A recent High Court decision (Altan Management (Galway) Limited v Taylor Architects Limited & Ors High Griffin [2021] IEHC 2018) examined the principles governing the renewal of a summons after 12 months.

These rules (introduced in January 2019) are set out in Order 8 Rule 1 (3) and Order 8 Rule 1 (4) of the Rules of the Superior Courts (the RSC).

The RSC deal with applications to renew a Summons for a three-month period after the expiration of 12 months from the date it was issued. Different rules apply to an application to renew a summons prior to the 12-month mark.

Facts

The application before the Court was to set aside an Order renewing a Plenary Summons, which had been made on foot of an ex-parte application by the plaintiff. In making the original Order, the Court relied on its jurisdiction pursuant to Order 8 Rule 1 (4) RSC to renew the Summons where satisfied that there are special circumstances, which justify an extension. On the basis of the ex-parte hearing, the Court held that such special circumstances existed, namely the "non-existence of an expert report" and "the Defendants were at all stages on notice of the issues in the proceedings".

However, the first named defendant, who was not heard at the ex-parte stage, made an application for a de novo consideration of the renewal which was the issue before the Court in this hearing.

Decision

The Court said that the single test in an Order 8 application was whether there were "special circumstances" justifying the renewal of the summons. The Court relied on certain principles as set out by the Court of Appeal in Murphy v HSE [2021] IECA 3, which included:-

  • It is permissible to bring an application to the High Court to renew a summons more than 12 months after the issuance of the summons, even if an application to renew the same summons had been brought before the Master prior to the expiry of 12 months;
  • In hearing such an application, the Court must be satisfied that there are special circumstances which justify an extension and whether such special circumstances arise must be decided on the facts of a particular case;
  • Special circumstances require the presence of a circumstance beyond the ordinary or usual;
  • The Court will consider whether it is in the interests of justice to renew the summons and balancing any prejudice or hardship that may result to either the Plaintiff or Defendant in either granting a renewal or refusing to grant a renewal; and
  • Inadvertence or inattention by legal advisors in effecting service of a summons will rarely constitute special circumstances;

The Court further found that:-

  • Delay on the part of the plaintiff, the extent of that delay and the credibility of any explanation offered for the delay properly form part of the Court's consideration as to whether there are special circumstances which justify extension; and
  • There is an obligation on a plaintiff to be full and frank, as regards to setting out all relevant facts and circumstances in making an ex-parte application to renew a summons.

The Court held, taking the evidence before it into account and applying the above principles, that there were no such special circumstances justifying the extension of the summons. The Court was also mindful of the fact that the application to renew was brought 2 years and 2 months after the summons expired and the claim related to the construction of a development in 2004.

This judgment serves as a reminder to plaintiffs and their legal advisors of the need to be mindful of the expiry date of a summons. An application to renew a summons after the expiry of 12 months attracts the higher threshold of a requirement for special circumstances, when compared with an application to renew made to the Master prior to the 12-month mark. The judgment indicates that an application to renew is much more than a formality and the courts can and will refuse such applications if, on the facts of the case, the threshold of special circumstances to justify renewal is not met.