The High Court has set aside the renewal of a personal injury summons against a hospital group and a surgeon, finding that the plaintiff had not shown special circumstances to justify the delay in serving it.
The judgment concerns a claim arising from an operation on the plaintiff’s left foot at St. Michael’s Hospital, Dun Laoghaire, on 29 October 2015. The plaintiff alleges that negligent treatment caused severe injury, including chronic regional pain syndrome. Those allegations have not been decided in this judgment.
The personal injury summons was issued on 26 October 2017 but was not served within the required 12 months. An ex parte application to renew it was granted in July 2019. Both defendants later applied to set that renewal aside.
The plaintiff’s solicitor said he had been uncertain whether the correct defendant representing the hospital was the company named in the summons or a nominee of the hospital. He said telephone conversations with the hospital group’s solicitors led him to believe that a court application to substitute the nominee would not be needed, but he received no written confirmation. The group’s solicitor denied that discussions had taken place.
Justice Barr said the account of the calls was unclear: the plaintiff’s solicitor could not specify their dates, number or participants, and had made no written notes. The judge also found no explanation for the delay between receiving written confirmation in March 2019 and applying to renew the summons in July.
The judge rejected the explanation as a special circumstance for the hospital group. He said the plaintiff would suffer prejudice if the claim could not proceed, but that the prospect of the claim becoming statute-barred was not itself a special circumstance.
The court found the case for renewing service on the surgeon weaker. The surgeon’s identity and whereabouts were known, and a firm of solicitors had been nominated to accept service before the service period expired. The judge said the summons could also have been served directly on the surgeon. Confusion about the hospital representative did not prevent service on him.
The judge further found discernible prejudice to the surgeon because the claim includes an informed-consent issue that may depend on his recollection and oral evidence about events before the operation. The court set aside renewal against both defendants. The parties were given two weeks to make written submissions on the terms of the final order and on costs.