2026 IEHC 304

(4)). The Order further allows that “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.” (Order 8 Rule 2).

1. In those circumstances it is somewhat concerning that in such an application brought by the Second Named Defendant the solicitor for the Plaintiff should describe the application as “vexatious”. Background
2. The Plaintiff’s claim is of great antiquity and relates to events that occurred in his infancy, in or about 1973, following his placement shortly after his birth in Madonna House, a children’s residential home in Dublin. The Plaintiff claims that as an infant he was subjected, without consent, to experimental vaccine trials conducted by or on behalf of the First Named Defendant (“Wellcome”). He alleges that the actions of the Defendants constituted breaches of his constitutional rights, rights under the European Convention on Human Rights, trespass to the person and negligence, arising from his inclusion in those vaccine trials while under the care of the religious order and the State.
3. The Second Named Defendant is a nominee for the Religious Sisters of Charity (“Sisters of Charity”) who ran Madonna House, after his mother left him in their care. The remaining Defendants need no introduction.
4. It is the case of the Plaintiff that “complex and expectational difficulties” arose in identifying the correct title of Wellcome, also known as GlaxoSmithKline (“GSK”), which gave rise to the failure to serve the Plenary Summons in time. In those circumstances, it is worth setting out a chronology. Chronology of the Proceedings
5. The following is the relevant timeline of events: • 29 May 2024, letters before action from Coleman Legal LLP (“Colemans”) solicitors for the Plaintiff, were sent to McCann Fitzgerald (“McCanns”) acting for Wellcome and the Office of the Attorney General acting for the State. • 30 May 2024 McCanns responded regarding a nominee. • 31 May 2024 the Office of the Attorney General confirmed that the State Claims Agency was authorised to accept service of the Plenary Summons on behalf of the State. • 4 July 2024, a letter before action from Colemans was sent to Sr. Bridget Collins, of the Sisters of Charity. • 17 July 2024, Arthur Cox LLP (“Arthur Cox”), for the Second Defendant replied to Colemans, nominating Bridget Collins, as the representative of the surviving members of the Sisters of Charity of the year 1973, for the purposes of the Plaintiff’s claim. • 24 July 2024, a Plenary Summons was issued and served on McCanns, but not on Bridget Collins, Arthur Cox or indeed the State. In the summons Wellcome was described as GSK. • 27 August 2024, McCanns replied to Colemans saying that the title was incorrect. • 4 September 2024, McCanns wrote again suggesting that the Plaintiff should seek to substitute Wellcome for GSK. (emphasis added) • 5 September 2024, Colemans replied seeking McCanns’ consent to Wellcome being joined as a co-defendant, not substituted, as had been suggested. • 9 September 2024, in a short reply McCanns asked was the Plaintiff’s intention to substitute Wellcome for GSK. • 26 November 2024, Colemans wrote confirming the substitution ofWellcome for GSK and acknowledging that McCanns would accept service. • 3 December 2024, McCanns consented to the application to substitute. • 9 May 2025, the Plaintiff was given liberty to amend the Plenary Summons, by Order of the Deputy Master. • 23 July 2025, the Plenary Summons expired. • 29 July 2025, the Plaintiff amended the summons. • 14 August 2025, Colemans served the amended summons on McCanns but not the other Defendants. • 1 October 2025, Colemans served the amended Plenary Summons on Arthur Cox by email, noting that no appearance had been entered. The email included the endorsement; “Amended this 29th day of July 2025 pursuant to Order of 9th day of May 2025”. • 3 November 2025, Barr J. made the Order granting renewal of the summons for a period of 3 months. • 18 November 2025, Arthur Cox replied to Colemans outlining that although the amended Proceedings issued on 24 July 2024, the Second Named Defendant was not served with a copy until the email of the 1 October
7. While I have briefly referred to the Order above, it is worth setting it out again. ORDER 8 “Renewal of Summons 1.

(1)No original summons shall be in force for more than twelve 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 twelve months to the Master for leave to renew the summons.

(2)The Master on an application made under sub-rule

(1), 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 for three months from the date of such renewal inclusive.

(3)After the expiration of twelve months, and notwithstanding that an order may have been made under sub-rule

(2), application to extend time for leave to renew the summons shall be made to the Court.

(4). The Court on an application under sub-rule

(3)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 to be stated in the order. …….

