The High Court has refused Brian O’Driscoll’s application to set aside the renewal of a summons brought by Allied Irish Bank plc over an alleged €225,000 liability under a guarantee.
Mr Justice MacGrath ruled that an unconditional appearance cured any irregularity in service. He also concluded that the court had power to extend time for a further renewal under the rules then in force and that compelling reasons justified exercising that power. The decision concerned the validity and renewal of the summons, not whether the alleged debt was owed.
The bank issued the summary summons on 20 October 2014. It alleged that Mr O’Driscoll had signed a guarantee in 2006 securing a loan or account of Brian O’Driscoll Construction Limited, and that the amount due under the guarantee was capped at €225,000. The judgment records that demand letters were served in January 2009.
After the summons was not served within its initial 12-month period, the court renewed it for six months in November 2015. Further service attempts were made, including at an address in Ballinderreen, County Galway. In February 2017, Humphreys J extended the time to apply for renewal and renewed the summons for a further six months. The order did not state what happened to the bank’s alternative request to deem earlier service good.
The proceedings were later served by post under a substituted-service order. Mr O’Driscoll entered an appearance on 30 June 2017. He subsequently argued that the February 2017 renewal was invalid because the previous renewal period had expired, and sought to set the order aside.
MacGrath J held that, under the rules applicable to the application, the court had no power under Order 8 alone to renew a summons after an earlier renewal period had expired. But he found that Order 122, rule 7 gave the court power to extend the time for renewal in very limited circumstances and where compelling reasons existed. He considered the summons capable of renewal rather than a nullity, and held that the unconditional appearance cured the resulting irregularity.
The judge also addressed the alternative basis for refusing the application. He weighed the bank’s attempts to locate and serve Mr O’Driscoll, his early awareness of potential proceedings, and the risk that a fresh claim could face a limitation defence. He concluded that the balance of justice supported extending time. He expressed no concluded view on either the request to set aside the appearance for mistake or the bank’s request to have its earlier application to deem service good re-entered, as neither application was formally before him.
The court refused the defendant’s relief and said it would hear the parties about any further application they wished to make. The judgment did not decide the bank’s underlying claim for payment.