the arms of the forklift truck.

3. The plaintiff instructed his former solicitor, Mr. McS, in relation to the matter. Having obtained an authorisation from PIAB, proceedings were instituted by issuance of a personal injury summons on 14 December 2021. The plaintiff's former solicitor did not serve the proceedings within the time allowed by the Rules of the Superior Courts for service of the summons. The personal injury summons had been put in the post addressed to each of the defendants on 13 December 2022. The summonses were not received by the first and second named defendants or the fourth defendant until 15 December 2022, which was just outside the time allowed for service of the summons under the rules.

4. What followed thereafter was a bizarre set of events wherein the plaintiff's former solicitor took no step to renew the summons. Nor did he transfer the file to the plaintiff's current solicitor, despite having been requested to do so by letter dated 21 April 2022.

5. Eventually, through the actions of the Law Society of Ireland, the file was obtained from the plaintiff's former solicitor. It was furnished to the plaintiff’s current solicitor on 18 February 2025. The current solicitor brought an application to renew the summons before the High Court (O'Donnell J) on 12 May 2025. The summons was renewed by order of the court on that date. The special circumstances recited in that order were: “the difficulties experienced by the plaintiff retrieving his file from the previous solicitors.” Thereafter, the summons was served promptly on the defendants.

6. By notices of motion dated 18 June 2025 and 8 July 2025, the fourth named defendant and the first and second named defendants respectively have brought the within application seeking to set aside the order renewing the summons.

Summary of Submissions.

7. It was submitted on behalf of the moving party defendants that the personal injury summons herein ought not to have been renewed due to the following matters: no explanation had been given for why the summons had not been served on each of the defendants within the time prescribed by the rules. In the absence of any explanation being forthcoming, it was submitted that it could only be assumed that this was due to inadvertence on the part of the plaintiff's former solicitor. It was submitted that the case law had established that in general inadvertence on the part of a solicitor is not a special circumstance justifying the renewal of a summons.

8. It was submitted that the solicitor acting for the first and second named defendants had written to the plaintiff's former solicitor by letter dated 21 December 2021, confirming that they had authority to accept service of the proceedings on behalf of those defendants. By further letters dated 23 May 2022, 21 September 2022 and 6 December 2022, the solicitors acting for the first and second named defendants requested service of the proceedings upon them.

9. It was submitted that notwithstanding that a further letter had been sent by the solicitors acting for the first and second named defendants on 6 January 2023, pointing out that the summons had not been properly served within the time permitted under the rules and that it would be necessary to have the summons renewed; no application was made to renew the summons by any solicitor acting on behalf of the plaintiff until 12 May 2025.

10. The defendants acknowledged that while the plaintiff's current solicitors had cited the great difficulties encountered by them in obtaining the litigation file from the plaintiff's former solicitors, notwithstanding having requested same and having furnished a signed authority from the plaintiff to the former solicitor on 21 April 2022; and had only received the file from the Law Society on 18 February 2025; it was submitted that if there was wrongdoing on the part of the plaintiff's former solicitor in this regard, that was not a basis on which to renew the summons. It was submitted that if there had been wrongdoing on the part of the plaintiff's former solicitor and as a result the plaintiff’s summons could not be renewed, the plaintiff would have an alternative remedy against his former solicitor in this regard.

11. It was submitted on behalf of the defendants that while there had been a purported but invalid service of the personal injury summons in December 2022, they had heard nothing thereafter from the plaintiff or his former solicitor, until approximately 2.5 years later in March 2025, when they were notified by the plaintiff's current solicitor that they intended to seek to bring an application to renew the summons.

12. It was submitted that the defendants had suffered prejudice due to the inordinate delay in having the summons renewed, because they would have to prepare their defence for an action that would come on for hearing nine or ten years post-accident. It was submitted that their witnesses would be prejudiced in that their memories would have faded over time. In addition, relevant documents may be missing at this remove.

13. The first and second defendants further submitted that they had suffered specific prejudice in that the forklift truck which had been leased at the time of the accident, had long since been returned to its owner. It was submitted that in all the circumstances, the renewal of the summons should be set aside.

Submissions on behalf of the Plaintiff.

