Court of Appeal Clarifies Legal Test for Summons Renewal

The Court of Appeal (“CoA”) has confirmed the legal test for the renewal of a High Court summons.  In the judgment given in Murphy v The Health Service Executive,1 the Court held that a plaintiff need only demonstrate that there are “special circumstances” which justify the renewal, providing welcome clarity for litigants.  Although previous High Court judgments had indicated that a plaintiff was required to (i) show special circumstances to justify an extension of time to bring a renewal application, and then (ii) provide “good reasons” to justify the renewal, the CoA categorically rejected this two-tier test.

Order 8 RSC

Order 8 of the Rules of the Superior Courts (“RSC”) outlines the circumstances in which a court may renew a summons where a plaintiff has failed to serve it within 12 months.  Order 8 Rule 1(4) RSC states that a court may order a renewal “where satisfied that there are special circumstances which justify an extension.” Prior to the CoA’s recent judgment, this rule had been the subject of varying judicial interpretations.  In both Murphy and Cullen v ARF Management Limitedand Downes v TLC Nursing Home Limited,the High Court concluded that a plaintiff must satisfy two requirements to have an expired summon renewed by a court under Order 8 Rule 1(4): (i) that there were “special circumstances” to justify an extension of time to bring the renewal application, and (ii) that there were “good reasons” to renew the summons.  However, other members of the judiciary had been critical of this two-tiered interpretation.  Most notably, Ms Justice Hyland who stated recently “it seems somewhat unlikely that the drafters of Order 8, Rule 1(4) would have imposed a two-tiered test for renewing a summons”.4


The plaintiff issued medical negligence proceedings against the Health Service Executive (the “HSE”) by means of a personal injuries summons on 31 August 2018, claiming for alleged mistreatment during her stay at a Mayo hospital in 2016.  This was a “precautionary summons”, issued to prevent the plaintiff’s claim being defeated by the statute of limitations.  The summons stated that the plaintiff would be unable to particularise certain key elements of her claim, namely the breach of duty and causation, until she received a number of expert medical reports.  A significant period of time elapsed after the summons issued, partly due to the plaintiff’s failure to provide the requisite outlay for the reports and partly due to delays in receiving the reports from doctors.  The personal injury summons expired on 1 September 2019 without being served on the defendant.  The plaintiff finally received the expert medical reports in January 2020, at which point she made an ex parte application to renew the summons.  The plaintiff’s application was successful and the summons was subsequently served on the HSE. 

Upon being served, the HSE brought a High Court application to set aside the renewal of the summons, on the grounds that that the period between the expiry of the summons and the renewal application was inordinate and had “resulted in general prejudice to the HSE”.  The HSE’s solicitors also argued that the plaintiff had delayed seeking the expert medical reports after the first summons issued and that this did not constitute a “special circumstance” sufficient to justify an extension of time for renewal of the summons.

Mr Justice Cross refused the HSE’s application to set aside the renewal.  Although critical of the plaintiff’s failure to inform the HSE of the claim and indeed provide it with a courtesy copy of the summons prior to receiving the medical reports, he held that the plaintiff was not responsible for the delays in receiving the medical reports and that these delays were a “special circumstance” which justified the renewal of the summons.  Furthermore, he concluded that the HSE had not been subjected to “specific prejudice” as a result of these delays.  The HSE appealed the decision, claiming that the trial judge failed to apply the correct legal test under Order 8 RSC.  Specifically, the HSE argued that the trial judge ought to have applied the two-tier test endorsed by the court in Murphy and Downes.

Court of Appeal

The CoA dismissed the HSE’s appeal and upheld the High Court’s decision to renew the summons.  Mr Justice Haughton found no reason to interfere with the conclusions reached by the High Court, including its finding that the 5-month delay between the expiration of the summons and the renewal application had not been excessive.  He agreed with Mr Justice Cross that this delay was reasonable considering the plaintiff did not receive the medical reports until January 2020.  In addition, he found that the plaintiff’s advanced age and poor health provided further justification for this delay.

In respect of the test to be applied for the renewal of a summons, the CoA held that the only question a court need consider when faced with a renewal application is whether there are “special circumstances” which justify renewal.  After conducting an in-depth analysis of the wording of Order 8 Rule 1(4) RSC, Mr Justice Haughton concluded that if a two-step interpretation of this rule was to be adopted, the court would be introducing, “words that simply are not there.”

Concluding Remarks

The CoA’s judgment has provided litigants with much needed clarity on the test for a renewal applications.  While plaintiffs will no longer have to overcome the preliminary hurdle of persuading the court to extend time for making a renewal application, they will still need to show the court that there is a “special circumstance” justifying renewal.  It remains the case that the longer the period of time between expiration of the summons and the application to renew, the more difficult it will be to convince the court to renew the summons.  The most prudent course of action therefore is to make a renewal application as soon as possible after a summons has expired.

Also contributed to by Sean Kehoe.

  1. [2021] IECA 3
  2. [2019] IEHC 802
  3. [2020] IEHC 465
  4. Brereton v The Governors of the National Maternity Hospital [2020] IEHC 172 [9]

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.