The High Court has declined to set aside an order renewing a summons in a case in which Ann Murphy alleges that Kevin Mulcahy committed assault, including sexual assault. The ruling concerns whether the summons could remain in force; it makes no finding on the allegations themselves.
Mr Justice Max Barrett delivered judgment on 15 June 2015 after hearing Mr Mulcahy’s application on 8 June. Mr Mulcahy sought to overturn an order made ex parte by Mr Justice Hedigan on 7 April 2014, which renewed the summons for six months. The application was brought under Order 8, rule 2 of the Rules of the Superior Courts, which allows a defendant to seek to set aside an ex parte renewal before entering an appearance.
The summons issued on 7 February 2013. A summons-server made unsuccessful personal service attempts at Mr Mulcahy’s address on 3, 4 and 5 February 2014, and twice on 6 February. On the final visit, Mr Mulcahy’s son said he would be home that evening; his wife later told the summons-server he was not there and could not say when he would return. The court described the attempts as bona fide and found nothing to suggest the server’s efforts were deficient, although they came late in the summons’s initial 12-month term.
The court rejected the argument that reasonable service efforts had to be made early enough to leave time to seek substituted service. It said the rules did not impose a shorter, implied period within the summons’s one-year lifespan for making those efforts.
In weighing the interests of justice, the judge said the allegations were serious but remained allegations. He considered that Murphy would face considerable injustice if unable to litigate them, and that this outweighed the potential injustice to Mulcahy from defending a claim that might have been pursued sooner. If the summons had not been renewed, Murphy would have been time-barred from bringing the claim, the judgment said. The court also noted that Mulcahy had identified no concrete prejudice resulting from renewal, while recognising the stress of litigation.
The court therefore declined to set aside the 7 April 2014 order. The judgment addressed the renewal and service procedure only; it did not decide whether the alleged conduct occurred or whether either defendant is liable.