14. In response, the plaintiff's current solicitor has sworn an affidavit exhibiting correspondence showing that they had received instructions to take over the file in April 2022, but had encountered inordinate difficulties in obtaining the file from the plaintiff's former solicitor.

15. It was only obtained by the Law Society after it had brought an application to the High Court. It had been provided to the plaintiff's current solicitors on 18 February 2025. They had written to the defendant’s solicitors by letter dated 13 March 2025, informing them of their intention to bring an application to renew the summons. That application had been moved in the High Court on 12 May 2025.

16. It was submitted that in these extraordinary circumstances, the order of O'Donnell J. renewing the summons on 12 May 2025, should stand.

17. In view of the submissions made on behalf of the plaintiff, it is necessary to set out a detailed chronology of both the steps taken in the proceedings to date, and the efforts made by the plaintiff's current solicitor to obtain the file from the plaintiff's former solicitor.

Chronology of Steps Taken in the Action.

18. As regards the exchange of pleadings and correspondence inter partes, the relevant chronology would appear to be as follows: on 10 October 2017, the plaintiff suffered the accident. On 8 October 2019, a claim was received by the Injuries Board on his behalf. It had been submitted by the plaintiff's former solicitor. On 15 June 2021, the Injuries Board furnished an authorisation to the plaintiff permitting him to institute proceedings.

19. The personal injury summons was issued on 14 December 2021. On 7 April 2022, the plaintiff instructed his current solicitors to act on his behalf in the proceedings. To that end, they wrote to the plaintiff's former solicitor by letter dated 21 April 2022, informing him that they had been instructed to take over carriage of the action. They enclosed a signed authorisation from the plaintiff.

20. On 13 December 2022, the plaintiff’s former solicitor sent the personal injury summons in the post to the defendants’ solicitors. They received the summons on 15 December 2022.

21. On 6 January 2023, the solicitor acting for the first and second defendants wrote to the plaintiff's former solicitor pointing out that the summons had been served outside the relevant time period and therefore it had lapsed. It was pointed out that an application would have to be made by the plaintiff to have the summons renewed. The letter confirmed that they had authority to accept service of the renewed summons.

22. By letter dated 22 March 2023, the solicitor acting for the fourth defendant wrote to the plaintiff's former solicitor pointing out that the personal injury summons had not been served in time. A follow-up email was sent by that solicitor on 22 June 2023. There was no response to either piece of correspondence.

23. On 18 February 2025, the plaintiff's current solicitor received the file from the Law Society. The plaintiff’s solicitor wrote to the solicitors acting for the respective defendants by letter dated 13 March 2025 informing them that they intended to bring an application to have the summons renewed.

24. By letter dated 21 March 2025, the solicitors acting for the first and second named defendants replied, stating that they did not consent to renewal of the summons. On 8 April 2025, the plaintiff's current solicitor formally came on record in the proceedings. On 11 April 2025, the solicitors acting for the fourth defendant wrote stating that there had been inordinate delay in the matter and that they did not consent to the renewal of the summons.

25. On 12 May 2025, the plaintiff's current solicitor and counsel made an application to the High Court for renewal of the summons. That order was granted.

26. As already noted, by notices of motion issued on 18 June 2025 and 8 July 2025, the defendants sought orders setting aside the renewal of the summons. These motions were heard in the High Court on 28 January 2026.

Chronology of Steps taken to Obtain the File.

27. As already noted, the plaintiff's current solicitor wrote to the plaintiff's former solicitor by letter dated 21 April 2022, informing him that they had received instructions to take over carriage of the action. They furnished a signed authorisation with that letter. By letter dated 22 April 2022, the plaintiff's former solicitor formally acknowledged receipt of that letter and confirmed that the matter was receiving attention.

28. By email dated 16 May 2022, the plaintiff’s current solicitor requested the plaintiff's former solicitor, Mr. McS, to revert so that the transfer of the file might be completed. They sent a further email on 31 May 2022, stating that the matter was urgent. They stated that their client was anxious that the case should be moved on.

29. By further email dated 13 June 2022, the plaintiff’s current solicitor again requested Mr. McS to revert to them in relation to transfer of the file. By letter dated 11 July 2022, the plaintiff's current solicitor wrote to Mr. McS informing him that as no meaningful progress had been made in the matter, they had been instructed to inform him that if they did not receive a substantive reply within a period of 10 days, they had been instructed to make a formal complaint to the Legal Services Regulatory Authority (hereinafter “LSRA”).

