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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Doe v. Armour Pharmaceutical Company and Ors [2002] IEHC 144 (11 April 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/144.html Cite as: [2002] IEHC 144 |
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THE HIGH COURT
1999 NO. 5579P
JOHN D.W. DOE
AND
ARMOUR PHARMACEUTICAL COMPANY, BAXTER HEALTHCARE CORPORATION AND MILES LABORATORIES INC
DEFENDANTS
Judgment of Mr. Justice Finnegan delivered on the 11th day of April 2002
This matter comes before me by way of an application pursuant to Order 8 Rule 2 of the Rules of the Superior Courts which provides as follows -
"2. 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 to set aside such order".
The order in question is an order of the Master made ex parte that the Plenary Siunmons herein be renewed for a period of six months from that date. The test to be applied in this court in determining whether or not to grant the relief sought is that set out in Donald Kerrigan & Others v Massey Brothers (Funerals) Limited & Another High Court unreported 15th March 1984 and, accordingly if I am satisfied on the evidence now before me that the order would not have been granted if all that evidence had been before the Master then I should grant the relief sought. It is clear from the order of the Master and from the Affidavits filed on the application before me that the order was made by the Master having heard submissions from Counsel but without any Affidavit being filed in support of the application. It seems to me that on such an application it is necessary that the Master (or where appropriate under Order 8 of the Rules of the Superior Courts the Court) should have evidence on Affidavit or in exceptional cases oral evidence as to the facts and circumstances necessary to entitle the grant of relief. In cases of extreme urgency it may be that reliance could be placed on Order 40 Rule 20 of the Rules of the Superior Courts. The irregularity which I perceive in the present application to the Master does not impinge on my ability to deal with this matter having regard to the test which I have to apply namely to consider the application in the light of the evidence available before me.
The relevant facts are as follows –
(1) The Plaintiff is a haemophiliac who received factor concentrate manufactured by each of the Defendants and in consequence of the product being contaminated contracted HIV. The Plenary Summons was issued on the 28th day of May 1999 and was one of a series issued by the Plaintiff's solicitors on behalf of persons who claim to have been similarly affected by the Defendants' product.
(2) By letter dated the 12th May 1999 the Plaintiff s solicitors wrote to a firm of solicitors being the firm now on record for the first named Defendant it being their understanding that that firm had been instructed in the defence of other similar proceedings and requested confirmation that the firm had authority to accept service of the proceedings.
(3) By reply dated 26th May 1999 that firm indicated that it had insufficient information upon which to assess the request made and requested a copy of the proceedings if issued or the intended proceedings if not then issued.
(4) By letters dated 28th May 1999 and 28th June 1999 the Plaintiff s solicitors repeated their request for confirmation of the firm's authority to accept service of the proceedings. By letter dated 1 st July 1999 they were informed that the firm did not have instructions to accept service.
(5) By letter dated 15th May 2000 the Plaintiff's solicitors wrote directly to the first named Defendant requesting that they nominate a firm of solicitors in the jurisdiction to accept service of the proceedings.
(6) On the 22nd May 2000 the Plaintiff s solicitors applied to the Court for and obtained an order pursuant to Order 11 of the Rules of the Superior Courts granting liberty to serve notice of the summons on the first named Defendant this being necessary as the first named Defendant is a company registered in the United States of America. In fact all three Defendants are registered in the United States of America and in consequence the Plenary Summons which issued was endorsed –
"Not for service outside the jurisdiction without an order of the court".
(7) On the 26th May 2000 the application pursuant to Order 8 Rule 1 of the Superior Courts Rules was made to the Master who renewed the Summons for a period of six months from the date of his order.
(8) By letter dated 16th June 2000 the Plaintiff's solicitors sent to the first named Defendant a copy of the Plenary Summons, a copy of the High Court Order of the 22nd May 2000 and a copy of the order of the Master dated 26th May 2000. It is to be noted that they did not send notice of the Plenary Summons. Further it is not clear to me whether the order of the 22nd May 2000 which directed service by pre paid ordinary post was complied with.
Order 8 Rule 1 of the Rules of the Superior Courts provide that the Master may renew a summons if satisfied that reasonable efforts have been made to serve the Defendant or for other good reason the renewal to be for six months fiom the date of such renewal inclusive. In this case I take into account that all three Defendants are corporations incorporated in the United States of America. I take into account that the Plenary Summons the subject matter of this application is one of a series of Plenary Summonses and that the solicitors now on record for the first named Defendant at the time of the enquiry of them as to whether they had authority to accept service were already on record for the first named Defendant in other similar actions and indeed in a number of those actions had been authorised to accept service. I take into account that service out of the jurisdiction in the United States of America may cause difficulty but in any event is likely to cause delay and increase the expense of the proceedings. I am satisfied that the first named Defendant through its solicitors had notice of the intention to issue these proceedings from receipt of the letter dated 12th May 1999. I am satisfied that it similarly had notice that the proceedings had issued as at the date of its solicitor's letter of the 1st July 1999.
I record that the other two Defendants had been served within the twelve month period: this however does not affect the Plaintiff s entitlement to the relief which he seeks: Dixon v Capes 11 ICLR 334.
In all these circumstances I am satisfied that the Plaintiff made reasonable efforts to serve the first named Defendant and accordingly I refiise to set aside the order of the Master.
This leaves the question of the manner in which service was in fact effected. Rather than serving notice of the summons as required by the order giving leave to serve out of the jurisdiction a copy of the summons was served. In relation to this I am satisfied that the law is correctly stated in Shortt v Ireland High Court unreported O'Hanlon J 30th March 1995 and O'Connor v Commercial General and Marine Limited and Another 1996 2 I.L.R.M. 291. The rule that notice of the summons be served is a requirement involving committee of nations and should be observed. Accordingly I set aside service of the summons.
The effect of the foregoing is that service of the summons has not been effected within the six month period allowed by the order of the Master dated 26th May 2000 and it seems to me that it will be necessary for the Plaintiff to apply to the Court pursuant to Order 8 Rule 1 for renewal of the summons.
Finally the summons the subject matter of this application is one of a series of summonses affected by similar circumstances and in respect of which a similar application was heard by me. I propose making orders in identical terms in respect of each of the same.