John O'Grady (plaintiff) v. The Southern Health Board and Tralee General Hospital (defendants)
Practice and procedure - Renewal of plenary summons - Application to set aside renewal - Whether delay inordinate and inexcusable - Whether defendants specifically or actually prejudiced - Whether balance of justice favoured continuance of case - Rules of the Superior Courts, Order 8, rules 1 and 2.
The High Court (Mr Justice O'Neill); judgment delivered on February 2nd, 2007
The court on an application under Order 8 rule 2 should not refuse to renew, where the case would otherwise be statute barred, unless the defendant demonstrates to the satisfaction of the court, the clearest possible case of actual prejudice, such that his defence to the claim has been in actual terms substantially impaired.
The High Court so held in refusing the application to set aside the renewal of the plenary summons.
Richard T. Keane SC and Colette Kinsley BL for the plaintiff; Murray McGrath SC and Kelley Smith BL for the defendants.
Mr Justice O'Neill commenced his judgment with an account of the relevant facts which preceded this application pursuant to Order 8, Rule 2 of the Rules of the Superior Courts to set aside an order of McKechnie J. made on June 13th, 2005, whereby the plenary summons was renewed for a period of six months from the date of the order.
In April, 1999, the plaintiff suffered a rupture injury to his patellar tendon from a fall off a bike, as a result of which he had to undergo surgery on his knee in Tralee General Hospital. In this surgery a repair of the tendon was carried out by the insertion of wire sutures. The plaintiff said that after the surgery he suffered excruciating pain. He said that he requested that the plaster cast be taken off but that this was refused. His wife requested that an x-ray be done at the time but this was also refused. He said he was heavily sedated. He said that notwithstanding his significant pain in the immediate post-operative period he was given physiotherapy. After three weeks the wound was examined, the clips taken out and the cast replaced. After about 12 weeks the cast was removed and further physiotherapy and exercises ordered, after which his knee became very swollen and painful. He said that an x-ray taken at this time confirmed that the wires had broken and that the tendon had re-ruptured. In July, 1999, a second operation was carried out to remove the broken wires. As a result of all this the plaintiff suffered months of severe pain and immobility.
On January 12th, 2001, the plaintiff attended a consultant who recommended that the plaintiff see a knee expert. Early in 2001, the plaintiff attempted to obtain a report from two separate knee experts who both declined to act for him. In January, 2002, the plaintiff instructed his solicitors to institute proceedings and the plenary summons was issued in February, 2002. In the meantime, starting with a letter of December 1st, 2000, the plaintiff's solicitor entered into correspondence with the defendants with a view to obtaining all of the plaintiff's relevant medical records, for the purposes of obtaining a medical opinion on the standard of care of his treatment in Tralee General Hospital. Medical records were sent by the defendants, but the plaintiff averred that these were not complete and sought further details in April, 2001. The parties exchanged correspondence for a period and copies of x-rays were supplied to the plaintiff in May, 2001. In February, 2002, the plaintiff's solicitor wrote a further letter to the defendants complaining of the incompleteness of medical records previously supplied. It appeared that this letter was replied to in March, 2002, enclosing medical records, but the plaintiff's solicitor was still dissatisfied with the completeness of the records supplied and a further letter was written in June, 2002. It appeared that no additional material was furnished and the defendants contended that by March, 2002, the plaintiff was in possession of all the relevant records.
In November, 2002, the plaintiff's solicitor wrote to the physiotherapy department of the hospital and requested a report on the plaintiff's condition and physiotherapy treatment while in hospital. The department informed the plaintiff that it did not supply medical reports.
The plaintiff averred that until he had obtained a complete set of medical records he was not in a position to seek a medical opinion on the adequacy or otherwise of the care given to him by the defendants. Acting on legal advice in March, 2003, the plaintiff sought an appointment with a medical specialist in the UK. After a delay, he saw this specialist in April, 2004. In September, 2004, the specialist furnished his final report. The plaintiff averred that it was only after receipt of this report that he was in possession of the necessary medical evidence which would have justified proceeding with the claims made in the proceedings.
The plaintiff sought an order allowing the renewal of the plenary summons. This was heard ex-parte before McKechnie J. in June, 2005, when the order was made renewing the summons. In July, 2005, the renewed summons was served on the defendants. The defendants contended that this was the first clear intimation to them of the plaintiff's claim, six years after the event.
Mr Justice O'Neill referred to Order 8, rules 1 and 2 which reads as follows:
"Renewal of Summons
"1. No original summons shall be in force for more than 12 months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of 12 months to the Master for leave to renew the summons. After the expiration of 12 months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed . . . and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.
