The Court of Appeal has upheld the renewal of plenary summonses brought by Jacqueline Crowe and Barry O’Neill against a fire-protection consultant and other defendants over alleged defects at an apartment complex in Belmayne, Dublin 13. It also dismissed Graham Gibbons’s appeal against the setting aside of a second renewal of his summons, granted after the first renewal had expired.
The judgment, delivered by Mr Justice Mahon on 2 March 2016, concerned appeals from High Court orders made on applications by the ninth-named defendant, Diarmuid Kelly, to set aside the renewals. The three plaintiffs had bought apartments in the complex. They allege that deficiencies in fire prevention measures made it unsafe for residential use and claim damages for negligence, nuisance and breach of duty. Those allegations were not determined in these appeals.
All three summonses were issued on 9 November 2012. Crowe’s and O’Neill’s summonses were renewed for six months in February 2014 and served on Kelly on 31 July 2014, shortly before that renewal period ended. Gibbons’s summons was renewed in March 2014, but was not served before that six-month period expired in September. A further renewal was granted on 22 September 2014, after the earlier renewal had lapsed.
Kelly argued that the renewals prejudiced him, including by depriving him of a potential limitation defence, and that he lacked notice and documents to respond to the claims. The High Court had upheld the first renewals for Crowe and O’Neill, while setting aside Gibbons’s second renewal.
The Court of Appeal agreed that reasonable efforts to serve Kelly had not been made. It nevertheless found “other good reason” for the first renewals in Crowe’s and O’Neill’s cases. The court cited the difficulties in retaining an expert, the fact that the limitation period had not expired when proceedings were issued, and the serious consequences the plaintiffs faced if the claims could not proceed. It dismissed Kelly’s appeals in those two cases, while acknowledging prejudice from the delay and agreeing with the High Court that the claims were largely document-based.
Gibbons’s case was different. The court found no reasonable excuse for failing to serve his summons during its first renewal period and no good reason to renew it again after that period expired. It held that the rules generally require an application for a further renewal to be made while the summons remains current. Although the court said the general power under Order 122, rule 7 could extend time in very limited circumstances where compelling reasons exist, it found no justification for reviving Gibbons’s lapsed summons. His appeal was dismissed. The judgment addressed only the renewal applications, not the underlying claims.