The High Court has refused to set aside the renewal of a personal injury summons brought by Frances Kearns against Roches Stores over an accident alleged to have happened in its department store in July 1983.
Mr Justice Cooke said the proceedings had been marked by exceptional delay. Ms Kearns was two years and four months old when she allegedly fell on an escalator while with her grandparents.
She turned 18 in March 1999. A High Court summons was issued on 6 March 2002, just short of three years later, but was not effectively served during its initial 12-month life.
The summons was renewed by Peart J. on 17 May 2004 for a further six months. Attempts were then made to serve it on solicitors nominated by Roches Stores and later by registered post. The defendant ultimately entered a conditional appearance and sought to have the renewal order set aside.
Roches Stores argued that the length of time since the alleged accident meant witnesses’ memories would inevitably have deteriorated and that identifying or locating relevant witnesses could now be difficult. Questions could also arise over whether the escalator involved still existed for examination.
The court accepted that those concerns were substantial. However, Mr Justice Cooke said this application was not one to dismiss the entire action for want of prosecution. The narrower issue was whether there had been sufficient reason to renew the summons in 2004.
He noted that setting aside the renewal would leave Ms Kearns’ claim statute-barred. In those circumstances, the defendant would need to establish very clear actual prejudice substantially impairing its defence.
The judge found that the additional information placed before him did not materially alter the position that had existed when the summons was renewed. He therefore refused to set the renewal aside.
The ruling did not determine the personal injury claim itself. Roches Stores remained free to seek dismissal later on grounds of gross delay and prejudice once an unconditional appearance had been entered.