Ellahi v The Governor of Midlands Prison & Ors [2019] IEHC 923 (20 December 2019)

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JUDGMENT of Mr. Justice Brian O’Moore delivered on the 20th day of December, 2019.

1. This is an application to set aside an order of Meenan J. of the 4th February 2018. That

order, made on an ex parte basis as is the norm, specified that an order is made

“pursuant to Order 8, rule 1 of the Rules of the Superior Courts that the Personal Injuries

Summons in this case be extended and hence renewed for a period of three months from

the date hereof in the circumstances where there was a delay caused by the Plaintiff

changing solicitors justify an extension”. That last clause is particularly significant because

it sets out firstly the requirement of the rule as understood by Meenan J., that the order

would reflect the reason why special circumstances were found by him to exist and

secondly the special circumstances actually argued for, by and on behalf of the Plaintiff, in

2. The affidavit before Meenan J. set out, not it has to be said in great depth, the reason

why these special circumstances existed. In that regard I refer specifically to paragraph

four, paragraph six and paragraph eight of the affidavit of Mr. Mathew Byrne sworn to

ground the application in February. In paragraph four Mr. Byrne says that the Plaintiff

originally instructed a different firm of solicitors (KOD Lyons Solicitors) and their address

is given. Mr. Byrne goes on to say that the Plaintiff has now (and there is an emphasis in

the application placed before me this week on the word “now”) decided to instruct

different legal representation in respect of the proceedings herein. Mr. Byrne goes on to

depose that the Plaintiff has now instructed Burns Nowlan Solicitors (and their address is

given) in respect of these proceedings. At paragraph six he says that as a result of the

change in the Plaintiff’s legal representation, the summons was not served on the

Defendants within the required period of time. It is for that reason that the renewal of the

Personal Injury Summons is required for a further period of six months from the date of

the Order as the summons expired on the 27th of July 2017. At eight Mr. Byrne goes on

to say “further I say that no injustice would be done in granting the application and it is

the Plaintiff who could potentially suffer injustice should the application and/or renewal

not be granted”. That is, I think possibly a somewhat oblique reference to the

circumstance which could arise in the event that the summons was not renewed, namely

that the Statute of Limitations would be pleaded by the defendants. That issue however it

is not made out in any great level of detail, it is not described as the reason for the

application to renew or the justification for the application to renew and it is not, critically,

the special circumstance recorded by the Registrar as justifying the order of Meenan J.

3. We now know somewhat more about the actual circumstances as far as the Plaintiff was

concerned in respect of the service of the summons. In particular, if we look at it in

sequence, we now know that on the 14th of July 2017, the solicitors then on record for

the Plaintiff wrote to him in the Midlands Prison, Portlaoise in respect of these proceedings

and while all of the letter is of some interest, the relevant portion is as follows. KOD

“Your summons is due to expire on the 26th of July and if it has not been served

before that date an application will have to be made to renew same for a further

period to allow it to be served. We note that you had instructed us not to take any

further steps on your file and we are awaiting on you to revert to us with your

instructions to either carry out further work on your behalf or to pass the file to

another solicitor as nominated by you. If you have engaged another solicitor to look

after this matter on your behalf, you might forward their details to us by return. On

the other hand, you might confirm if you wish for us to serve the proceedings, a

copy of which we enclose, or alternatively you might confirm if you wish us to make

an application on your behalf to renew the summons for a further period. You might

note that we are in the process of issuing our application to come off record on this

matter and in the meantime you might confirm what you wish us to do.”

4. Now, as I read that correspondence, the Plaintiff was informed directly and I must say

very properly by his solicitors at the time that while they were in the process of preparing

or issuing an application to remove themselves as the legal representative of the Plaintiff

in these proceedings, they were nonetheless giving him very cautious advice about the

need to serve the summons, they were offering to serve the proceedings themselves, and

were alternately offering to make an application to renew the summons for a further

period. It is not explained by Mr. Byrne in either of his affidavits why the Plaintiff did not

take up that offer or indeed what his reaction to that offer was, though one can take it

that he did not instruct KOD Lyons at that point in time either to serve the proceedings or

to make an application to renew the summons for a further period to facilitate service at