1. 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.” (emphasis added) The Legal Test to be Applied
2. Peart J. in Moynihan v Dairygold Co-Operative Society Ltd [2006] IEHC 318 said that an application to set aside was not in any sense an appeal against the making of the ex parte order. Instead, he characterised it “as being akin to a hearing de novo of the application”. This characterisation has been reiterated in subsequent cases.
3. The most recent case on the issue is Power v CJSC Indigo Tajikistan, Telia Company AB and Aga Khan Fund For Economic Development SA [2025] IESC 55 (“Power”).
4. It related to the Plaintiff’s appeal against a decision of the Court of Appeal, which had ruled on four appeals arising from the judgment and orders of the High Court (Egan J.) concerning applications to set aside the renewal of several summonses. The central issue in the Supreme Court appeal was the interpretation of the phrase “special circumstances” in Order 8, Rule 1

(4)of the Rules, particularly in relation to the so-called “gateway” requirement and the test governing the renewal of a summons. The Supreme Court then applied that test to the unusual facts of the case, which involved the renewal of two separate summonses, one a personal injury summons, while the second is described as protected disclosure proceedings commenced by plenary summons, issued against three foreign defendants.

1. In giving the decision of the Supreme Court, Woulfe J. outlined how the Courts had approached Order 8, to date, referring to three decisions of the Court of Appeal in Murphy v HSE [2021] IECA 3, Haughton J, Nolan v. Board of Management of St. Mary’s Diocesan School [2022] IECA 10, Noonan J. and Butler J. in Kearns v. Evenson [2023] IECA
3. Following his analysis of the Court of Appeal authorities, and he said the following: “95 …Firstly, I endorse the statement of Butler J. in Kearns that the test for renewal of a summons is not a two-stage process, and is certainly not a process of which difficult tests apply at each stage. It seems to me that O. 8, r. 1

(4)provides for one test or one question: are there special circumstances which justify an extension? While it is clear that a plaintiff must identify special circumstances, in my opinion it is probably not helpful to speak of a “gateway requirement”, at least in the sense of some form of separate requirement that a party seeking renewal must establish that special circumstances exist taken alone. Instead, the Court should view the special circumstances put forward in conjunction with the balance of the test in O. 8, r. 1

(4)as a single overall assessment as to whether it is in the interests of justice that the summons be renewed. In other words, do those special circumstances justify an extension, having regard to all other background factors such as the interests of justice, prejudice to either party and the balance of hardship? Secondly, I would highlight and endorse para. 77 of Haughton J.’s judgment in Murphy. I agree that whether inadvertence on the part of a plaintiff, or a plaintiff’s solicitors, can ever amount to special circumstances is very fact dependant, and that it is probably not helpful to speculate in a vacuum. Notwithstanding same, I also agree with the view expressed by Haughton J. that, as far as legal advisors are concerned, inadvertence or inattention, for example in effecting service of the summons, will rarely constitute special circumstances, given that such inadvertence or inattention would not normally have reached the former threshold of “good reason” under the previous version of O.

1. That is not to say that inadvertence or inattention can never amount to special circumstances, but it would take something exceptional or extraordinary to amount to same.”
2. From the above discussion it seems to me that the following propositions can be stated: • The onus is on a plaintiff to establish that there are special circumstances which may potentially justify the renewal of the summons. • It is not helpful to speak of a “gateway requirement”. • The special circumstances must be decided on the facts of the particular case. • “Special circumstances” is a higher test than that of ‘good reason’. • ‘Special’ suggests that some fact or circumstance that is beyond the ordinary or the usual needs to be present. • In considering the interests of justice, the court should consider any general or specific prejudice or the hardship alleged by a defendant and balance that against the prejudice or the hardship that may result for a plaintiff, if renewal is refused. • The Court should view the special circumstances put forward in conjunction with the balance of the test in Order 8, Rule 1

(4)as a single overall assessment as to whether it is in the interests of justice that the summons be renewed. • As far as lawyers are concerned, inadvertence or inattention, in effecting service of the summons, will rarely constitute special circumstances. • Provided the court is satisfied that special circumstances exist, the jurisdiction to grant leave to renew is discretionary.

