The High Court set aside an earlier order renewing a personal injuries summons brought by Faisal Ellahi over an alleged assault at Midlands Prison. Mr Justice Brian O’Moore ruled on 20 December 2019 that the special circumstances cited to obtain the renewal had not been properly established.
The case concerned an order made ex parte by Mr Justice Meenan in February 2019, renewing the summons for three months. The recorded reason was delay caused by a change of solicitors. The High Court heard an application by the defendants to set that order aside.
The summons had issued on 27 July 2016 and was due to be served by July 2017. In a letter dated 14 July 2017, the plaintiff’s then solicitors, KOD Lyons, told him it was nearing expiry and offered either to serve it or apply to renew it. The judge said the evidence did not explain why the plaintiff did not accept either offer. The summons expired before KOD Lyons came off the record and before Burns Nowlan was appointed.
The affidavit supporting renewal described the change of solicitors as having happened “now”, although Burns Nowlan had filed a notice of appointment in December 2017. The judge agreed that this wording gave a misleading impression of when the change occurred. He also found no adequate explanation for the roughly fourteen-month gap between the new solicitors taking over and the February 2019 renewal application. A later affidavit referred to the need to brief different counsel, but did not explain the circumstances or the delay.
The court held that the applicable court rules required two distinct matters to be established: special circumstances justifying an extension of time to apply for renewal, and a good reason for renewing the summons. It found the account relied on for the earlier order unsatisfactory and concluded that the order could not stand. The possibility that the claim might otherwise be barred by the limitation period was not, by itself, a sufficient reason to renew the summons.
The judge granted the defendants’ application in the terms of paragraph one of their notice of motion. A separate request in paragraph two was not pursued, and no order was made on it. The court reserved the question of costs. The judgment records an alleged assault as the basis of the claim; it makes no finding that an assault occurred.