30. By letter dated 26 July 2022, the plaintiff's current solicitors made a formal complaint to the LSRA. By letter dated 4 August 2022, the LSRA acknowledged receipt of the complaint and requested further information from the plaintiff's current solicitors. By letter dated 23 August 2022, the LSRA wrote to the plaintiff's current solicitor informing them that they had written to the plaintiff's former solicitor enclosing a copy of the complaint lodged against him. They requested some further information from the plaintiff's current solicitor.

31. On 13 September 2022, the plaintiff's current solicitor sent an email to the LSRA requesting an update in relation to the matter. By email dated 15 September 2022, a response was received from the LSRA stating that they were still waiting to hear from the legal practitioner against whom the complaint had been lodged. The plaintiff was informed that there was a review date for the complaint fixed for 20 September 2022.

32. By letter dated 12 October 2022, the LSRA wrote to Mr. McS in relation to the complaint, requesting a response from him thereto. On 22 October 2022, the plaintiff's current solicitor again requested the LSRA for an update in relation to the complaint.

33. By letter dated 4 November 2022, the LSRA wrote to the plaintiff's current solicitor informing them that they had conducted a preliminary review of the complaint and had determined that the complaint was admissible. This meant that the complaint met the requirements for admissibility. The complaint had been referred on to the Complaints Committee for its consideration. He was informed that the committee’s secretariat would write to him further in that regard.

34. By letter dated 12 December 2022, the plaintiff’s current solicitor requested an update from the LSRA. They responded by letter dated 4 January 2023, wherein they stated that the complaint had been referred to the Divisional Complaints Committee for investigation. That committee would consider the complaint at its meeting to be held on 25 January 2023. A letter of the same date was sent by the LSRA to Mr. McS requesting him to furnish his response to the complaint.

35. By letter dated 15 February 2023, the plaintiff’s current solicitor was informed that the committee had agreed to meet on 8 March 2023 for the purpose of the plaintiff and Mr. McS appearing separately and virtually before the committee. The plaintiff and Mr. McS were asked to confirm whether or not they would be represented at that meeting. They were furnished with the Zoom details for the meeting and with the LSRA protocols for attendance at the meeting.

36. By email dated 19 April 2023, Mr. McS asked the secretary to the complaints committee for one final brief adjournment in the matter. He stated that an issue had arisen that had to be resolved (non-fees related) that should properly be resolved before the file was transferred to the new solicitors. He stated that he proposed to contact the complainant's solicitors that day to seek their agreement to his proposal in relation to transfer of the file, etc. He stated that in these circumstances, he would ask the committee to defer making any final orders in the matter until its next meeting, when he was confident that the matters would be resolved.

37. By letter dated 25 April 2023, Mr. McS was informed by the LSRA that the Complaints Committee had referred the matter for consideration by the Legal Practitioners Disciplinary Tribunal (LPDT). He was informed that he would be contacted by that office in due course. A copy of that correspondence was sent to the plaintiff's current solicitor.

38. On 31 August 2023, the plaintiff's current solicitor again requested the LSRA for an update on the position regarding the plaintiff's complaint against his former solicitor. The LSRA replied by letter dated 29 September 2023, wherein they informed the plaintiff that the matter was queued for preparatory work ahead of referral to the LPDT. The writer stated that he was working through the queue of applications as quickly as possible. He informed the plaintiff that the office or its representatives would be in further contact with him when a further update was available.

39. On 10 May 2024, a further email was sent by the plaintiff's current solicitor to the LSRA seeking an update on the position. A further request in similar terms was sent to the LSRA on 27 June 2024. A further request for information was sent on 28 August 2024. By letter dated 29 August 2024, the LSRA replied stating that while they appreciated that a significant period of time had elapsed since the time when the complaint was first lodged with their office, the plaintiff was asked to note that the LPDT only commenced hearing applications in June 2023. He was informed that the LPDT was an independent body which required establishment under the Legal Services Regulation Act 2015. He was informed that they were endeavouring to progress matters as expeditiously as possible, however there were a number of matters awaiting progression. They were aware of that and were taking what steps they could to expedite matters.

