Missed deadlines, missed chances: High Court draws the line on summons renewal
Reading time: 6 mins
Introduction
The recent High Court decisions of S.W. v Health Service Executive [2025] IEHC 526 and Geraldine Galvin v Imran Sharif and DePuy International Limited [2025] IEHC 680 illustrate the strict approach being taken by the Superior Courts when reviewing applications for renewal of an unserved Summons under Order 8 of the Rules of the Superior Courts (the “RSC”). This is a reminder that procedural discipline can be a decisive defence strategy.
Renewal Rules
Under Order 8 Rule 1 RSC, a Summons is only valid for a 12-month period from the day it was issued. Therefore, strict time limits apply. If the Summons is not served within this requisite time period, it will expire and cannot be validly served. However, under Order 8 Rule 1(1) applications can be made to the Master of the High Court to renew a Summons before it expires. If the Master is satisfied that “reasonable efforts” have been made to serve the Summons on the Defendant “or for other good reason”, the application may be successful under Order 8 Rule 1(2). Under Order 8 Rule 1(3), an application can be made to the High Court after the Summons has expired. The Court may allow renewal for a 3-month period where it is satisfied that “there are special circumstances which justify an extension” which must be stated in the order under Order 8 Rule 1(4). This is a high threshold to reach. Where a summons has been renewed on an ex parte application, any Defendant may, before entering an Appearance, serve a Notice of Motion seeking to set aside that order under Order 8 Rule 2 RSC.
S.W v HSE
Background
The Plaintiff issued proceedings against the Health Service Executive (the “HSE”) seeking declaratory relief and damages. Here, the Plenary Summons was not served within the mandated 12-month period which led to an application for renewal being made by the Plaintiff’s solicitor under Order 8, Rules 1(3) and 1(4) RSC. The Plaintiff’s solicitor explained that the failure to validly serve the Summons arose from his own mistaken belief that service had occurred by letter dated 16 July 2020, an assumption he had maintained until 2023.
Chronology of Inter Partes Correspondence
July 2020 – The Plaintiff’s solicitor issued proceedings on the 8 July 2020 and sent a letter of claim to the HSE, noting that proceedings would issue if no admission of liability was received within 14 days. HSE acknowledged receipt of this letter on 17 July.
28 April 2023 – Two and a half years later, the Plaintiff’s solicitor wrote to HSE noting High Court proceedings had issued and renewal “needed to be done”.
May 2023 – In response, the State Claims Agency (for the HSE) requested a copy of proceedings. The Plaintiff solicitor responded sending a certified copy of the Summons noting renewal would be required.
September & October 2023 – The Plaintiff’s solicitor claimed the Summons was served in July 2020 and renewal was now unnecessary and asked for an Appearance to be filed. However, the Defendant solicitors firstly sought proof of service of the original Summons.
November 2023 – The Plaintiff’s solicitor admitted that no proof of service existed and confirmed an application to renew the Summons was necessary. The Plaintiff’s solicitor noted that it appeared that “the Summons was not served” on 16 July 2020despite having “a separate letter indicating it was to be served…”.
The Plaintiff’s solicitor issued an ex parte application to renew the Summons on 4 October 2024, 18 months later and over 3 years after the expiry of the Summons.
The High Court
For the renewal application to be successful, the Plaintiff’s solicitor needed to prove that “special circumstances” arose under Order 8 Rule 1(4) RSC. Judge Cahill reviewed the inter partes correspondence when considering the application. The special circumstances asserted by the Plaintiff’s solicitor are explored below:
- Mistaken Belief
- Stress of Criminal Proceedings
- Medical Report
The Plaintiff’s solicitor mistakenly believed that the Summons had been served until April 2023. However, no renewal application was made until October 2024. Judge Cahill, citing Murphy v HSE [2021] IECA 3 stressed that a solicitor’s “mistake, misapprehension or inadvertence” rarely amounts to “special circumstances” under Order 8, which would require some “unusual, unpredictable” factors, “outside the control of the legal advisor” to allow for renewal. It is assumed that solicitors are aware of the 12 month time limit and are also aware of the consequences of not serving same within the required time period. Judge Cahill found there was no evidence of service in July 2020 and no factual basis for the alleged mistaken belief. References to an unissued draft letter from November 2023 regarding service were disregarded and Judge Cahill opined that she would not “attach weight to a reference in correspondence to an unissued, draft letter which was not exhibited” to the Plaintiff’s solicitor’s Affidavit. The Court held that this mistake did not constitute “special circumstance”.