1. I would add one further observation arising from Power namely, in a multi-party action special circumstances must be considered from the perspective of each party. Special circumstances in regard to one defendant may not be special circumstance to another. The Order of Barr J.
2. The operative part of the Order of Barr J, of 3 November 2025 reads: “And the Court being satisfied having regards to Order 8 Rule 1

(4)that the following special circumstances justify the making of an Order extending the time for leave to renew the Plenary summons In circumstances where

(1)There was confusion in regard to who was the correct company to be named as manufacturer of the drug

(2)The fact the other Defendants are already on notice of the claim

(3)This is a historical claim going back to the 1970s so no additional prejudice is caused by extension of time IT IS ORDERED that the time for applying for renewal of the Plenary Summons hearin issued on the 24th of July 2024 be extended to the date hereof AND IT IS ORDERED pursuant to Order 8 Rule 1 of the Rules of the Superior Courts that the said Plenary Summons be renewed for a period of three months from the date hereof” The Affidavits

1. It is just worth setting out in some detail the affidavit which grounded the initial application to renew the summons. That affidavit was of Mr. Spicer, a solicitor in Colemans, acting for the Plaintiff. At para. 4 he said that the failure to affect service was not deliberate or due to neglect but arose from a combination of evolving circumstances including uncertainty as to the identity of the proper pharmaceutical (Wellcome or GSK) and the State Defendants. He exhibited some of the correspondence with McCanns and went on to say that “in parallel” he was in correspondence with the Office of the Attorney General. He stated that the process of obtaining clarity was further complicated by overlapping correspondence.
2. At para. 10(c) he said that the file was under continuous management and the “the failure to complete service was an oversight arising from procedural developments, not neglect”
3. He concluded that the failure to serve was the product of genuine procedural complexity and caution, not inaction or indifference. The special circumstances he gave was a genuine uncertainty as to the identity of the proper pharmaceutical defendant and the proper State entity for service, the lack of prejudice on the part of the defendants, since they had been put on notice and what he described as “diligence and ongoing engagement”. Finally, he said that there would be no impact on the limitation period and the interests of justice. On foot of that affidavit the order was made.
4. The Motion to set aside the order was filed on the 3 December 2025 and grounded on the affidavit of Joanelle O’Cleirigh Solicitor, in Arthur Cox. She set out the chronology stating that the relevant threshold to justify the renewal under Order 8 did not exist. The order of Barr J. was made 15 months after the summons was issued. She questioned what uncertainty there was in identifying the correct title of the respective defendants, in circumstances where the information was provided by the solicitors for all the defendants in plenty of time.
5. In reply, Mr Spicer said that the litigation is complex with exceptional difficulties encountered in perfecting the proceedings prior to service. He said there was confusion as to the correct defendant namely GSK and/or Wellcome and that this necessitated detailed and protracted correspondence with McCanns before the application was made to the Deputy Master.
6. At para. 10 he said the following in regard to the application made to Barr J. on the 3rd of October 2025: “…that this strategic, unavoidable procedural history, coupled with the fact that all the defendants, including the second defendant, and pre-action notice of the claim, constituted the requisite special circumstances necessary for renewal under order 8 rule 1

(4)of the rules.”

