Application to set aside renewal of summons refused where plaintiff established special circumstances explaining delay

Application to set aside renewal of a personal injuries summons – medical negligence claim – summons not served within one year – summons lapsed in January 2018 – application to renew made in January 2020 – Court rules amended in 2018, changing the applicable test from good reason to special circumstances – higher bar to surmount – onus on the plaintiff – each case must be decided on its own facts – balance of justice must be considered – delay in bringing the motion to set aside renewal of the summons lay with the plaintiff’s solicitor and not the defendant – failed to answer correspondence in a timely fashion – application to exclude evidence – plaintiff failed to tell them the basis for the extension of time – not a basis to exclude the affidavit evidence as no new arguments were being made – must act with expedition when seeking and obtaining expert medical opinion that is reasonably required – particularly so where the two year period provided by the statute of limitations has expired and a protective summons has been issued – the solicitor on the summons adopted the position that they were not acting from the plaintiff – the solicitor that was eventually identified as acting, did not have a practising certificate during the relevant period of delay – the plaintiff did not appear to understand that this solicitor was acting for him – unusual circumstances - special circumstances explaining the delay – reasonable expedition between January and December 2019 to obtain a medical report – onus to move with expedition was not as pronounced at the time as it is now – solicitors waited an extended period for a file to be delivered before seeking medical opinion - to apply the special circumstances test at a time period where it had not yet come into force runs the risk of offending against the principle of non-retrospective application of legislation – delay in moving matters between June 2018 and December 2019 cannot be treated as precluding the plaintiff from having established the special circumstances test – balance of justice – no real detriment to the defendants – records are likely to determine the case – significant prejudice to the plaintiff if case is statute barred – Where a decision is made to seek to set aside the renewal of summons this must be done quickly - second named defendants delay in bringing the application should not be ignored – inordinate and no excuse offered for same – first named defendant’s delay was justified where the plaintiff failed to provide the necessary information – plaintiff has established special circumstances – balance of justice favours renewal of the summons – reject application of both defendants to set aside the order renewing the summons.