The Court rejected the claim that delays were due to protecting the Plaintiff from further stress while concurrent criminal proceedings were ongoing, noting that service could have occurred without further client engagement. Nolan v Board of Management of St Mary’s Diocesan School [2022] IECA 10 was cited which held that a “bare assertion of stress” is “insufficient” without medical evidence. Here, no medical evidence was provided. It was also noted that as the Plaintiff’s solicitor believed at all times that proceedings had been served the Judge therefore noted that “instructions must have been given for that to be done”. Sensitive facts, while regrettable, do not create an exception under Order 8 and Judge Cahill noted that “the ongoing criminal process or its undoubted grave impact on the Plaintiff simply do not explain these delays”. The impact of the criminal trial did not amount to special circumstances here.
The Plaintiff asserted that delay was attributed to his difficulty in obtaining a psychiatric report. However, the Court stressed that such a report was unnecessary for issuing or serving proceedings and that no evidence was exhibited to justify the delay. Judge Cahill noted there was no evidence of urgency or necessity, and the application failed to meet the special circumstances threshold.
Ultimately, the Court found that no special circumstances arose, leaving no scope to consider the interests of judgement argument.
Geraldine Galvin v Imran Sharif and DePuy International Limited
Background
The Plaintiff underwent hip replacement surgery on 3 May 2005 at age 50 and was fitted with a DePuy AR XL hip implant. However, this product was later globally recalled in 2010. As a result, the Plaintiff required revision surgery in January 2012. The Plaintiff initiated proceedings in 2015, however, the Summons expired in January 2016 without being served. A renewal application was brought by her Third nominated Solicitor under Order 8 Rule 1 RSC and was obtained on 8 April 2024. The renewed Summons was validly served on DePuy on 10 June 2024. However, DePuy brought an application under Order 8 Rule 2 RSC to set aside this renewal. The Plaintiff engaged three different solicitors during the course of proceedings as outlined below.
First Solicitor
The Plaintiff engaged her first solicitor in January 2012. A personal injuries Summons issued on 23 January 2015 but, was not served within the 12-month period as required by the RSC. The first solicitor also submitted a PIAB claim on 21 January 2015 (which was not in fact required in this case). The Second Named Defendant, DePuy, became aware of the PIAB application in February 2015 however did not receive the Summons. The first solicitor “actively misled” and misrepresented case progress to the Plaintiff when in fact they were not progressing matters whatsoever.
Second Solicitor
The Plaintiff subsequently engaged a second solicitor in January 2019 upon learning that her first solicitor was before the Law Society for misconduct. The Plaintiff pursued a Law Society complaint against the first solicitor to obtain her file and there was considerable difficulty with this. In June 2020, the second solicitor learned the Summons had issued but had never been served, and insurers were not notified thus it was unlikely that the Plaintiff would be indemnified by the first solicitor insurers. The plaintiff’s complaint against the first solicitor was upheld, and the Plaintiff received her file, however the original issued Summons nor medical records were not included in the file. On 12 January 2021, the second solicitor indicated to the solicitors for the DePuy, that a High Court application for the renewal of the Summons would be required. By May 2021, the second solicitor had determined upon receipt of advice from Senior Counsel, that non-service of the Summons would likely be fatal to proceedings. The second solicitor wrote to the first solicitor noting that no progress was made with the Defendants and also conveyed that the Plaintiff’s intention was to initiate proceedings against the first solicitor.
Third Solicitor
In early 2022, the Plaintiff engaged a third solicitor. The Plaintiff collected her file from the second solicitor on 22 March 2023 and upon review of this file, the third solicitor found the file was incomplete and lacked any medical records or Opinions. To determine if an application for renewal could in fact be made, the third solicitor required further information. Accordingly, the third solicitor sought the appropriate medical records which were received in September and October 2023. After reviewing the appropriate records, an ex parte application was made for the renewal of the Summons citing special circumstances and was obtained. The special circumstances accepted related to prior solicitors’ failures.
