AIG Europe Ltd v Fitzpatrick

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] IECA 99
• Docket Number: Record Number: 2018/125
• Court: Court of Appeal (Ireland)
• Date: 09 April 2020

BETWEEN/

AIG EUROPE LIMITED

RESPONDENT

- AND -

ANTHONY FITZPATRICK

APPELLANT

[2020] IECA 99

Whelan J.

Donnelly J.

Power J.

Record Number: 2018/125

THE COURT OF APPEAL

Summary proceedings – Inordinate delay – Want of prosecution – Appellant seeking the dismissal of the proceedings for inordinate delay and/or want of prosecution – Whether the appellant identified prejudice of such a nature, extent and effect as warranted the striking out of the proceedings

Facts: Proceedings were instituted by way of summary summons on the 14th September, 2012 seeking payment of the sum of €250,000 as monies due and owing by the appellant, Mr Fitzpatrick, to the respondent, AIG Europe Ltd, pursuant to an agreement concluded on the 23rd February, 2012. The appellant appealed to the Court of Appeal against an order made by Meenan J in the High Court on the 13th March, 2018 refusing the appellant’s application to dismiss the proceedings for inordinate delay and/or want of prosecution pursuant to the inherent jurisdiction of the High Court. He further refused to set aside an ex parte renewal of the summary summons made by order of the High Court on the 12th January, 2015. The court further ordered the appellant to pay the costs. The grounds of appeal contended that the trial judge erred: (1) in law insofar as he failed to take cognisance of the principles in the case of Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459 which applied to the appellant’s High Court application; (2) by failing to grant the reliefs sought despite the delay of the respondent in prosecuting the summary proceedings; (3) in not holding the financial status of the appellant to be a sufficient ground of prejudice; and (4) in failing to take cognisance of the appellant’s legal submissions and the legal authorities opened by the appellant.

Held by Whelan J that the trial judge was correct in his conclusions in circumstances where the appellant failed to identify prejudice of such a nature, extent and effect which existed at the date of the application to dismiss for want of prosecution as warranted the striking out of the proceedings.

Whelan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 9th day of April, 2020

Introduction

1 This is an appeal against an order made by Meenan J. in the High Court on the 13th March, 2018 refusing the appellant's application to dismiss the within proceedings for inordinate delay and/or want of prosecution pursuant to the inherent jurisdiction of the High Court. He further refused to set aside an ex parte renewal of the summary summons made by order of the High Court on the 12th January, 2015. The court further ordered the appellant to pay the costs.

Background

2 The within proceedings were instituted by way of summary summons on the 14th September, 2012 seeking payment of the sum of €250,000 as monies due and owing by the appellant to the respondent pursuant to an agreement concluded on the 23rd February, 2012. It does not appear to be in dispute that by virtue of the terms of the said agreement the appellant was obliged to pay €250,000 within six weeks of the 23rd February, 2012 to the respondent's predecessor, Chartis Europe Limited, and that the said sum was not paid.

3 The summary summons was not served by the respondent within the time allowed by the Rules of the Superior Courts.

4 On the 12th January, 2015 an order was made ex parte by Noonan J. in the High Court extending time for the renewal of the summons. The order which was perfected on the 12th January, 2015 makes reference to the renewal “of the Plenary Summons”. The court also made an order pursuant to 0.8, r.1 of the Rules of the Superior Courts that the summons be renewed for a period of six months from the said date. An order for substituted service was made permitting service to be effected on the appellant at two specific addresses; one in County Clare, the other in Limerick City.

Delays between the 14th September, 2012 and the 12th January, 2015

5 This initial period of delay extended over two years.

6 In an affidavit sworn by Wayne Finn on the 28th September, 2017 there is exhibited a note signed by John Somers regarding attempted service of the summary summons on the appellant at addresses at Limerick City and at Sixmilebridge, County Clare. It records that on the 1st November, 2012, about six weeks after the issue of the summary summons, Mr. Somers called to the appellant's residence at Sixmilebridge, County Clare. He spoke with the appellant's son Barry and “he told me that he was not there and was at work. I left my mobile number with him. I identified myself to him. I told him I represented Holmes O'Malley Sexton Solicitors, Limerick.”