5. That correspondence is at odds with the stated reason given by Mr. Byrne in his affidavit

seeking the renewal of the summons. That is a point that was made to me in argument. It

is also a point that arises not by reference specifically to this letter but in general terms in

the affidavit of Ms. Tuffy which grounds the current application. Again there are portions

of that affidavit which are particularly relevant to this ruling. Firstly, at paragraph four of

her affidavit, Ms. Tuffy sets out her chronology which is not disputed. The relevant five

dates in the chronology are: firstly, that on the 23rd of March 2015 there was the alleged

assault giving rise to the proceedings; secondly, that the summons issued on the 27th of

July 2016; we are aware from the correspondence I have opened of the letter of the 14th

of July 2017 offering to serve or seek an extension of time for the life of the summons

and we are also aware from that correspondence that the 26th of July 2017 was the date

by which the personal injury summons was to have been served. The next significant date

as listed by Ms. Tuffy is the 12th of December 2017 where she indicates that Burns

Nowlan, current solicitors for the Plaintiff, served a notice of change of solicitor “to be

filed in due course” as it is put and then finally there is an Order of Meenan J., made, as I

6. A number of things arise from that selection of dates from the chronology but the one

that is most striking perhaps is that – notwithstanding the fact that the current solicitors

indicated in December 2017, over two years ago, that they would be coming on record

and indeed did so later that month – nonetheless the current application for an extension

or renewal of the summons was not made until about fourteen months later. Ms. Tuffy’s

affidavit goes on to make the comments, again stressed by counsel on behalf of the

Defendants in making this application, that the affidavit sworn by Mr. Byrne for the

purpose of obtaining the order from Meenan J. in February of this year was not full in its

description and not accurate in its description of the relevant background facts.

7. At paragraph eleven of her affidavit Ms. Tuffy refers to paragraph four of the affidavit of

Mr. Byrne which I have opened during the course of this ruling. Ms. Tuffy goes on to say

“Mr. Byrne swore his affidavit on 31 January 2019. KOD Lyons were permitted to

come off record by Order dated 7 November 2017. Burns Nowlan filed a notice of

appointment of solicitors on 20 December 2017 having presumably been instructed

some weeks previously. It is therefore not correct to say that the Plaintiff has now

decided to instruct different legal advisors in circumstances where that decision was

8. I will look, in due course at the second affidavit of Mr. Byrne which replies to Ms. Tuffy

but I can say now that I agree with the criticism of Ms. Tuffy of Mr. Byrne’s original

affidavit; the use of the word now twice in the one paragraph gave an absolutely

misleading impression of when the change of solicitors had occurred. It would have been

open to Mr. Byrne to specify precise dates, it is regrettable and somewhat disconcerting

that he did not do so. Ms. Tuffy goes on at paragraph twelve to say that at paragraph six

of his affidavit, (that’s the first affidavit of Mr. Byrne); Mr. Byrne says:-

“[A]s a result of the change of the Plaintiff’s legal representation, the Personal

Injury Summons was not served […] within the requisite period of time.”

“The Personal Injury Summons expired on 26 July 2017, before the plaintiff’s

former Solicitors came off record and before his current Solicitors were appointed.

This is the reason relied upon to renew the Personal Injury Summons and it is

“I say that Mr. Byrne in his affidavit, makes no reference to the purported service

of the expired Personal Injury Summons and, in particular, the letter from the State

Claims Agency dated 7 February 2018 pointing out that the Summons had expired.”

That is true but I do not put a huge amount of weight on that exchange of

correspondence. What I do place weight on is paragraph fourteen of Ms. Tuffy’s affidavit

“No explanation has been proffered as to why, given that the plaintiff’s solicitors

were aware since receipt of the letter dated 7 February 2018 that the summons had

expired, no application was brought to renew the summons for almost 1 year until

4 February 2019. No information whatsoever has been put forward as to what

impediment, if any, existed to regularising the proceedings at an earlier stage.”

10. That last sentence was throwing down the gauntlet to Mr. Byrne in his reply to explain

why it was that, even leaving aside the correspondence of February 2018 but particularly

given the fact that correspondence had occurred, there was such a delay in applying to

11. Mr. Byrne in his replying affidavit, as I said, was effectively invited by Ms. Tuffy to

address the omissions and errors in his earlier affidavit and he did not do so. At

paragraph four in fact he repeated the form of words he had employed in his first affidavit

“The Plaintiff had originally instructed a different firm of solicitors, KOD Lyons

solicitors [and he gives their address], the Plaintiff has now decided to instruct

different legal representation in respect of the proceedings herein. I say that the

Plaintiff has now instructed Burns Nowlan Solicitors in respect of these

12. That is, I think, very similar wording and in respect of the objectionable portion (the use

of the word has now decided and the phrase has now instructed), identical wording to the

language used by Mr. Byrne in his first affidavit. It is surprising that he both uses the

same language again and secondly does not explain how it is that that language is

appropriate given the comments of Ms. Tuffy in the grounding affidavit.