40. On 12 November 2024, the plaintiff's current solicitor sent an email to Mr. Paul Ramsey of Fieldfisher Solicitors in which she stated that she understood that the High Court had made an order granting the Law Society access to Mr. McS’s files. In that regard, the solicitor stated that she would be obliged if they could advise her as to when they might expect a copy of the plaintiff's personal injury file.

41. Mr. Ramsay replied by email dated 18 November 2024, wherein he stated that as it had been the Law Society's application, they were unable to estimate when the plaintiff's current solicitor would receive a copy of the litigation file. He suggested that the solicitor should contact the Law Society directly about their application and the timelines involved for taking up the plaintiff's former solicitor’s files.

42. By email dated 19 November 2024, the Law Society was asked to provide information in the matter. The plaintiff's solicitor stated that she understood that the High Court had made an order granting them access to Mr. McS’s files. She asked them to advise her as to when they might expect to receive a copy of the litigation file.

43. On 20 November 2024, a reply was received from Ms Claire Doheny of the Practice Closures Section of the Law Society stating that they had not received the files of the practice at that time. They asked the solicitor to provide as much information as possible in relation to her client, in terms of his address, what the file was relating to, the parties involved, if relevant, etc. She stated that they were adding all information to an authorities list at that time. That information would help them to locate the client’s file once they had received the files.

44. By email dated 20 December 2024, the plaintiff's current solicitor again asked the Law Society as to when they could expect to receive their client’s file. She stated that they urgently needed to review it to protect their client’s position which was being prejudiced by not having access to the file. She stated that they would appreciate receiving the file as soon as possible.

45. While that is the last piece of relevant correspondence exhibited in the affidavit sworn by Ms Doyle for the purpose of this application, the court understands that the litigation file was transferred from the Law Society to the applicant's current solicitor on 18 February 2025.

The Law.

46. The principles that should be applied by a court when considering whether to renew the summons have been set down by the Supreme Court in Power v CJSC Indigo Tajikistan & Ors. [2025] IESC 55.

47. Delivering the unanimous judgment of the Supreme Court, Woulfe J., stated that the so-called two-step test or "gateway test" that had been applied up to then, whereby an applicant would have to establish special circumstances explaining why the summons had not been served within time and why the application to renew the summons had not been made earlier, and then establish that the interests of justice were in favour of the summons being renewed; was not the correct test. The Supreme Court stated that the correct test was a single test whereby the court should ask whether there were special circumstances which justified renewal of the summons taking into account all the circumstances of the case.

48. Woulfe J. set out the relevant test in the following way at para. 95 of his judgment:

“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?”

49. As to whether inadvertence on the part of a solicitor can amount to special circumstances that would justify renewal of a summons, the authorities prior to the Power case were uniform in their view that save in very exceptional circumstances, inadvertence on the part of a solicitor could not amount to special circumstances that would justify renewal of the summons: see Moynihan v Dairy Gold Co-operative Society Ltd [2006] IEHC 318; Downes v TLC Nursing Homes Limited [2020] IEHC 465; Murphy v HSC [2021] IECA 3 ; Nolan v Trustees of Bridge United AFC [2021] IEHC 335; SW v HSE [2025] IEHC 526; Hadnett v Joyce [2025] IEHC 599; Galvin v Sharif [2025] IEHC 680.

50. The same conclusion was reached by the Supreme Court in the Power case, where Woulfe J. stated at para. 96 that he agreed with the view expressed by Haughton

J. in Murphy, that as far as legal advisers were concerned, inadvertence or inattention, for example in effecting service of the summons, would 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. He stated that that was not to say that inadvertence or inattention could never amount to special circumstances, but it would take something exceptional or extraordinary to amount to same.

51. Finally, in looking at the issue of whether it is in the interests of justice to renew a summons, the court must have regard to both the reasons why the summons was not served within one year of its issue and must also look at the period that lapsed since that time, up to the date on which the application for renewal of the summons was made. In other words, the courts must ask whether there was any delay in seeking to renew the summons after it had expired and, if so, what reason was proffered for that delay. The court must then consider all the circumstances of the case, including prejudice and hardship to the parties, when reaching its decision as to whether the special circumstances in the case justified renewal of the summons.