In response, the solicitors for DePuy brought an application to set aside this application for the renewal of Summons.
The High Court
The renewal application brought under Order 8 was examined by Mr Justice Ferriter in the appeal proceedings. The second named Defendant argued that the Judge who granted the ex parte renewal order failed in their finding that special circumstances arose where none existed. Murphy v HSE was cited noting that special circumstances required the circumstances to be “beyond the ordinary” to succeed. The Court must also consider whether renewal is in the interests of justice. This involves weighing any general or specific prejudice or hardship claimed by the Defendant against the prejudice or hardship the Plaintiff would suffer if renewal were refused. However, as noted in Nolan v The Board of Management of Saint Mary's Diocesan School, special circumstances must first be established before considering the interests of justice argument.
- Solicitor Misrepresentation & Delay
Here, the Plaintiff argued that the delay in renewal was caused by the “egregious misconduct” of the first solicitor, who falsely assured her of progress and the delay in transferring files. A solicitor’s mistake will not generally constitute special circumstances, however, Judge Ferriter stressed there is “no hard and fast rule” and noted that solicitor inadvertence may amount to special circumstances if compelling, unusual factors explain the mistake, such as illness or unexpected external factors. In this case, it was accepted that the first solicitor’s behaviour was so outside the norm it constituted special circumstances. Judge Ferriter noted that due to the difficulties obtaining the file and the “mess” the second solicitor “inherited from the first solicitor” reasonable allowance would be made in those circumstances if an application for renewal had been made by the second solicitor within a few months of receipt of the file in June 2020. However, no such application was made. While acknowledging that misconduct did arise, the Court remained stringent that special circumstances must also explain all subsequent delays.
More than two and a half years had elapsed between the Plaintiff learning of the non-service of the Summons in June 2020 and the application made by the third solicitor for renewal. Judge Ferriter referred to AIB v Boyd [2023] IECA 318 and noted that as a matter of logic, special circumstances must “cover the whole or at least substantially the whole of the extension period” and is difficult to reach the longer the period is. The initial delay, January 2016 to June 2020 was justified however the unexplained delay of over two and a half years from November 2020 to March 2023 could not be justified. The second solicitor should have applied for renewal within a “reasonable period”. This interval lacked any substantiated explanation or justification and failed to reach the special circumstances threshold. Allowing such a belated renewal would undermine legal certainty and fairness and prompt action is in fact required when errors are discovered. Therefore, Judge Ferriter held that no special circumstances arose. As special circumstances did not arise, Judge Ferriter did not assess the interests of justice argument. Accordingly, the Court set aside the ex parte renewal order made in April 2024.
Overall Conclusion
It is clear that strict time limits apply under Order 8 RSC, and Defendants should remain vigilant before filing an Appearance. The Court’s decision to set aside the ex parte renewal order in Galvin reaffirms a consistent application of the rules and keeps the high bar for Plaintiffs and their Solicitors.
It is essential that Defendants are aware of the time limits under Order 8 and remain alert to possibility that the Summons may not in fact be served or in date. Defendants should ask Plaintiff’s solicitor for proof of service of the Summons before entering an Appearance.
Defendants should also seek a copy of the ex parte application and Order before entering an Appearance.
What might impact on the above will be the Digitalisation of Court Proceedings. S.I. No. 13/2025 - Rules of the Superior Courts (Digital) 2025 has recently amended the RSC rules to allow for the digitalisation of civil proceedings in Ireland.
Although this is not yet fully implemented, it will allow for Plenary Summons to be filed and served electronically with timestamps providing clear proof of compliance. This will arguably reduce ambiguity around whether service occurred and will ultimately strengthen the Defendant’s ability to challenge claims of mistaken belief that a Summons was validly served. It is also arguable that if a renewal does not occur within the requisite 12-month period, it will be harder for Plaintiff solicitors to argue exceptional delay.
Watch this space…