13. At paragraph six of the replying affidavit, a fresh reason is given either for the non-

service of the original proceedings or I think more properly, the delay in seeking the

extension of the order of the court renewing the summons. At paragraph six Mr. Byrne

“[T]here were delays in the proceedings in that different legal representation came

on record for the Plaintiff in the intervening period. I say that due to a particular set

of circumstances, it was necessary to brief different Counsel in respect of the

matter which was through no fault of the Plaintiff. I say that, as an unfortunate

result, the necessary applications to renew the Personal Injury Summons were not

As I said, while that language is not crystal clear, I think on balance what it does do is to

purport to explain the delay in making the application to the court to renew the

summons. However, it is a wholly unsatisfactory explanation. When I asked counsel for

the Plaintiff if there was any further knowledge that he had in respect of these particular

set of circumstances he said fairly and candidly that there was not. It was really up to Mr.

Byrne, given the nature of the application before this Court, to explain why it was that a

period of fourteen months expired between his firm taking on the carriage of these

proceedings and the application to this Court in February of this year. The need to brief

different counsel is not explained but more obviously, there is no explanation as to why it

took fourteen months or the best part of fourteen months to brief different counsel for the

purposes of making an application to this court, which is hardly the most complicated

“[A]s a result of the change in the Plaintiff’s legal representation, the Personal

Injury Summons was not served on the main Defendants within the required period

However, yet again, that does not address in any way shape or form the fact that the

summons had yet to expire at the time that KOD Lyons sent that letter and; it also does

not address what we now know to be the situation which is that on the 14th of July 2017

KOD Lyons offered to serve the summons. Presumably the letter from KOD Lyons and the

application to come off record would have been included in the file provided to Mr. Byrne’s

firm (it would be surprising if it was not) but in any event the obligation lay on the

Plaintiff, fully and properly, to instruct his solicitors in relation to the factual backdrop and

the factual basis not only for making the original application in February but also for

resisting the current application. The omission of any reference to the correspondence of

the 14th of July is something that lies at the door of the Plaintiff; whether or not it also

lies at the door of his solicitors is something that I do not need to decide. That is a

particularly apposite issue when one looks at the conclusion of Mr. Byrne’s second

“I say and believe that the Plaintiff should not be denied his entitlement to pursue

the above personal injuries case as a result of matters which were beyond his

I do not understand how it can be said it was beyond the control of the Plaintiff to accept

the offer of his previous solicitors to serve the summons. That was a matter entirely

within his control at least on the facts made available to this court. It is difficult to see

why he did not give those instructions at the time or in default of doing so, give

instructions that an application be made to extend the period of time for the service of the

15. They therefore are the facts available to me. It is plain from those facts, I think, that

when one looks at the order made by Meenan J. in February (and in particular at the

statement that the special circumstances justifying the extension of time for seeking the

order arose from the change in solicitors), this was based on an unsatisfactory account of

the events giving rise to the application. The reason given to Meenan J. and accepted by

him on the basis of the affidavit of Mr. Byrne sworn at the end of January of this year,

16. Now I want to set out, as there was some issue about them, the requirements of the

Order in its revised form. Order 8 rule 1(2) provides that, where relevant, the Master on

application and where satisfied that reasonable efforts have been made to serve the

Defendant or for other good reason may order that the original concurrent summons be

renewed for three months from the date of such renewal inclusive. That is the jurisdiction

of the Master. As I read the rule in its current form the decision to authorise the renewal

of the summons arises where there have been reasonable efforts made to serve (which

does not arise here) or where there is another good reason which, as Ms. Justice Finlay-

Geoghegan has pointed out in Chambers v. Kenefick [2007] 3 I.R. 526, may not in fact

relate to issues of service. But a separate burden is imposed on an applicant for renewal

of a summons in circumstances where they have not sought an extension or sought a

renewal within the time specified in the earlier part of the order. It is stipulated in Order 8

rule 1(3) that after the expiration of twelve months, notwithstanding that an order may

be made under sub-rule two, application to extend time for leave to renew the summons

should be made to the court. At rule 1(4) it is stated, the court on application under sub-

rule three may order a renewal of the original or concurrent summons for three months

from the date of such renewal inclusive where satisfied that there are special

circumstances which justify an extension, such circumstances are to be stated in the