Conclusions.

52. Having considered the affidavits and exhibits in this case and the submissions of counsel, I have come to the conclusion that the renewal of the summons in this case must be set aside.

53. I have reached that conclusion for the following reasons: first, notwithstanding that the solicitor for the first and second named defendants had been pressing for service of the summons to be effected on his clients during the currency of the summons, no effort was made by the plaintiff's former solicitor to serve the summons until the last day on which it could have been served on the defendants.

54. I accept the evidence that the defendants did not receive the summons until 15 December 2022, which was out of time. Accordingly, I find that the personal injury summons was not served within the time prescribed in the Rules of the Superior Courts. I find that service was effected after the summons had lapsed on 14 December 2022.

55. The plaintiff's former solicitor appears to have thought that putting the summons in the post on the last day for service thereof would constitute valid service. In the absence of any explanation to the contrary, the court finds that this was due to inadvertence on his part, or was due to his ignorance of the rules governing service of documents on defendants. Neither of these constitute special circumstances sufficient to justify why the summons was not served within the year provided for under the rules of court.

56. Thereafter, I find that the failure of Mr. McS to hand over the file in accordance with his clients instructions as contained in the letter from his current solicitor, which was sent to Mr. McS on 21 April 2022; was a wrongful act on the part of the plaintiff's former solicitor in failing to hand over the files until forced to do so upon application of the Law Society to the High Court, in or about 2024.

57. I accept the evidence given by Ms. Doyle in her affidavit sworn on 31 October 2025, that her firm only received the file from the Law Society on 18 February 2025. They wrote to the defendants’ solicitors on 13 March 2025 indicating their intention to seek to have the summons renewed. That application was made on 12 May 2025. I find that in all the circumstances, the plaintiff's current solicitors acted reasonably and promptly once they received the summons in February 2025.

58. However, I must find that the period between 15 December 2022, to when the former solicitor handed the file to the Law Society at the end of 2024, constitutes culpable delay on the part of the plaintiff's former solicitor. No justification whatsoever has been forthcoming for the failure of the plaintiff's former solicitor to hand over the file, or for his failure to bring an application to renew the summons; particularly in light of the fact that the solicitor acting for the first and second defendants had informed Mr. McS by letter dated 6 January 2023 that service had not been validly effected and that it would be necessary for him to bring an application to have the summons renewed.

59. This Court cannot make a finding that Mr. McS intentionally acted wrongly, because he has not been represented in these proceedings. I cannot make a definitive finding of wrongful conduct on his part because he has not had notice of any such allegation in the context of this application, nor has he been given any opportunity to defend his actions, or lack thereof, during that period.

60. However, I am satisfied that the court can draw an inference from the facts as proven in the correspondence exhibited in the affidavits, as summarised above. In particular, the court can draw an inference from the fact that no response appears to have been given by Mr. McS to the request to hand over the file, which was made as far back as 21 April 2022.

61. For the purposes of this application, I am prepared to find that the failure on the part of the plaintiff and his current solicitor to obtain the file until February 2025, was not due to any fault on the part of the plaintiff or his current solicitor.

62. However, I must hold for the purposes of this application, that that period of delay was culpable delay, because it was not caused or contributed to by the defendants.

63. When a party retains a solicitor, the solicitor acts on his behalf as his agent. If the solicitor takes a step in the proceedings, that step is deemed to have been taken by and on behalf of the plaintiff. The plaintiff gets the benefit of the action taken on his behalf by his agent. Equally, when the solicitor, in his capacity as agent for the plaintiff, omits to take a step, that omission is equally attributable to the plaintiff, even though he may have been entirely personally blameless as regards the particular omission to act.

64. It boils down to fundamental principles of agency law. The plaintiff, qua principal, cannot approbate the actions of a solicitor which are to his benefit; while at the same time reprobating those actions of his solicitor that are not in his interests.

