Renewal of Summary Summons Refused
The High Court has refused to grant an application to renew a summary summons after a 32-month delay. The Court was not satisfied that special circumstances existed to justify the renewal of the summary summons.

 

The plaintiff, Allied Irish Banks PLC (AIB) issued a summary summons against Ms Agnes Boyd in August 2017, some eight months before her passing in April 2018. AIB sought judgment in the sum of €967,129.14 for monies advanced under various loan facilities. The summons was never served after five unsuccessful attempts. 

In March 2020, the plaintiff abandoned proceedings issued in 2017 (Original Proceedings) in favour of issuing a fresh set of proceedings (New Proceedings) that were never served. The plaintiff ran out of time to issue the New Proceedings under the Statute of Limitations, and sought to reactivate the Original Proceedings.

Michael and John Boyd were the legal personal representatives of Ms Boyd. In April 2021, following a successful ex parte application by AIB, the High Court (Court) made an Order substituting Michael and John Boyd (Defendants) instead of the original defendant, Ms Boyd in the Original Proceedings. The Order also allowed the renewal of the summons, as discussed further below. 

High Court – Renewal of Summons 

According to sub-rule (1) of Order 8, Rule 1 of the Rules of the Superior Courts (RSC), "no original summons shall be in force for more than twelve months". Sub-rule (4) provides that the Court may order the renewal of a summons where it is satisfied that "there are special circumstances which justify an extension, such circumstances to be stated in the order".

The High Court Order of 26 April 2021 set out the following four special circumstances to justify the renewal of the summons:

  • The plaintiff placed a hold on proceedings while engaging with the Financial Services and Pensions Ombudsman (FSPO) on foot of complaints made by Ms Boyd;   
  • The parties entered an unsuccessful mediation process;
  • The plaintiff did not pursue litigation at a time when COVID-19 restrictions were in place; and 
  • The plaintiff was required to amend the summary summons on foot of the Supreme Court decision in Bank of Ireland Mortgage Bank v O’Malley [2019] IESC 84 (O'Malley).

High Court – Motion to Set Aside Renewal 

The Defendants brought an application under Order 8, Rule 2 of the RSC to set aside the renewal of the summons. This application constituted a de novo consideration of whether the summons ought to be renewed. 

The Court referred to Murphy v. Health Service Executive 2021 [IECA] 3 (Murphy) where Haughton J carried out a thorough analysis of the interpretation of Order 8 of the RSC and the "special circumstances" test. 

Special Circumstances Considered by the Court 

  1. FSPO Engagement
    The Court noted that for a major bank to receive a complaint from a customer concerning loan facilities could not be considered unusual. AIB is a regulated financial service provider and the FSPO provides a complaints-resolution service for customers of such regulated financial service providers. Therefore, the Court found that a complaint made by Ms Boyd to the FSPO, the body which deals with complaints, was in no way unusual or out of the ordinary.
  2. FSPO Mediation Process
    The Court did not accept that the unsuccessful mediation process constituted special circumstances. The Court observed that the mediation took place in August 2019, a year after the expiry of the time allowed for service of the summons. No evidence was produced to the Court that suggested any formal steps were taken by AIB to prosecute the claim between August 2018 and August 2019. The Court further noted that a letter from AIB in June 2018 stating that "proceedings shall not be stayed until such time as a full and final settlement agreement is reached", contradicted AIB's assertion that it had placed a hold on proceedings while engaging with the FSPO, and its contention that this constituted a special circumstance.
  3. Supreme Court decision in O’Malley
    The Supreme Court decision in O’Malley, which clarified the level of particularity which must be contained in a summary summons, was also sought to be relied upon as a special circumstance. The Court was of the view that the handing-down of the O'Malley decision did not of itself amount to special circumstances.  This was particularly so as the judgment was delivered after the date of expiry of the summons. 

    The Court held that a clarification of the law through the O'Malley judgment did not allow AIB to 'down tools' with regard to the within proceedings and that it did not relieve AIB of its obligation to prosecute a claim it had chosen to institute.
  4. COVID-19 restrictions
    While the Court accepted that Covid-19 restrictions were, in effect, "special circumstances", it found that events after the end of 2019 were not relevant to the Original Proceedings.   This was due to the conscious decision made by AIB to abandon the Original Proceedings at the end of December 2019 and to issue the New Proceedings on 3 April 2020. Therefore, Covid-19 restrictions could only be relevant to those New Proceedings. 

Extreme Delay 

The ex parte application to renew the summary summons was brought two years and eight months after the summary summons expired. AIB argued that there is no statutory time limit regarding how long, after the expiry of a summons, an application to renew may be brought. The Court stated that this does not mean that delay is not relevant. The extent of the delay is among the factors that the Court must consider when adjudicating on the interests of justice in renewal applications.  The Court described the delay in this case as at the very extreme end of delay. 

Decision

The Court took several factors into account including the extent to which the Defendants were on notice of AIB's claim; potential prejudice or hardship to the Defendants and AIB; and the length of time between the expiry of the summons and the application to renew.  

Having weighed all relevant factors in the context of the interests of justice, the Court held that AIB had not established special circumstances to justify the extension.

Conclusion 

The approach of the Court demonstrates that the relatively low bar for renewal applications that once existed, or what was regarded as "endless indulgence" by the courts to such applications, has changed in recent years. Unless there are special circumstances justifying an extension, the court will not accede to the application.  The judgment illustrates that even where there are special circumstances asserted by the moving party to the application, the court will consider each such circumstance in light of the particular facts of the case before it. 

To discuss any aspect of this article in more detail please contact Lisa Carty, Hilary Rogers, or your usual William Fry contact.  

 

Contributed by Joanne Ryan & Kate Abell 

 

 

Key Contacts

Lisa Carty Partner

Hilary Rogers Consultant

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