The High Court has refused applications by two defendants to set aside an order renewing a personal injuries summons brought by a retired carpenter who alleges negligent treatment of his left hip in 2014 and 2015. The court found that he had established special circumstances for the delay and that the balance of justice favoured renewal.
The judgment by Ms Justice Niamh Hyland concerns an order made by Mr Justice Murphy on 13 January 2020. The summons, issued on 12 January 2017, was not served within the required year and had lapsed. The renewal application was made three years after issue. The defendants argued that the renewal should be set aside; the court was deciding that challenge, not the underlying negligence claim.
The plaintiff’s account was that his left femur was found fractured in January 2015 and he underwent emergency surgery the following month. After continuing problems, he was told in December 2015 that a wire or ring in the femur was broken and required removal. The judgment records that his claim alleges negligent treatment; it makes no finding on whether negligence occurred.
Justice Hyland accepted that the period after the summons lapsed involved unusual circumstances. The firm named on the summons said another solicitor held responsibility for the file, but that solicitor did not have a practising certificate during the relevant period. The plaintiff appeared not to know that the other solicitor was said to be acting for him. The judge found these circumstances explained the lack of progress between February and June 2018.
The judge also found that the plaintiff’s new solicitors had moved with adequate expedition in 2019 to obtain expert medical opinions, despite delay by one expert. She had doubts about delay from September to December 2018, but concluded, with hesitation, that the amended “special circumstances” test could not be applied retrospectively to a period before the relevant rule change took effect in January 2019.
The court found no real detriment to the defendants from the delay, while refusing renewal would almost certainly leave the plaintiff statute-barred. It also criticised the clinic defendant’s 13-month delay in issuing its challenge and 16 months before serving it, without an explanation. Although the surgeon defendant was not responsible for comparable delay, the balance of justice still favoured renewal in the case’s particular circumstances.
Justice Hyland rejected both applications to set aside the 13 January 2020 renewal order. The ruling leaves the summons renewed; it does not determine the merits of the medical negligence claim.