The High Court has set aside an order renewing a summons in a financial advice dispute, finding that a delay of more than five years was not justified by special circumstances and had prejudiced the defendants’ defence.
Mr Justice Barr delivered judgment electronically on 16 September 2021 in an application by Harmony Row Financial Services Limited and Independent Trustee Company Limited under Order 8, rule 2 of the Rules of the Superior Courts. The defendants asked the court to set aside the renewal of a plenary summons ordered on 21 October 2019. The hearing was de novo, confined to the special circumstance stated in that earlier order: the “complex background” to the proceedings.
The summons had issued on 21 January 2014 and its ordinary service period expired a year later. The renewal application was first moved on 21 October 2019, four years and nine months after that expiry. The summons was served on the second defendant in January 2020, and the plaintiff delivered his statement of claim in January 2021.
The underlying claim concerns investments made in 2008 after the first defendant advised the plaintiff on funding his retirement. The plaintiff alleges that the advice was negligent and in breach of contract and duty, and that he was negligently misled about the investments. Those allegations were not findings in this application.
The plaintiff argued that the financial products and advice required expert evidence, and that his case formed part of a group of similar claims for which a test case had been discussed. He also relied on the illness of his former solicitor, the defendants’ asserted knowledge of similar claims and the prejudice to him if his action became statute-barred. The defendants disputed that these matters justified the delay and argued that witnesses would have to recall events from 2007 and 2008.
The judge found that an expert report was not required before serving a summons against companies over alleged negligent financial advice. In any event, the plaintiff had not provided evidence of efforts to obtain expert evidence or when it was received. The other claims and proposed test case did not explain why this summons was left unserved; neither did the evidence about the former solicitor’s illness.
The court was not persuaded that the defendants had intimate knowledge of the plaintiff’s specific claim. It also found specific prejudice: if the action proceeded, defence witnesses would likely be asked to recall advice and conversations from 14 or 15 years earlier. The fact that the claim might become statute-barred did not, by itself, amount to a special circumstance.
The court set aside the 21 October 2019 renewal order because special circumstances had not been established. It expressed sympathy for the plaintiff and said the effect was that he had lost the opportunity to pursue this action. The parties were given two weeks to provide written submissions on the final order, costs and other matters; the judgment did not determine those matters.