The High Court has set aside orders renewing a summons against two defendants in a damages claim arising from the death of Mirek Bingham. Mr Justice Feeney ruled that the plaintiffs had not established good reason for the first renewal and that a later renewal against one defendant was sought outside the period allowed by the rules.
Bernard and Viola Bingham, Mirek Bingham’s parents, issued proceedings in December 2002 alleging that he died as a result of negligence and breach of duty by the defendants or their staff. The summons named nine defendants, including one described as a nominee of the Mater Misericordiae Hospital and a consultant neurologist. The judgment says the summons was never served on any defendant before it expired in December 2003.
The plaintiffs later relied on the criminal investigation, an ongoing inquest, work to obtain medical records and expert opinions, a change of solicitors and the prospect of the claim being time-barred as reasons for renewing the summons. The court found these did not provide good reason. It said the criminal complaint and inquest were separate from the civil proceedings, expert material had already been obtained, and the summons could have been served while further evidence was being gathered. The judge characterised the failure to serve it as inadvertence.
The summons was renewed by an ex parte order on 21 November 2005. A further ex parte order, made on 19 February 2007, renewed it against the second defendant. The court held that a subsequent renewal had to be sought while the first renewed summons was still current. That period had expired on 20 May 2006, so the 2007 renewal was set aside.
The judge also ruled that reasonable efforts to serve a defendant are one possible good reason for renewal, but the court must still consider whether renewal is in the interests of justice between the parties. The fact that a claim would otherwise be time-barred was not, by itself, enough. The court said prejudice is relevant but not decisive.
The orders renewing the summons on 21 November 2005 were set aside as against the first and second defendants, and the later renewal against the second defendant was also set aside. The judgment decided those applications concerning renewal; it did not determine the underlying negligence claim. The applications by the two defendants were brought under Order 8, rule 2 of the Rules of the Superior Courts.