Advanced Industrial Technology Corporation Ltd v Casey
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 16 June 2020 |
| Neutral Citation | [2020] IEHC 336 |
| Docket Number | [2015 No. 2859 P] |
| Court | High Court |
| Date | 16 June 2020 |
AND
[2020] IEHC 336
Richard Humphreys J.
[2015 No. 2859 P]
THE HIGH COURT
Statement of claim – Amendments – Fraudulent misrepresentation – Plaintiff seeking to amend statement of claim – Whether general criteria were satisfied
Facts: On 3rd June, 2003 Cork County Council brought civil waste management proceedings against Mr O’Regan and other defendants in relation to an illegal dump at Weir Island, Barryscourt, Carrigtwohill, Co. Cork. On 17th July, 2005 judgment was given by Clarke J in which he directed the respondents to commission a site investigation and report pursuant to s. 57 of the Waste Management Act 1996 as a necessary step towards making specific orders to ensure that the waste on the site in question was no longer such as to give rise to risk of environmental pollution. The solicitor defendants in this case (for practical purposes the first defendant), acted for the respondents to the waste management proceedings and in particular for Mr O’Regan. Subsequent to this judgment, the valuer defendants in these proceedings (the fourth and fifth defendants), issued a letter on 11th May, 2007 valuing the site in question at €1.3m. On the strength of that valuation, the plaintiff, Advanced Industrial Technology Corporation Ltd, extended loan facilities to Mr O’Regan in a total amount of £900,000 STG secured on the site. When Mr O’Regan defaulted on the loan in 2011, the plaintiff discovered that the land was effectively worthless as it had been used as an illegal landfill and was extensively polluted with construction waste. These proceedings against the plaintiff’s former solicitors and valuers were issued in 2015. On 16th November, 2016 the valuer defendants brought a motion seeking to strike out the plaintiff’s claim as statute barred and bound to fail. That was adjourned generally on 29th March, 2017. On 20th January, 2017 a reply was delivered by the plaintiff, para. 3 of which complained that the valuer defendants were in breach of duty, in particular, in breach of the duty “not to earn a secret profit or commission”. The valuer defendants then brought a second strike-out motion on 18th October, 2018 confined to striking out para. 3 of the plaintiff’s reply. That came on for hearing on 25th March, 2019. Two points were made by the valuer defendants: the lack of evidence for the plea; and that in any event it should have been in the statement of claim. Quinn J gave an ex tempore judgment on the motion striking out para. 3 of the reply, but giving liberty to the plaintiff to apply to amend the statement of claim. The proposed amended statement of claim extended the claim for fraudulent misrepresentation and deceit which was confined to the solicitor defendants so as to apply to all defendants (para. 21). It particularised that claim at para. 40 contending that the valuer defendants either misrepresented or concealed information. The grammar of para. 40 as drafted was somewhat mangled, although presumably the intention was to argue in essence that the valuer defendants made representations which they knew to be untrue or made representations reckless as to whether such representations were true or false or concealed information that they knew would have had a material bearing.
Held by the High Court (Humphreys J) that there were three general criteria that emerged from the jurisprudence that were endorsed by Peart J in B.W. v Refugee Appeals Tribunal [2017] IECA 296; the absence of irremediable prejudice, explanation and arguability. Humphreys J held that the test of absence of irremediable prejudice was satisfied, that the criterion of explanation was satisfied and that the requirements that the fraud be particularised and that the plea of fraud be backed up by evidence were satisfied.
Humphreys J held that he would allow the amendments sought to the statement of claim subject to the correction of the grammar and structure of para. 40 and hear from the parties as to the timescale and any consequential directions.
Amendments to statement of claim allowed.
On 3rd June, 2003 Cork County Council brought civil waste management proceedings against Louis J. O'Regan and other defendants in relation to an illegal dump at Weir Island, Barryscourt, Carrigtwohill, Co. Cork.
In separate criminal proceedings, Mr. O'Regan pleaded guilty to a waste management offence on 21st February, 2005 in his capacity as secretary of the company that was the second respondent in the waste management action, and was fined €100,000.
On 17th July, 2005 judgment was given by Clarke J., as he then was, in the civil action, Cork County Council v. O'Regan [2005] IEHC 208, [2009] 3 I.R. 39, in which he directed the respondents to commission a site investigation and report pursuant to s.57 of the Waste Management Act 1996 as a necessary step towards making specific orders to ensure that the waste on the site in question was no longer such as to give rise to risk of environmental pollution. The judgment notes that there were somewhere between 100,000 to 200,000 tonnes of waste on the site.
The solicitor defendants in the present case (for practical purposes the first-named defendant), acted for the respondents to the waste management proceedings and in particular for Mr. O'Regan.
Subsequent to this judgment, the valuer defendants in the present proceedings (i.e., the fourth and fifth-named defendants) issued a letter on 11th May, 2007 valuing the site in question at €1.3m. On the strength of that valuation, the plaintiff, a UK registered company, extended loan facilities to Mr. O'Regan in a total amount of £900,000 STG secured on the site.
When Mr. O'Regan defaulted on the loan in 2011, the plaintiff discovered that the land was effectively worthless as it had been used as an illegal landfill and was extensively polluted with construction waste. According to Cork County Council the clean-up costs were in the order of €42m.
On 21st April, 2011 the plaintiff issued summary proceedings against Mr. O'Regan [2011 No. 1731 S]. Those proceedings were adjourned to plenary hearing on 5th March, 2003 but not much seems to have happened to them since then.
The present proceedings against the plaintiff's former solicitors and valuers were issued in 2015 and seem to have had something of a tortured history with numerous procedural skirmishes in motions and correspondence. I am now dealing with the latest of those.
On 16th November, 2016 the valuer defendants brought a motion seeking to strike out the plaintiff's claim as statute barred and bound to fail. That was adjourned generally on 29th March, 2017.
On 20th January, 2017 a reply was delivered by the plaintiff, para. 3 of which complained that the valuer defendants were in breach of duty, in particular, in breach of the duty “not to earn a secret profit or commission”.
The valuer defendants then brought a second strike-out motion on 18th October, 2018 confined to striking out para. 3 of the plaintiff's reply. That came on for hearing on 25th March, 2019 and I am told that essentially two points were made by the valuer defendants; first of all, the lack of evidence for the plea; and secondly, that in any event it should have been in the statement of claim. Quinn J. gave an ex tempore judgment on the motion striking out para. 3 of the reply, but giving liberty to the plaintiff to apply to amend the statement of claim.
The effect of that order is that as matters stand right now, there is nothing specifically in the reply expressly addressing the point made by the valuer defendants regarding the statute of limitation in their defence, apart from the general traverse in para. 1 of the reply.
It now appears from legal submissions that even apart from making a concealment defence to the statute point, the plaintiff wants to assert an acknowledgement defence. For some reason that wasn't included in the now struck-out para. 3 of the reply, although whether that omission can be made good really depends on whether the statement of claim is to be amended, because if it is that will then trigger a sequence of further amended pleadings allowing an amended defence and an amended reply, at which stage such matters could be revisited (i.e., the plaintiff's replies to the defence of the statute could be set out).
The plaintiff sought to take up the liberty to seek to amend the...
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