The High Court has set aside an order renewing a summons in a claim against TLC Nursing Home Limited arising from the death of Joseph Downes. Mr Justice Garrett Simons ruled that the plaintiff, Anne Marie Downes, had not established the “special circumstances” required to extend the time for applying to renew the summons.
The proceedings include a personal injuries claim by Ms Downes, including alleged nervous shock, and a fatal injuries claim brought on her own behalf and for other statutory dependants. The pleaded case alleges negligence in the nursing home’s care of her father. Those allegations were not decided in this application.
The summons issued on 7 July 2017, within two years of Mr Downes’s death on 10 July 2015, but was not served within its initial 12-month period. The Master of the High Court renewed it for six months in July 2018. It then lapsed on 4 January 2019 without being served.
On 1 July 2019, the High Court renewed the summons for three months in an ex parte order, citing the nursing home’s alleged unwillingness to provide records and issues with the transfer of files between solicitors. The summons was served by registered post on 30 July 2019. The nursing home applied in January 2020 to set aside the renewal before entering an appearance, as required by the rules.
The plaintiff relied on solicitor inadvertence, difficulties obtaining the deceased’s medical records, and the potential effect of the Statute of Limitations if renewal were set aside. Simons J said the affidavit did not meaningfully explain the period between August 2018, when the new firm was approached, and May 2019, when it received the original summons. He held that inadvertence or inattention by a plaintiff’s legal advisers would rarely, if ever, amount to special circumstances under the revised rules.
The judge also said the nursing home had offered the family an opportunity to inspect records on site and answer questions, but the family had not taken up the offer. He noted that the summons itself said it needed to be served to seek discovery of the records, making the records argument inconsistent with the stated reason for issuing it. He further found no evidence of attempts to obtain records after September 2017.
The court concluded that none of the three grounds met the special circumstances threshold and set aside the 1 July 2019 renewal order. It therefore did not consider the separate question of whether there was good reason to renew the summons. The court invited submissions on costs, with the defendant’s entitlement to costs identified as the default position, subject to further submissions.