1. At para. 14 he says that the delay in effecting service was not caused by any solicitor inadvertence or mere operational oversight but was in fact “a deliberate and justifiable strategic decision to ensure the integrity of the entire multi-party action following the order for substitution. This strategic choice, founded on the necessity of perfecting the plenary summons, distinguishes this case from those involving a failure of due diligence or a mistaken belief of service.”
2. The remarkable thing about that assertion is that it contradicts his first affidavit grounding the renewal application on 3 October 2025, where he said that the failure to effect service on all the defendants arose was an oversight arising from procedural developments, not neglect,. There is no reference to “a deliberate and justifiable strategic decision” or “a strategic choice” in the grounding affidavit.
3. The last paragraph that I shallrefer to is para.
4. For sake of completeness, it reads as follows: - “I say the proceedings are now perfected and advanced. The Statement of Claim, which was formerly exhibited in the plaintiffs grounding affidavit for the ex-parte motion, is ready for service. Notwithstanding the delays which the plaintiff has fully averred to, and which were contributed by the necessity of exercising due diligence and caution in perfecting the Plenary Summons, the current motion brought by the second name defendant represents an attempt to further delay the substantive determination of this serious claim. I say the continuation of the motion is vexatious and only serves to prevent the plaintiff from moving forward with the next stage of pleadings, thereby frustrating the vindication of the Plaintiff’s longstanding rights.” (emphasis added)
5. In a replying affidavit Ms. O’Cleirigh pointed out that the identity of Wellcome was resolved swiftly in three letters and that there was no complexity in relation to the identity of the other defendants. Remarkably she was able to inform the Court that a search of the Court Service website shows that on 21 January 2026, the Plaintiff issued another plenary summons naming the exact same parties, entitled “Frances Timmons v the Wellcome Foundation limited, Bridget Collins, Ireland and the Attorney General”, Record Number HP
8. Very late in the day, indeed the day before the motion, another affidavit was received from Mr Spicer, which does not add to the known facts. Discussion
9. As the case law clearly shows, applications of this nature are fact specific. In this case there are couple of facts which are not in dispute. The first is that there was some confusion in relation to the correct title of Wellcome. This may have arisen from earlier correspondence received from McCanns which suggested that they were going to take their clients instructions, in circumstances where the letter was headed “GlaxoSmithKline”.
10. If there was confusion, it was only on the part of Colemans and was resolved very quickly after the summons was served on the 19 August
11. McCanns did not delay in responding and indeed set out the pathway in which the Plaintiff could rectify the situation by simply substituting Wellcome for GSK, in its letter of the 4 September
12. Notwithstanding that letter, nothing happened. The difference between adding a defendant and substituting one does not seem to have been appreciated. Had the import of the letter of the 4 September been understood at that time, the application to the Deputy Master would, no doubt, have been made much earlier.
13. There were no difficulties whatsoever in identifying who the State Defendants were, since the Office of the Attorney General clarified that, before the summons was issued. Neither was there any difficulty identifying the nominee for the Sisters of Charity, since that too was confirmed on the 17 July 2024, before the summons was issued. To that extent the grounding affidavit’s reference to correspondence with the solicitors for those defendants being “in parallel” is clearly incorrect. There was no ongoing correspondence with those defendants at all after the summons issued.
14. The impression given in that affidavit was that there were difficulties in relation to identifying all the Defendants, not just one, over a significant period. That does not seem to be correct since there was no delay.
15. A further impression given is that the litigation was exceedingly complicated with many defendants which caused a litany of procedural problems. Unfortunately, I cannot agree, the issues in the proceedings themselves may well be complex, but the procedural aspects of the case are not. This case involves, in essence, three defendants. The Sisters of Charity identified a nominee before the summons was issued, as did the Office of the Attorney General, that left one defendant, Wellcome.
16. To describe Colemans engagement with Wellcome and McCanns as “complex” and that “exceptional difficulties were encountered” (para. 7) with a “strategic, unavoidable procedural history” (para. 10) is hard to accept. To then purport to justify the delays as being part of “a deliberate justifiable strategic decision to ensure the integrity of the entire multiparty action.” and a “strategic choice” (para.14) is, quite frankly unsustainable.
17. In reality the procedural issues were run of the mill, or as Senior Counsel for the Second Named Defendant said “mondane”. Practitioners and the courts have dealt with far more complex and confusing litigation for generations. One has only to consider the recent aircraft leasing litigation, with tens of parties on both sides, to see the point. At a more ordinary level it a very frequent experience for practitioners to encounter multiple parties in personal injury type actions.
18. It seems to me that what actually occurred is that the failure to serve was an oversight, as was stated in the grounding affidavit to the application to renew. Unfortunately, from the Plaintiff’s perspective, that amounts to an error. An oversight is an inadvertence or error.
19. I doubt there was a masterplan as is suggested by the use of the words “deliberate justifiable strategic decision” or a “strategic choice”. If that were the case it completely backfired. It should be noted that Senior Counsel for the Plaintiff quite righted resiled from that assertion.
20. I have come to this conclusion based upon the chronology. The Plaintiff first served Wellcome, on the 19 August 2024, but not the other Defendants. There is no explanation why that occurred. Thereafter the issue of the title of Wellcome, was raised by McCanns on the 19 August, but resolved eight days later, on the 4th of September. Colemans did not need to carry out any further investigations. But nothing happened for a further two months until Colemans, on the 26 November, asked for consent of McCanns to the substitution which McCanns had suggested months earlier. Consent was given on the 3 December, five working days later.