17. The position taken on behalf of the Defendants is that there were two hurdles for the

Plaintiff to overcome in front of Meenan J. Firstly, given the time at which the application

was made, they had to show that there were special circumstances justifying an

extension of time in order to seek leave to renew the summons and that requires, as I

said, the special circumstances stipulated in Order 8 rule 1(4). Secondly, what had not

gone away or disappeared as a requirement (and its difficult to see why it should), was

the separate obligation to show that on the facts of this case that there were other good

reasons which justified the renewal of the summons. I agree with that analysis. I am

conscious that this reading of the revised version of the Order is not one that is

immediately consistent with the judgment or the ruling given by Meenan J. in the case of

Murphy v. A. R. F. Manufacturing [2019] IEHC 802 in which the new version of the rules

were the subject of determination. Having said that, I am aware that in that case,

Meenan J. was not involved in deciding this particular issue; rather the issue before

Meenan J. at that point in time was the question of whether or not there could be a series

of renewals, which was the point which he decided. In as much as he has summarised the

requirements of the new version of the Order, I am satisfied that that was not the ratio of

his decision, it was not the centrepiece or focus of his attention at that time. I am also

supported in my analysis of the new Order by reference to the judgment of Kelly J. in

Catherine Whelan v. H.S.E. (Kelly J. Unreported, High Court, 31st May 2017) at

“If an application to renew is made within twelve months of the issue of the

summons then the application is made to the Master of this court. However, if that

period has expired, the application must be made to a judge. Such an application

being made to a judge really requires two orders to be sought. They are first, an

order extending time for the making of the application for leave to renew the

summons and second, an order granting leave to renew the summons.”

That does reflect the analysis that I have also adopted in relation to Order 8 in its new

18. Since, on that view of Order 8 as it currently stands, I find that no special circumstances

were properly or correctly made out or cannot be properly or correctly made out, it

follows that the basis of the order made by Meenan J. falls away. This is essentially

because of the failure to provide to the court at that time a full account of matters. Had

that been done, I do not believe that Meenan J. would have made the order. But now that

I am armed with those factual pieces of information, it seems to me that the order cannot

19. There has been a series of submissions made to me on behalf of the Plaintiff which I will

deal with now. The first is that there has been no material change between the old

version of the Order and the new. I have already set out what I believe is the correct

20. The second is that there is in fact another good reason which is the possible expiry of the

statute. In that regard, I rely upon the Whelan judgment at paragraphs 37 to 44 as

“37. At one time it was thought that the mere fact of a plaintiff's claim being statute-

barred constituted ‘other good reason’ to justify the renewal of a summons. The

high point of that judicial thinking is to be found in the decisions of the Supreme

Court in Baulk v. Irish National Insurance Co. Ltd. [1969] I.R. 66 and in McCooey v.

Minister for Finance [1971] I.R. 159. In the latter case Ó Dalaigh C.J. identified the

ratio of Baulk's case to be that the plaintiff's claim would be statute-barred if

renewal of a summons was refused and that that in itself constituted a good reason

38. The effect of these decisions was, of course, to entirely undermine the policy

underpinning the Statute of Limitations. A plaintiff might make no effort to serve a

summons for a very long time and then rely on the expiration of the limitation

period in order to obtain its renewal. Such an approach would defeat the whole

39. Subsequent decisions of the Superior Courts have substantially departed from the

line of reasoning underpinning Baulk and McCooeys' cases. By 1997 the Supreme

Court in O'Brien v. Fahy (21st March, 1997) distanced itself considerably from

these two cases with Barrington J. stipulating that the fact that a plaintiff's cause of

action would be statute-barred if renewal was not granted was not the only matter

to which the court had to pay attention. The following year in Roche v. Clayton

[1998] 1 I.R. 596 O'Flaherty J. stated that whilst a judge has a discretion whether

to renew a summons it was not a good reason to do so simply to prevent the

defendant availing of the Statute of Limitations. Thus, the mere fact that a

plaintiff's claim would be statute-barred is not of itself ‘other good reason’ for