65. Another way of looking at it is that if a solicitor fails to take necessary steps and both the plaintiff and the defendant have been blameless in this regard, it is fair and reasonable that the loss or adverse consequence of such inaction on the part of the solicitor should fall on the plaintiff rather than on the defendant, because if the solicitor acted in breach of his instructions or authority, or acted fraudulently or negligently, the plaintiff will have an alternative avenue for redress if as a consequence of those actions or inaction, his chose in action in the form of his action against the defendant, is lost.

66. In reaching that conclusion, the court is aware that it is reaching a different

conclusion to that reached by Ferriter J. in Galvin v Sharif. In that case, the plaintiff's first solicitor acted entirely fraudulently by lying to the plaintiff as to the status of the proceedings and as to steps that had been taken in furtherance thereof, when in fact no such steps had been taken by the plaintiff's first solicitor to progress the action. Thereafter, the plaintiff's second solicitor came to the view that given the inordinate lapse of time that had occurred, there would be no prospect of success if an application to renew the summons was made. It was only when the plaintiff went to a third solicitor, that an application to renew the summons was made.

67. In his judgment, Ferriter J. held at para. 47, that given the plaintiff's proactive involvement in relation to the progress of his action and in particular, in making regular contact with his first solicitor to enquire as to the progress of the action, and in view of the fact that the first solicitor had deliberately lied to the plaintiff in a number of respects, the court held that the combination of events was so unusual and extraordinary that they amounted to special circumstances within the meaning of the rules. However, that was only in relation to the period that there had been inaction on the file while in the hands of the plaintiff's first solicitor.

68. The court went on to hold that the inaction on the part of the second solicitor and the ultimate delay that had occurred in relation to making the application to renew the summons, were such that it was not appropriate in all the circumstances to justify renewal of the summons and therefore the order made at the ex parte stage renewing the summons was set aside.

69. With reluctance and for the reasons set out above, I must demur from the reasoning of Ferriter J. in relation to the period during which the plaintiff was effectively lied to or misled by his solicitor. I hold that if a solicitor acts outside of his instructions, or in a manner that is adverse to the interests of his client, such client cannot use that as a special circumstance justifying the delay in bringing the application to renew the summons. To hold otherwise, would be to penalise the defendant for actions that are entirely outside his control. As noted above, while the plaintiff may be regarded as an innocent victim of the wrongdoing of his solicitor in this regard, he will more than likely have an alternative avenue in which to seek redress in respect of any loss that he may suffer in consequence thereof.

70. Finally, I accept the evidence that has been led on behalf of the defendants that they will suffer general prejudice if the summons is renewed as and from 12 May 2025. If the summons is renewed from that date, it would mean that the trial of the action would probably occur some 9 or 10 years after the date of the accident. I find that in these circumstances general prejudice has been established due to the lapse of time. It is accepted by the courts that where there has been a significant lapse of time between an accident and the trial of the action, the memories of witnesses will fade over time thereby rendering it more difficult for the parties, and for defendants in particular, to defend themselves at the trial of the action. Accordingly, I hold that the defendants have suffered general prejudice in this case.

71. In addition, I accept the evidence led on behalf of the first and second defendants that they will suffer some specific prejudice due to the fact that the forklift truck which was involved in the accident has long since been returned to the lessor. However, I do not think that this is a materially significant prejudice, as no complaint is made in relation to the mechanics of the vehicle; rather the complaint is made in relation to the alleged negligence on the part of the forklift driver in his control and management of the vehicle. It seems to me that it would be possible to obtain photographs of a similar forklift truck of the same model and vintage as that used at the time of the accident. Accordingly, while there is some specific prejudice, it is not that great.

72. Applying the test set down by the Supreme Court in the Power case, I am satisfied that the special circumstances put forward in this case did not justify a renewal of the summons in May 2025, having regard to all the circumstances in the case.

Proposed Final Order.

73. Having regard to the findings set out in the judgment herein, the court would propose to make an order as per para. 1 of the notice of motion issued by the fourth defendant on 18 June 2025. The court would also propose to make an order in the terms of para.1 of the notice of motion issued by the first and second defendants on 8 July 2025.

74. As this judgment has been delivered electronically, the parties shall have two weeks within which to furnish brief written submissions of not more than 1000 words on the terms of the final order and on costs and on any other matters that may occur.

75. The matter will be put in for mention at 10.30 hours on 6 March 2026 for the purpose of making final orders.