The High Court has set aside an order renewing Catherine Whelan’s personal injuries summons against the Health Service Executive (HSE) and Elizabeth Dunn, finding that the evidence did not establish a good reason for the delay in serving it.
Mr Justice Kelly, President of the High Court, delivered judgment on 31 May 2017 on the defendants’ application to set aside an order made by Mr Justice O’Connor on 21 December 2015. That earlier order had renewed the summons. The court’s decision concerned the renewal application; it did not determine the underlying personal injuries claim.
The judgment said Whelan was admitted to Wexford General Hospital in November 2011 for a total abdominal hysterectomy. She returned in December with urinary incontinence, and a scan showed a vesico-vaginal fistula. She underwent repair surgery in February 2012, which a post-operative scan confirmed was successful.
Her previous solicitors received a medical report from consultant urologist Tom Creagh on 11 March 2013. The summons was issued on 16 October that year and had to be served by 15 October 2014. It was not served, and the court said no attempt had been made to serve it while it remained in force.
In November 2015, Whelan’s solicitor Peter Crean applied ex parte to renew the summons. The judgment found that his affidavit wrongly suggested the summons had been issued before an expert report was received and that the report had only recently arrived. The court also identified later correspondence that misstated when the report had been received. Crean later explained that a further report had been considered and said the error was not deliberate.
The defendants had been told they would be notified of the renewal hearing, but the application proceeded without notice. Whelan’s solicitors apologised, describing the failure as an oversight.
Justice Kelly said the explanations for the delay were vague and did not amount to “other good reason” under the court rules. The fact that the claim would be statute-barred if renewal were refused was not, by itself, enough. Although the defendants had not alleged specific prejudice, the judge said the plaintiff had not discharged the burden of justifying renewal.
The defendants’ application succeeded, and Justice O’Connor’s renewal order was set aside.