"2. In any case where a summons has been renewed on an ex-parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order."
Mr Justice O'Neill said that counsel for the defendants submitted that the onus was on the plaintiff to show good reasons why the summons should be renewed; on an application under r.2 of O.8, the court must approach the matter as a hearing de novo with the onus of proof on the plaintiff; the plaintiff had not demonstrated "good reason" for the renewal and had been guilty of inordinate and inexcusable delay; although no specific prejudice could be pointed to by the defendants, in the conduct of their defence, it was submitted that having regard to the lapse of time involved from July, 1999, to the likely date of trial, namely, ten years, and where oral evidence would be required to meet the likely allegations of the plaintiff, prejudice was to be presumed; that the judgment of Hardiman J. in the case of Gilroy v. Flynn 1 ILRM 290 indicated that a stricter approach is to be adopted to inordinate delay, in light of the jurisprudence of the European Court of Human Rights, exemplified in cases such as Mulhall v. Ireland ECHR 422 97/98 July 29th, 2004.
Mr Justice O'Neill said that counsel for the plaintiff submitted that: there was no inordinate or inexcusable delay; the plaintiff was entitled to issue the plenary summons and not serve it, to stop the statute of limitation running and to continue to investigate the medical evidence to establish if there was a sound basis for the claim; in an application under r.2 a defendant had to be able to point to material that had not been disclosed to the court on the ex-parte application, which would have moved the court to refuse the renewal, or otherwise to adduce evidence of prejudice to the defence which, had it been before the court on the ex-parte application would have persuaded the court to refuse the renewal - neither category of evidence was lead in this application by the defendant; the defendants had not demonstrated any specific or actual prejudice to their defence and presumed prejudice was not sufficient; the defendants were on notice of the claim by virtue of the extensive correspondence since December, 2000; there was delay on the part of the defendants in furnishing all of the plaintiff's medical records; the balance of justice lies in favour of renewing the summons; the plaintiff experienced considerable difficulty getting an expert report and there was no want of diligence on his part in that regard.
Mr Justice O'Neill stated that the first issue that arose was whether the defendant was confined on this application to adducing evidence of non-disclosure or prejudice such that if it were available on the ex-parte application the court would have been persuaded to refuse the renewal. Mr Justice O'Neill did not agree with the defendants' submission in that regard. In his view the original order having been made the party affected by it, i.e. the defendant, cannot treat the application under O.8, r.2 as an appeal. A defendant cannot simply seek to persuade the court hearing the r.2 application to reach a different conclusion on the same evidence adduced on the ex-parte application. A defendant must adduce new evidence which, had it been before the court on the ex-parte application, would have persuaded the court to have refused the renewal. Mr Justice O'Neill agreed with the judgment of Morris J. in the case of Behan v. Bank of Ireland (Unreported, High Court, December 14th, 1995).
Mr Justice O'Neill said that the next question which arose was where the onus rests on an application under O.8,r.2. Mr Justice O'Neill was of the view that r. 1 casts on the plaintiff the onus of proof of proving that either reasonable efforts were made to serve the defendant or there is "other good reason" for renewing the summons. Rule 2 casts on the defendant the burden of proof of such matters as are raised by the defendant.
The phrase "other good reason" in O.8 r.1 is not confined to issues relating to service and can embrace a variety of factors affecting both the plaintiff and the defendant, for example the fact that a refusal of renewal will render the plaintiff's claims statute barred or from a defendant's point of view, that the renewal of the summons will expose the defendant to a claim in respect of which his defence is impaired by the passage of time. Mr Justice O'Neill said that it must be borne in mind that defendant prejudice on this type of ground can even if there is a renewal, be dealt with in an application for a dismissal for want of prosecution, whereas a refusal of the renewal will in all those cases (the great majority), where the limitation period has expired, result in irreversible defeat of the plaintiff's claim. In general, at this stage of the proceedings, the exact nature and extent of the plaintiff's claim will not have been set out and this will only happen with the delivery of a statement of claim. Thus, it is unlikely that a defendant will at this preliminary stage be in a position to state with precision or clarity, what actual prejudice will affect him in defending the claim. Mr Justice O'Neill was of the view, therefore, that the court on an application under O.8 r.2 should not refuse to renew, where the case would otherwise be statute barred, unless the defendant demonstrates to the satisfaction of the court, the clearest possible case of actual prejudice, such that his defence to the claim has been in actual terms substantially impaired. Mere presumptive prejudice should not suffice to cause the refusal of the renewal of a summons.