40. It is common case that in the present case the plaintiff's claim will indeed be

41. As that of itself is not a sound basis for ordering renewal of the summons, are there

42. Since the decision in Roche v. Clayton there have been many judgments delivered

on this topic by different High Court judges. They include Chambers v. Kenefick

[2007] 3 I.R. 526; Allergan Pharmaceuticals (Ireland) Ltd. v. Noel Deane Roofing

[2009] 4 IR 438; and Moloney v. Lacey Building & Civil Engineering Ltd. [2010] 4

I.R. 417, all of which are reported in the Irish Reports. There have been many

decisions not so reported such as Moynihan v. Dairygold CoOperative Society Ltd.

[2006] IEHC 318; O'Grady v. Southern Health Board [2007] IEHC 38; and Bingham

43 Finally, there is the decision of the Court of Appeal in Crowe & Ors. v. Kiltara Ltd. &

44. These cases indicate that the courts have moved from the sort of indulgence

demonstrated towards plaintiffs in the Baulk and McCooey cases to a position which

takes account of the injustice which may be visited on a defendant in having to

defend a stale claim, the underlying policy of the Statute of Limitations and the

obligation on courts to ensure that proceedings progress with reasonable speed.”

21. I will make the two following points in relation to the above as follows. Firstly, during the

course of that section Kelly J. refers expressly to two of the authorities relied upon by the

Plaintiff in this application – O'Brien v. Fahy (21st March, 1997) and Allergan

Pharmaceuticals (Ireland) Ltd. v. Noel Deane Roofing [2009] 4 IR 438. Secondly, the

reference of Kelly J. at paragraph 44 deals with injustice to the Defendant in such

circumstances and further in his general conclusion at paragraph 50 he states:-

“50. I am conscious of the fact that the defendant has not alleged specific prejudice to it

were the order of O'Connor J. to be allowed to stand. That, of itself, would not

justify acceding to this application. The onus on the plaintiff on an application of

22. That decision certainly relates to the old version of the rule but then so do many of the

cases relied upon on behalf of the Plaintiff. In summary, on the authority of Whelan, the

following two propositions are established. Firstly, the question of prejudice on the part of

the Defendants does not in itself decide the fate of this application. Secondly, the

argument made before me by Counsel for the Plaintiff that the summons should be

renewed because of the possibility that the claim will otherwise potentially be statute

23. In argument, Counsel for the Plaintiff relied upon a range of authorities. There are two of

24. The first of those is the judgment of the High Court in Allergen; the second significant

authority referred to by the Plaintiff is Crowe v. Kitara Ltd. [2016] IECA 62. What must be

taken into account when considering the current application is the following. Firstly, both

of those cases, both Allergen and Crowe, relate to a situation where the issue being

addressed was the good reason for renewing the summons not the special circumstance

for the extension of time to make the application. Secondly, in this case as I have said the

application was made before Meenan J., on the basis that there was a special

circumstance which was the difficulty caused, allegedly, by the change in legal

representation. They were not factors in either Allergen or in Crowe. Thirdly, it is the case

(unlike Allergen and Crowe), that a second reason was then canvassed in the current

application which was the specific issue with regard to Counsel, a reason which I have

found not fully or properly made out and profoundly unconvincing in as much as it has

25. In Allergen and Crowe the argument put up in each of those cases was that the statute

would be pleaded successfully in relation to any fresh summons and that therefore there

would be issues of prejudice. But of course issues of prejudice are not at the heart of the

current application. I do not think it is open to the Plaintiff having made an application,

particularly on an ex parte basis, on a certain ground (which is that the special

circumstance is shown by the change in legal representation) then to shift their ground

when that Order is challenged and to argue that there is a completely different good

reason for justifying the extension of time. That is the case even if one telescopes the two

tests for special circumstances or good reason into the one. However, as I have said, my

view of the Order in its current form is that you do not so telescope the two tests and if I

am right about that, then Allergen and Crowe do not really carry the argument very far

from the perspective of the Plaintiff because both of those are expressly focused on the

question of whether or not there is a good reason to renew the summons, not on the

fundamental issue on this application which is whether or not special circumstances

justifying the extension of time to make the application are to be so found.

26. For those reasons, I will make an order in terms of paragraph one of the notice of motion,

relief under paragraph two of the notice of motion was not in fact pressed upon me

27. I will reserve the issue of costs.

Result: Application granted.

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