The High Court has refused an application by four defendants to set aside the renewal of a summons in a claim by Michael and Susan Tangney, trading as Shiviling Construction, for payment for building work.
The plaintiffs claim the work was done for or at the request of the defendants during a period ending in December 2001. The summons was issued on 19 September 2006 but was not served within the ordinary 12-month period, which ended on 18 September 2007. An ex parte order renewed it for six months on 18 February 2008. It was served in July 2008, within that renewal period.
The defendants argued there had been no good reason to renew the summons and that allowing the claim to proceed would cause serious prejudice. The judge said a defendant challenging an ex parte renewal could rely on material that had already been before the court when the renewal was granted. He also noted that the possibility that a claim would be statute-barred was relevant, but did not by itself outweigh the other parties’ interests.
The plaintiffs’ solicitor had attributed the failure to serve the summons to confusion about whether the file had transferred to another firm, changes in personnel and an amalgamation of firms. The judge considered the explanation “not a very strong one” but found it had sufficient substance to amount to good reason for renewal.
In balancing the parties’ interests, the judge said the critical delay was between the expiry of the ordinary service period and the renewal order, and was not “grossly unacceptable”. He found the defendants could still rely on their available points of defence, apart from the limitation issue, which had not expired when the summons was originally issued. The defendants had also been notified of the basis of the claim in 2002 and 2004, although the amount had substantially increased since then. The judge said appropriate defences remained open to them.
The ruling concerned only the defendants’ application to set aside the renewal. The court refused that application, leaving the renewed summons in place; it did not determine the underlying payment claim.