Plaintiff vs Third Defendant

This case involved a dispute over the service of a writ and the extension of its validity in a medical negligence and product liability claim.

TLDR:

• The third defendant applied to set aside service of the writ.
• The plaintiff sought to extend the validity of the writ and cure service irregularities.
• The court refused the extension but cured the irregularities, allowing the case to proceed.

The plaintiff initiated proceedings by writ of summons dated 22 December 2021, seeking damages for personal injuries and losses allegedly due to negligence by the first and second defendants related to medical care involving an 'Essure device' from 4 March 2012. The plaintiff also alleged misrepresentation, negligence, and breach of statutory duties against the third defendant concerning the device's development and manufacture.

The third defendant argued that the writ, issued on 21 December 2021, should have been served within 12 months or an application made to extend its validity before expiry. The writ, purportedly sent on 5 December 2022, was received on 23 January 2023. The defendant claimed service was defective as it was not in accordance with the Rules or the Companies Act 2006, and sought to set aside the writ.

The plaintiff conceded the writ's address was incorrect due to an error by a previous solicitor, which was repeated by the current solicitor. Despite this, the plaintiff argued the writ should be deemed served within its validity period, supported by a stamp confirming delivery on 5 December 2022.

The court considered the legal principles for extending writ validity under Order 6 Rule 7 and curing irregularities under Order 2 Rule 1. The court found no good reason for the delay in serving the writ and no satisfactory explanation for the late application to extend validity. Consequently, the application under Order 6 Rule 7 was refused.

However, the court noted the unique circumstances, including the defendant's prior acceptance of documents at the incorrect address in related cases. The court exercised its discretion under Order 2 Rule 1 to cure the service irregularities, allowing the case to proceed.

The court granted leave to amend the writ to reflect the correct address of the third defendant and scheduled a hearing for costs.

Legal representatives: Mr. Neeson BL (instructed by Arthur Cox Solicitors) for the Third Defendant. Mr. McIlroy BL (instructed by ӒMuirigh Solicitors) for the Plaintiff.

Judicial Panel: Master Harvey

Case Citation Reference: [2023] NI Master 11