7 Some days prior, on the 22nd October, 2012, the summons server had attended the appellant's residence in Sixmilebridge and was informed that he was not at home. Mr. Somers also attended the appellant's place of business on the 22nd October, 2012: “I rang Anthony Fitzpatrick and told him who I was and who I represented … I asked to meet him and he told me he was not available.”

8 On the 25th October, 2012 Mr. Somers rang the appellant at 1.50pm and the appellant told him he was busy. Mr. Somers states:-

“I asked him to ring me when he was ready and he never rang me. I rang him at 5.50pm the same day again and I got no answer. Over the last two or three weeks I have called to Anthony Fitzpatrick's office in Newenham Street, Limerick City and the receptionist there told me he was at meetings and that he was busy on each occasion.”

Mr. Somers also attended at the County Clare residence of the appellant on the 30th October, 2012 in the evening. Mr. Somers was informed by an individual who stated he was the appellant's son that “his father had not come home from work yet.”

9 In a second note exhibited in the affidavit of Wayne Finn, Mr. Somers describes two further attempts to effect service on the 13th and 14th December. 2012. Thus it appears that several attempts were made to effect service within a concentrated period of about eight weeks in the months of October. November and December 2012.

10 Two years later an ex parte application was made on the 12th January, 2015 seeking, inter alia, an order for substituted service. Service of the summary summons was effected by way of substituted service on the 6th February, 2015 and there is an affidavit of service sworn on the 11th February, 2015 confirming same.

6th February, 2015 to 11th May, 2017

11 This period of delay encompasses approximately two years and three months. The appellant failed to enter an appearance or engage with the proceedings in any way during this time. No step or effort was made to progress the litigation on the part of the respondent during this time either.

Events subsequent to service of a notice of intention to proceed

12 On the 11th May, 2017 notice of intention to proceed was served by the respondent. This appears to have prompted the appellant to belatedly enter an appearance on the 8th June, 2017 over two years after service of the proceedings upon him. The appellant then issued a motion on the 14th June, 2017 to strike out for want of prosecution and an order setting aside the ex parte renewal of the summary summons pursuant to O. 8, r. 2 made, as stated above, on the 12th January, 2015. The appellant invoked the inherent jurisdiction relying primarily on the decision in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

Decision of the High Court

13 In an ex tempore judgment delivered on the 13th of March, 2018 Meenan J. observed: -

“… there are a number of matters that have to be established before the court could accede to such an application. First I think it has to be accepted that there was undoubtedly delay on the part of the [respondent] in prosecuting these proceedings. It's an open question as to whether that delay was inordinate or not and various reasons have been put forward, in particular a failure on the part of the [appellant] to engage in these proceedings. But anyway, notwithstanding that, even if the delay was both inordinate and inexcusable, it is also incumbent on the [appellant] to outline to the court a prejudice that has arisen as a result of that delay, and of course counsel for the [appellant] has very correctly relied upon the case of Primor plc v. Stokes Kennedy Crowley, and it's entirely clear that in the course of that judgment the court makes expressly clear that even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against proceeding with the case. In other words, the [appellant] has to establish prejudice.”

With regard to prejudice the trial judge observed: –

“On the issue of prejudice, two matters have been put forward, firstly that the financial situation of the [appellant] is not good, and instances his own personal situation and also that of John Tobin. However, it seems to me that that could not possibly be prejudice. Firstly, if it be the case that these proceedings – as I will be refusing the application – proceed and the [appellant] is held liable, this is a debt that goes back to 2012 … if the [appellant's] financial situation has deteriorated since the date of the agreement, and if that agreement is validated, then that such is a failure on the part of the [appellant] not to pay a debt which a court may well find was lawfully due … that could not possibly amount to prejudice.”

The judgment continues at page 36, line 11: –

“The second matter is that the court's attention has been drawn to the fact that there are other proceedings which involve the former solicitors of the [appellant], and some details of these proceedings have been given, but however it seems to me again that these proceedings again do not disclose...