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1. This is the Defendant's application under Order 8, Rule 2 of the Rules of the Superior Courts, 1986 to set aside an order made by this Court on 25th November, 1996 wherein it was ordered that the Plaintiff's time within which to apply for leave to renew the Plenary Summons, which was issued on 2nd March, 1994, should be extended up to and including the date of the order and further that pursuant to Order 8, Rule 1 the summons should be renewed for a period of six months from the date of the order.

2. The basis of the Plaintiff's claim against the Defendant is that on 5th March, 1991, during the course of his employment with the Defendant in the Defendant's storeroom, the Plaintiff sustained personal injuries as a result of the negligence, breach of duty and breach of statutory duty of the Defendant, its servant or agents. The summons was issued on 2nd March, 1994, within a couple of days of the expiration of the relevant limitation period prescribed by the Statute of Limitations, 1957.

3. As is usual, the application to renew the summons was made ex parte. It was grounded on the affidavit of the Plaintiff's solicitor, Gerard F. O'Donnell, which was sworn on 11th September, 1996, two and a half years after the summons had issued. The reason ascribed for failure to serve the summons within the prescribed time was "the delays incurred in preparing the Plaintiff's case for Counsel to draft the Statement of Claim". Two explanations were advanced for the delays. The first was that after the summons was issued it was necessary to engage an engineer to advise on the question of liability. The engineer reported on 3rd May, 1994, but the Plaintiff was unhappy to proceed on the basis of the report. However, following further discussions with the engineer and the clarification of the engineer's instructions, a revised report issued on 3rd June, 1995. The second was that there was a difficulty in linking the Plaintiff's injuries to the accident, which necessitated Mr. O'Donnell embarking upon correspondence with the Plaintiff's neurosurgeon. When the medical reports and the revised engineer's report were to hand a consultation was held with Counsel on 5th January, 1996 and following that consultation the Plaintiff indicated that he was happy to proceed with the action. Mr. O'Donnell also averred that, if the plenary summons was not renewed, the Plaintiff's action would be statute barred.

4. The sequence of events after 5th March, 1991 has been amplified in the five affidavits filed on this application, two of which were sworn by the Defendant's solicitor, Paul G. Horan, on 10th August, 1998 and 20th November, 1998 respectively, two of which were sworn by Mr. O'Donnell, on 5th November, 1998 and 20th November, 1998 respectively and one sworn by the Plaintiff himself on 19th November, 1998. The most significant fact to emerge from these affidavits is that the first notification of a claim by the Plaintiff against it to the Defendant was made in a letter dated 26th March, 1996 from the Plaintiff's solicitors to the Defendant. In that letter, which was dispatched more than five years after the accident and more than two years after the summons was issued, it was erroneously alleged that the accident happened on 5th April, 1991. Although the Defendant has a record of the Plaintiff having attended the Defendant's occupational health unit on 8th March, 1991 and a record of his complaint, his referral to the Galvia Hospital for x-ray, the radiological report of the x-ray, his referral to an orthopaedic surgeon and the orthopaedic surgeon's report, I am satisfied on the evidence before me that before 26th March, 1996 there was no intimation to the Defendant that the Plaintiff's infirmity, a prolapsed cervical disc, was attributable to an accident at work.

5. In his affidavit, the Plaintiff averred that it was as a result of a consultation with his neurosurgeon on 18th September, 1991, just six months after the accident, that he drew the link between the accident and the condition of his neck. At that consultation his neurosurgeon informed him that the condition of his cervical spine was not ascribable to degenerative disease; rather that the damage would have resulted from a bang of considerable force. The Plaintiff's explanation for not instituting proceedings at that juncture was that he was afraid he would jeopardise his position as a storeman with the Defendant.

6. It also emerged on this application that the Plaintiff is pursuing another claim against the Defendant arising out of an accident which is alleged to have occurred in October 1993.

7. On behalf of the Defendant, Mr. Horan has averred that, in the light of the long delay in prosecuting the claim and the failure on the part of the Plaintiff to notify the Defendant of the accident at the time it is alleged to have occurred, the Defendant would be seriously prejudiced in defending the claim. In particular, he has averred that it is impossible at this remove to ascertain precisely the physical condition of the storeroom, which is alleged to have been responsible for the Plaintiff's injury, or to verify the Plaintiff's assertion that there were no witnesses of the accident or to assess whether the injuries of which the Plaintiff complains are accident related.

8. In two recent decisions, the Supreme Court has held that on its own the fact that the plaintiff's claim, if made by a fresh summons would be statute barred, is not a good reason for renewing a summons and has distinguished its earlier decisions in Baulk -v- Irish National Insurance Company Limited (1969) I.R. 66 and McCooey -v- Minister for Finance (1971) I.R. 159.

9. In an ex tempore judgment delivered on 21st March, 1997 in O'Brien -v- Fahy t/a Greenhills Riding School , on an application by a defendant to set aside a summons which had been renewed, Barrington J. said:-

10. On the facts of that case - the accident happened on 24th July, 1988, the summons was not issued until 23rd July, 1991 and the first intimation that proceedings were contemplated against the Defendant was given on 5th June, 1992 approximately four years after the date of the accident - Barrington J. stated as follows:-

11. More recently, in Roche -v- Clayton in which an ex tempore judgment was delivered on 8th May, 1998, O'Flaherty J. stated as follows:-

12. In my view, the position of the parties on this application is indistinguishable from the position of the parties in O'Brien -v- Fahy . If anything, in this case the balance of justice is more heavily weighted against the Plaintiff and in favour of the Defendant than was the case in O'Brien -v- Fahy, because in this case a greater period elapsed between the date of the alleged accident and the first notification to the Defendant that a claim was to be made. The Plaintiff has not established any good reason for his failure to serve the summons within the one year period prescribed in Order 8, Rule 1. His explanation that he feared he would jeopardise his position with the Defendant if he instituted proceedings rings hollow. In any event, if an excuse of that nature was countenanced, the time strictures imposed by the Statute of Limitations, 1957 could easily be set at nought.

13. Finally, the Plaintiff has complained about the Defendant's delay in bringing the application to set aside the order dated 25th November, 1996. The Defendant was undoubtedly excessively tardy in bringing the application. However, that cannot avail the Plaintiff. In accordance with Order 8, the summons was renewed on foot of an ex parte application on the basis that the Defendant would be at liberty before entering an appearance to apply to have the renewal order set aside. The Defendant has adduced evidence which, had it been before me on 25th November, 1996, would have prompted me to refuse to renew the summons.

14. Accordingly, the order dated 25th November, 1996 is set aside.