The High Court has refused to strike out a personal injury summons served on construction company SV Betong AS, finding that the document contained procedural irregularities but was not a nullity. The court did not decide whether any limitation defence would succeed, and left that question for a future hearing if raised.
Christopher Chambers issued a personal injury summons against Rathcaled Developments Limited in February 2015. He claimed that he fell at work on 28 January 2014. In November 2018, the Master of the High Court joined SV Betong as a defendant and gave Chambers 28 days to issue and serve an amended summons. A later order extended the time to 7 May 2019.
On that date, a summons was issued bearing the original 2015 date. It was labelled a concurrent summons, though the court found it was in substance an amended summons. It omitted the word “Amended”, the underlining shown in the proposed amended version, and an indication that Betong had joined the case later. Betong was served in August 2019.
Betong applied to strike out the summons as a nullity or irregularity. It argued, among other points, that it had issued more than a year after the original summons, did not match the form approved by the Master, and failed to disclose the later joinder. Betong also said it might have a limitation argument. The court noted that the summons stated the alleged incident date and bore a court stamp referring to the 2018 and 2019 orders. It said the stamp pointed to the procedural history and that the limitation issue could be raised later. The court expressed no view on how such an argument would fare.
The judge accepted that the issued document was deficient, but said the errors had been made innocently and that the defendants accepted this. Applying the court’s approach to procedural errors and prejudice, the judge rejected the contention that the summons was fundamentally invalid. The summons was essentially a copy of the amended summons for which leave had been obtained, and its description as concurrent did not justify striking it out. The court also rejected Betong’s claim that the served summons was manifestly different in substance and form from the version approved by the Master.
The court declined to strike out the summons, describing it as irregular but not a nullity. It made no final order on costs, saying it would hear briefly from the parties if they could not agree. The underlying personal injury claim was not decided in this application.