The High Court set aside an order renewing a plenary summons in a claim against two solicitors, finding that the plaintiff had not shown a good reason for failing to serve it within 12 months of its issue.
Mr Justice John Hedigan delivered the judgment on 27 April 2015. The defendants had applied under Order 8, rule 2 of the Rules of the Superior Courts to set aside the Master of the High Court’s ex parte renewal order of 4 June 2013. The summons had been issued on 7 June 2012 and was renewed for six months.
The plaintiff’s claim alleges breach of contract, misrepresentation, breach of fiduciary duty, negligence and breach of duty. It concerns a 2006 land purchase contract with Ray White and alleged releases of funds to Mr White on 30 June and 16 August 2006. The judgment records the plaintiff’s allegation that the defendants’ wrongdoing made him jointly and severally liable with Mr White to AIB for €2,338,097.80. AIB called in the debt on 11 April 2012. These are claims described in the judgment, not findings on their merits.
The reasons advanced for renewal were that the plaintiff’s legal file had been mislaid or was incomplete, leaving a new solicitor unwilling to take it on, and that the plaintiff’s solicitor was reluctant to sue a professional colleague in the same town. The plaintiff also argued that the claim would become statute-barred without renewal.
The judge found no explanation for the delay between June and December 2012. Although the file was incomplete, the judgment noted that the defendants had furnished a complete file to the plaintiff’s solicitors in June 2011, when the plaintiff intended to pursue Mr White. The file remained incomplete when the renewed summons was served on the first defendant in December 2013. The judge said carelessness or inadvertence by the plaintiff’s legal advisers, without more, did not amount to “other good reason” for renewal. Reluctance to sue a fellow professional was also not a sufficient reason.
The defendants had waited about four and a half months after service on the first defendant before seeking the affidavit that supported renewal. The judge said they ideally should have moved within days, but that delay was not enough to prevent their application. Because no good reason for renewal had been shown, the court did not assess the balance of justice. It ordered the renewal set aside. The judgment does not decide the underlying claims against the solicitors.