In Allied Irish Banks plc v Michael Boyd and John Boyd  IEHC 574 the High Court recently considered an application to renew a summons after the expiry of 12 months from the date of issue. The case highlights the importance for Plaintiffs, and their legal advisors, to be mindful of limitation periods and to progress litigation with due expediency.
Application before the Court
The Plaintiff had previously made a successful ex-parte application to renew a summary summons pursuant to Order 8 Rule 1(4) of the Rules of the Superior Courts. This rule states that the court may renew a summons for three months where it is satisfied that "there are special circumstances which justify an extension, such circumstances to be stated in the order". The special circumstances were identified as being (1) the Plaintiff placing the proceedings on hold while engaging with the Financial Services and Pensions Ombudsman (FSPO) on foot of a complaint made by the Defendant, (2) an unsuccessful mediation process, (3) Covid 19 restrictions and (4) the Plaintiff being required to amend the summons on foot of the Supreme Court decision in Bank of Ireland v O'Malley  IESC 84. The Defendants sought to have the renewal of the summons set aside.
A summons seeking summary judgment issued on 09 August 2017 against Mrs Agnes Boyd (Mrs Boyd). Five unsuccessful attempts at personal service were made in October and November 2017. No application for substituted service followed. Mrs Boyd sent a letter of complaint to the CEO of the Plaintiff, the Central Bank and the FSPO on 22 November 2017, with the formal complaint procedure of FSPO ultimately initiated. Mrs Boyd passed away in April 2018 (the personal representatives of the estate were substituted as Defendants when the summons was renewed). There was without prejudice engagement between the parties from February 2018 and a mediation, facilitated by the FSPO, took place in August 2019 but no settlement of the dispute was achieved. There was evidence before the court that following delivery by the Supreme Court of the Bank of Ireland v O'Malley judgment in November 2019 (which dealt with the level of particularity required in a summary summons), a decision was taken to abandon the proceedings and to commence a new action against the legal representatives of the estate of Mrs Boyd. These second proceedings were ultimately issued 1 day outside the time limit allowed for a claim against an estate of a deceased and the application to renew the summons in the within proceedings was subsequently brought.
The court considered the observations recently made by the Court of Appeal in Murphy v HSE  IECA 3, as regards to what may amount to "special circumstances which justify an extension":
1.It depends on the facts of each particular case, with no hard and fast rule.
2.It is a higher test than "good reason" but the threshold does not reach the level of a circumstance that is "extraordinary". However, it should be some fact or circumstance that is beyond the ordinary or the usual.
3.The court should consider whether it is in the interests of justice to renew the summons, and this includes considering any prejudice or hardship alleged by a Defendant and balancing that against the prejudice or hardship that may result for a Plaintiff if renewal is refused.
4.Inadvertence or inattention on the part of the Plaintiff's legal advisors will rarely constitute "special circumstances".
Special Circumstances alleged by the Plaintiff
- The complaint made by Mrs Boyd and the resulting FSPO engagement - The court was of the view that a major bank being in receipt of a complaint from a customer with respect to loan facilities could not be considered unusual or outside of the ordinary nor was the fact the complaint procedure of the FSPO was engaged, given that it is the body that exists for that purpose. A decision by the Plaintiff not to progress the claim until the complaint was dealt with was a unilateral one and inconsistent with the duty on a plaintiff to prosecute claims with reasonable expedition.
- Without prejudice engagement and mediation - The court held that engagement on a without prejudice basis does not relieve a party of their obligations to progress litigation with reasonable expedition. Furthermore, the court relied on correspondence issued by the Plaintiff which explicitly stated that the proceedings would not be stayed on account of without prejudice engagement or a mediation but despite this, no steps were taken to progress the litigation. It was noted that the mediation took place 1 year after the summons expired.
- The judgment of the Supreme Court in Bank of Ireland v O'Malley, which it was claimed required the Plaintiff's summons to be amended. The court did not accept this allowed the Plaintiff to "down tools". Further, the court held it was irrelevant to the application before the court in light of evidence that the Plaintiff decided, in lieu of having to renew and now amend the summons, it would instead abandon the proceedings and issue a new summons for efficiency purposes.
- The Plaintiff did not pursue litigation during the Covid 19 restrictions - as the Plaintiff had decided to issue new proceedings by the time Covid restrictions were implemented, it was held that any difficulties encountered related to the second proceedings and could not amount to special circumstances justifying the renewal in these first proceedings.
The Plaintiff also argued that if the summons was not renewed, the Defendants would be the undeserving recipients of a windfall, given the loan facility sums the subject of the dispute were advanced and not repaid. However, it was held that it was not the function of the court at this juncture to make a determination as to the merits of the underlying proceedings and the court could not take a view that there was no possibility of a bona fide defence. Further, the letter of complaint issued by Mrs Boyd put the Plaintiff on notice that the Defendant disputed the claim made in the then issued (but not served) proceedings.
The application to renew the summons was brought 2 years and 8 months after it had expired. While there is no statutory time limit in respect of how long after expiry an application to renew may be brought, the court held that delay is still relevant insofar as it is one of the factors which falls to be looked at when the court considers whether it is in the interests of justice to renew. In this instance, the court made a finding of extreme delay, comparing this period of 32 months as against the maximum 3-month period that a summons will be renewed for and the 12 months allowed for service of the summons.
The court concluded that the required special circumstances to justify an extension did not arise in this instance and the summons was not renewed, thus ending the proceedings.
It was noted that in the past the bar for renewal applications was relatively low but that the culture of endless indulgence has changed significantly in recent years. This case illustrates that the court will carefully consider whether the alleged "special circumstances that justify extension" put forward by a Plaintiff meet the necessary threshold and will refuse a renewal application if they are found lacking. Given the potentially fatal consequences for a claim, the importance for Plaintiffs, and their legal advisors, to be cognisant of limitation periods cannot be overstated.