Allied Irish Bank Plc v O'Driscoll
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 02 April 2020 |
| Neutral Citation | [2020] IEHC 253 |
| Docket Number | [2014 No. 2586 S] |
| Court | High Court |
| Date | 02 April 2020 |
[2020] IEHC 253
MacGrath J.
[2014 No. 2586 S]
THE HIGH COURT
Summary summons – Renewal – Jurisdiction – Defendant seeking to set aside the renewal of a summons – Whether the court which renewed the summons had jurisdiction to do so
Facts: The plaintiff, Allied Irish Bank PLC, issued a summary summons on 20th October, 2014 claiming the sum of €225,000 allegedly due on foot of a guarantee executed by the defendant, Mr O’Driscoll, on 22nd May, 2006. The summons was not served within the requisite twelve month period. On 30th November, 2015 application was made for an order to renew the summons and to extend the time for service. On 30th November, 2015, Faherty J made an order renewing the summons for a period of six months. An order was sought deeming personal service on Mr O’Driscoll’s wife on the 19th April, 2016 to be good and sufficient. In the alternative the plaintiff sought an order extending time to renew the summons and granting the plaintiff leave to renew the summons pursuant to O. 8, r. 1 of the Rules of the Superior Courts. The application was grounded on affidavits of Ms Grady, the solicitor representing the plaintiff, and a summons server, Mr Meade. On 20th October, 2014, Ms Grady instructed Mr Meade to effect service and she believed, in accordance with O. 9, r. 2, that he exercised reasonable diligence in his attempts at service. The perfected order of 13th February, 2017 recorded that Humphreys J ordered that the time for applying for renewal of the summons be extended to the date of the order and, pursuant to O. 8, r. 1, that the summons be renewed for a period of six months from that date. The defendant applied to the High Court to set aside the renewal of the summons on the ground that the court which renewed the summons did not have jurisdiction to do so. The plaintiff opposed the application and maintained that any alleged want of jurisdiction had been cured by the entry of an appearance by the defendant to the summons. Two principal issues arose for consideration. The first was the jurisdiction of the court to renew a summons which had previously been renewed but not served within the renewed period. The second related to the effect of an entry of an appearance in such circumstances.
Held by MacGrath J that this was one of the limited situations in which the court ought to exercise its jurisdiction under O. 122, r. 7, to extend the time in which to make application for renewal and service of the summons, and that there were compelling reasons to do so. MacGrath J noted that the plaintiff made several attempts at service, no significant issue of fact averred to in the affidavits of Ms Grady or Mr Meade had been contested, and the address in respect of which the order for substituted service was made and the address upon which the proceedings were subsequently served pursuant to the order for substituted service was the same address upon which the plaintiffs had sought to effect service on in April, 2016 and again in April, 2017. MacGrath J held that if the claim was to be recommenced, it would be faced with a plea that it was statute barred, a plea which may be successful. MacGrath J found that the defendant was aware of his potential liability and that a claim might be made from an early stage. MacGrath J held that the balance of justice favoured the exercise of the court’s jurisdiction in favour of the plaintiff.
MacGrath J held that he would refuse the relief sought by the defendant.
Application refused.
This is the defendant's application to set aside the renewal of a summons on the ground that the court which renewed the summons did not have jurisdiction to do so. The plaintiff opposes the application and maintains that any alleged want of jurisdiction has been cured by the entry of an appearance by the defendant to the summons. Two principal issues arise for consideration. The first is the jurisdiction of the court to renew a summons which has previously been renewed but not served within the renewed period. The second relates to the effect of an entry of an appearance in such circumstances.
It is important to record from the outset, that the issues under consideration concern, inter alia, the interpretation of O. 8, r. 1. and O. 122, r. 7 of the Rules of the Superior Courts, before they were amended by S.I. No. 482/2018 (Rules of the Superior Courts (Renewal of Summons) 2018, which came into effect on 11th January, 2019. The provisions of S.I. No. 482/2018 amend not only O. 8, r. 1 but also O. 122, r. 7 (in so far as it applies to applications made pursuant to O. 8). The amended rule was considered by Meenan J. in Murphy and Cullen v. A.R.F. Management Ltd [2019] IEHC 802. All references made hereunder to O. 8, r. 1 and O. 122, r. 7 are to those rules before their recent amendment, unless otherwise stated.
Order 8, r. 1. provided:-
“No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons …”
Order 8, r. 2 provides:-
“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 of motion to set aside such order.”
Order 122, r. 7, before the recent amendment, provides:-
“Subject to any relevant provision of statute, the Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”
For the sake of completeness, O. 122, r. 7 as amended by S.I. No. 482/2018 now reads:-
“(1) Subject to sub-rule (2) and to any relevant provision of statute, the Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the Court may direct, and any such enlargement may be ordered although the application for same is not made until after the expiration of the time appointed or allowed.
(2) Sub-rule (1) does not apply to any application to which Order 8 applies.”
Where a “renewed summons” is neither renewed nor served within the extended period, what is the jurisdiction of the court if application for further renewal is brought outside the period as extended? In Bingham v. Crowley [2008] IEHC 453 Feeney J. held that the High Court did not have jurisdiction under O. 8, r. 1, to extend a renewed summons outside the period of renewal. In Meagher v. Sandys [2016] IEHC 37, Baker J. supported this view and held that this was not altered by invoking the court's general powers to extend time limits under O. 122, r. 7. She observed that the general provisions of O. 122 could not prevail because “… such an interpretation would fail to give effect to the precise provisions which govern the relevant application, and an individual Rule which has the force of law.” However, dicta of Mahon J. in Crowe v. Kitara Limited [2016] IECA 62, which was delivered one month after the decision in Meagher and in which Meagher was considered, suggest that the position regarding the court's jurisdiction under O. 122, r. 7 was not so absolute.
The second issue is the effect of an entry of appearance to a summons which is renewed out of time. In Lawless v. Beacon Hospital [2019] IECA 256, Peart J. held that where a summons is not served within the time prescribed by the rules, it does not become a nullity and the entry of an appearance cures any deficiency in service. The circumstances in which renewal was sought in Lawless were not the same those which pertained in Bingham and Meagher. Lawless was concerned with an application to set aside a first renewal. The Court considered the legal effect of an appearance to a summons which had been served six months out of time. In light of objections made in correspondence the plaintiff made application to renew under O. 8, r. 1. There had been an exchange of particulars/replies before the application was brought. The issue which arises in this case is whether the entry of an appearance has the same legal effect where it is contended the court has no jurisdiction to renew the summons in the first place.
The plaintiff issued a summary summons on 20th October, 2014 claiming the sum of €225,000 allegedly due on foot of a guarantee executed by the defendant on 22nd May, 2006. The guarantee was executed for the purposes of securing a loan/account of Brian O'Driscoll Construction Limited (“ the company”). It is alleged that sums due on foot of guarantee become due and payable on demand. A letter of demand in respect of the debt was served on the company on 13th January, 2009. A letter of...
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