Mr Justice O'Neill stated that there is an obligation on the court to ensure that all proceedings are completed in a reasonable time-frame. The European Court of Human Rights does necessitate a stricter approach on procedural default and time issues. The application of such an approach must, however, take place in the most appropriate procedural setting. Thus, a full consideration of the effects of passage of time on the capacity of a defendant to defend a delayed claim can best be done only at that stage in the proceedings when a defendant knows with certainty whether his defence has been impaired by the passage of time. In general, this will occur only after the statement of claim is delivered. To attempt to apply a stricter approach in advance of that stage would in all likelihood result in the imposition of an imprecise policy of strictness, rather than a consideration of the actual merits of the case, to which a higher standard of time observance could be applied.
Mr Justice O'Neill said that in the instant case the plaintiff's application for renewal fell to be considered on the basis of whether there was "other good reason" for the renewal, as distinct from the other potential ground namely "that reasonable efforts have been made to serve such defendant". Such delay as there was on the part of the plaintiff was apparent to the court on the ex-parte application from the affidavit grounding the application. The court on a r.2 application cannot reach a different conclusion on whether or not there was inordinate delay unless new evidence is adduced which if put before the court on the ex-parte application would have persuaded the court to refuse renewal. Mr Justice O'Neill stated that the only new material in the affidavits filed in the r.2 application related to the correspondence concerning the disclosure of the plaintiff's medical records by the defendants. This evidence offered an explanation of the plaintiff's delay up to the engagement of the UK expert, where none was given in the affidavit grounding the ex-parte application at all. It was open to the court to consider the new evidence in the context of whether there was inordinate delay and whether the new evidence excused that delay. In the case of Hogan v. Jones 1 ILRM 512, Murphy J. held that only delay occurring after the issuance of a writ can be considered as constituting inordinate delay. Mr Justice O'Neill stated that in light of recent jurisprudence of the European Court of Human Rights, the question of whether the dicta of Murphy J. remained a correct statement of law would have to be considered in an appropriate case. The point was not argued in this case and hence Mr Justice O'Neill stated that he would adopt the approach set out by Murphy J. in that case. Thus only delay after July, 2002, (the expiry of the limitation period) could be considered as inordinate delay in the instant case.
Mr Justice O'Neill was of the view that the delay from July, 2002, to the engagement of the UK expert in October, 2003, was inordinate. Mr Justice O'Neill did not think that it was a necessary prerequisite, that all of the medical records had to be assembled before any attempt was made to engage the appropriate expert in the UK. Mr Justice O'Neill held that the plaintiff had an obligation to ensure that there was sound basis in law for the claim before it was commenced and that it was legitimate for him to issue his plenary summons to stop the statute running and to delay serving it while he investigated the available medical evidence. However, this permission could not amount to a licence to delay. A plaintiff in this position carries an onerous duty to eliminate all unnecessary delay knowing that some delay in communicating the claim to the proposed defendant would be inevitable because of the need to establish that there was sound medical evidence to support the claim. The inordinate loss of time impeded the plaintiff in the instant case from claiming that his obligation to investigate the medical evidence provided a justification or acceptable excuse for not serving the summons in time.
Apart from the correspondence to the defendants seeking disclosure of the relevant medical records, there was no other communication to the defendants intimating the claim now made, until the plenary summons was served in July, 2005. The plaintiff submitted that knowledge of the actual events themselves would of itself have suggested to the defendants that the plaintiff's claim was probable. Mr Justice O'Neill stated that such a contention was unsustainable. The correspondence concerning the records would undoubtedly have indicated to the defendants that there was a potential claim pending, but no more.
Mr Justice O'Neill said that the defendants did not assert actual prejudice, at this stage, and confined their complaint to presumptive prejudice due to the passage of time and the difficulty of assembling oral evidence to contest the claim, where the trial would be likely to take place approximately ten years after the accrual of the alleged cause of action. Mr Justice O'Neill held that not having received a statement of claim the defendants could not therefore point to specific or actual prejudice at this stage in the proceedings.
Mr Justice O'Neill concluded that notwithstanding the inordinate and inexcusable delay on the part of the plaintiff, the time barring of the plaintiff's claim by the non-renewal of the plenary summons, in the absence at this stage of evidence of actual substantial prejudice to the defence of the defendants, is a result which would be in the nature of a pure penalty imposed on the plaintiff, and at this stage of the proceedings was not warranted in the overall interest of achieving a just outcome to the dispute between the parties.
Accordingly, Mr Justice O'Neill refused to set aside the renewal of the summons.
Solicitors: Holmes O'Malley Sexton (Limerick) for the plaintiff; Ronan Daly Jermyn (Cork) for the defendants.
Kieran O'Callaghan, barrister.