21. Again, nothing happened for a further five months, until the application is made on the 9 May 2025, before the Deputy Master. There is no explanation why that delay occurred. There was yet another delay until the summons was actually amended, on 29 July
22. By that time the summons had expired. Colemans served McCanns on 14 August 2025, but not Arthur Cox or the State Defendants. Colemans did not serve the proceedings on Arthur Cox until 1 October 2025, close to five months after summons was amended and over two months after the summons had expired.
23. Further the identity of all the defendants was known to Colemans over one year before the application to renew was made before Barr J.
24. Even when it was served on Arthur Cox, by email on 1 October 2025, the expiry of the summons does not seem to have been spotted, since the application to renew was made six weeks later. It is of note that the service of the 1 October 2025 was not referred to in the grounding affidavit of 13 October
25. This means that Barr J. must not have been informed of that service and the email.
26. Therefore, the Court is driven to the view that what occurred was an error. In the circumstances of this case that cannot be regarded as “special circumstances” to justify a renewal, leaving aside the assertion of a masterplan.
27. Even if the Court were to accept that there was some master plan, a deliberate decision not to serve the summons cannot justify the failure to serve it. In Darjohn Developments Ltd v Irish Bank Resolution Corporation Ltd [2016] IEHC 535 Noonan J. noted: “Once proceedings have commenced, the plaintiff is under a duty to prosecute them with reasonable promptness. The courts are increasingly conscious of their obligations under the Constitution and the European Convention on Human Rights to ensure that litigation is disposed of in a timely manner. Where proceedings are issued but not served, the defendant and the court are deprived of the normal control mechanisms that exist to ensure that undue delay does not occur. In general, it is not permissible to issue proceedings and then ‘park’ them without service in the hope or anticipation, for example, that a change in the law may render them viable or an impecunious defendant may become a mark.”
28. While in this case the purported reason for not serving the proceedings is different, the fact remains that once issued the summons should have been served, if not at once, certainly within the one-year period allowed under the Rules.
29. In the written submissions, the Plaintiff purported to argue that a difficulty with one defendant was sufficient to constitute “special circumstance” for another. However, a careful reading of Power shows that cannot be the case. Woulfe J. assessed each issue from the perspective of each defendant, a point quite correctly accepted by the Senior Counsel for the Plaintiff. Therefore, it is clear to me that there were no special circumstances relating to the Second Named Defendant.
30. I am satisfied that the grounding affidavit seeking renewal of the summons did not fully or accurately reflect the circumstances of the case, even if that deficiency is not determinative, given that the present application is, in effect, a de novo hearing. The central feature of Barr J.’s order was the alleged confusion regarding the identity of the correct company to be named as manufacturer of the drug. If confusion did arise it existed solely in the opinion of the Plaintiff’s solicitor and was for a very limited period. In any event, it does not amount to special circumstances, as it was neither unusual nor out of the ordinary. Difficulties of this nature— few as they were in this case—are routinely encountered in practice. Accordingly, I am satisfied that no special circumstances have been established that would justify renewal of the summons.
31. Senior Counsel for the Plaintiff submits that the interests of justice, the lack of prejudice and the balance of hardship, all must be considered and I agree with him. There is no doubt that the Defendants were put on notice of the Plaintiffs claim. In fact, it may well be the case that the litigation was expected since the issue arises from disclosures which were considered by the Leffoy and Ryan Commissions years before.
32. But that does not change the fact that the summons was not served within the time permitted and that there seems to be no circumstances which were out of the ordinary or unusual to explain the delay.
33. Further it seems to me that the argument in regard to the balance of hardship must be seen in the context of certain facts which were initially not before the Court. The written Submissions of the Plaintiff are based upon an assertion that he would suffer a great injustice or prejudice, to the extent that he would not be able litigate his case, if the renewal was set aside.
34. However, as a result of the diligence of the Second Named Defendant’s solicitor, it transpires that a second set of proceedings have been issued but not served, naming the exact same parties. The Court can safely assume that those proceedings were issued on a protective basis, in case this application were successful. Certainly, the Court was not told otherwise when the matter was raised. Had Ms. O’Cleirigh not carried out a search, the Court would have been in the dark in relation to this matter and could have exercised its discretion in a way which would have been misconceived. Senior Counsel for the Plaintiff readily accepts that this information should have been before the Court. Nonetheless I regard that as a material nondisclosure, such that would militate against the granting of a discretionary remedy.
35. While this is very serious it is not the main basis upon which I have reached my decision. It is clear to me that no significant prejudice will arise to the Plaintiff, by virtue of the second set of proceedings seeking, precisely the same relief. The fact of their issuance shows the lie to the argument.
36. The Statute is going to arise in this case anyway, in circumstances where the information which founds the cause of action, was disclosed in 2017 or before. Therefore, by setting aside the renewal, no new issue will arise that is not already in the case. Taking all matters into careful consideration, I am satisfied that what occurred was an oversight or error made by the Plaintiff’s solicitor, as stated in his affidavit. Bearing in mind Powers and the associated caselaw, that oversight or error does not amount to a special circumstance, to warrant a renewal of the summons. The matter is not altered by all other background factors such as the interests of justice, prejudice to parties and the balance of hardship. In fact, if anything, the issuance of another summons, dealing with precisely the same cause of action undermines any suggestion of prejudice.
37. But it is the suggestion that the motion is vexatious which I find totally inappropriate. I note that Senior Counsel for the Plaintiff, again very fairly, agreed that that should not have been said.
38. In all those circumstances I am satisfied that the renewal of the summons should be set aside pursuant to Order 8 Rule 2 of the Rules.