Berrill v Kenmare Property Finance Dac
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 13 April 2023 |
| Neutral Citation | [2023] IEHC 174 |
| Court | High Court |
| Docket Number | 2022 No. 112 CA |
[2023] IEHC 174
2022 No. 112 CA
THE HIGH COURT
CIRCUIT APPEAL
Damages – Bound to fail – Abuse of process – Plaintiffs appealing against an order dismissing the proceedings – Whether the proceedings were bound to fail and/or represented an abuse of process
Facts: The plaintiffs, Mr Berrill, Mr D McCarthy and Mr J McCarthy (the debtors), instituted proceedings before the Circuit Court on 5 November 2020. The principal relief sought in the proceedings was damages in the sum of €39,000 together with interest. The defendant, Kenmare Property Finance DAC (the creditor), brought a motion seeking to have the proceedings against it dismissed on the basis that the proceedings were bound to fail and/or represented an abuse of process. More specifically, it was asserted that the plaintiffs’ claim was bound to fail by reason of it having been the subject of a prior accord and satisfaction between the parties. The defendant succeeded in its application before the Circuit Court and an order was made dismissing the proceedings on 1 June 2022. The plaintiffs brought an appeal against that order to the High Court. The appeal was heard before Simons J on 30 March 2023. On that date, he delivered a short ex tempore ruling explaining why the appeal would be allowed and the defendant’s motion dismissed. He also indicated to the parties that he would deliver a written judgment on the matter after Easter.
Held by Simons J that the dispute between the parties in the proceedings was wholly unsuitable for the trial of a preliminary issue. He held that this was because there was a significant factual dispute between the parties as to the nature of the agreement between them; in particular, the accord and satisfaction asserted by the defendant was said to be found in a handful of emails from December 2019 and February 2020. He held that there was no consensus that those emails represented or reflected the entire agreement between the parties. He held that the application to adjourn the hearing to allow additional evidence to be adduced was refused in circumstances where the creditor could not be said to have been unfairly taken by surprise and where no material prejudice was caused to it in its defence of the proceedings. He held that an adjournment of the application to dismiss would serve only to cause further unnecessary delay. He held that the proceedings could not be safely determined without the benefit of discovery and oral evidence. He held that it was not possible for the court to determine, on the basis of an incomplete set of correspondence, that the parties were ad idem on the question of whether the debtors were to pay an additional sum of €39,000 over and above the figure of €1,400,000 under the settlement agreement. Accordingly, he refused the application to dismiss the proceedings on a summary basis. He held that the proceedings would go to full hearing before the Circuit Court.
Simons J allowed the appeal. He held that the order of the Circuit Court of 1 June 2022 would be set aside, and an order made in lieu refusing the defendant’s application to dismiss the proceedings on a summary basis (as per the notice of motion of 24 June 2021). His provisional view was that the plaintiffs, having been entirely successful in their opposition to the defendant’s motion, were entitled to recover the allowable costs of the motion before the Circuit Court and the High Court. He held that the allowable costs before the Circuit Court included the legal costs. As the plaintiffs appeared as litigants in person before the High Court, i.e. without legal representation, he held that the allowable costs before the High Court were confined to their expenses and outlay.
Appeal allowed.
The plaintiffs appeared as litigants in person
Eoin Martin for the defendant instructed by Maples and Calder (Ireland) LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 13 April 2023
This matter comes before the High Court by way of an appeal from the Circuit Court. The defendant has brought a motion seeking to have the proceedings against it dismissed on the basis that the proceedings are bound to fail and/or represent an abuse of process. More specifically, it is asserted that the plaintiffs' claim is bound to fail by reason of it having been the subject of a prior accord and satisfaction between the parties.
The defendant succeeded in its application before the Circuit Court and an order was made dismissing the proceedings on 1 June 2022. The plaintiffs have brought an appeal against this order to the High Court.
The appeal was heard before me on 30 March 2023. On that date, I delivered a short ex tempore ruling explaining why the appeal would be allowed and the defendant's motion dismissed. I also indicated to the parties that I would deliver a written judgment on the matter after Easter. This judgment sets out the detailed reasons for my decision to allow the appeal.
The application to dismiss is advanced on the basis that this is a “documents case”, i.e. the resolution of the proceedings turns on the interpretation of emails exchanged between the parties' respective solicitors. Accordingly, it is said that this is not a case where oral evidence would be decisive.
The approach to be taken to an application to dismiss in respect of a “ documents case” has been considered by the Supreme Court in Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21, [2014] 2 I.R. 301 and in Keohane v. Hynes [2014] IESC 66. The approach to be taken to an application to strike out or to dismiss proceedings will differ slightly in circumstances where the underlying proceedings turn on the interpretation of (agreed) contractual documents. More specifically, the court may be able to resolve straightforward issues of contractual interpretation on a summary application without the risk of injustice to the parties. This is subject to a number of provisos as follows. First, there must be no factual dispute as to the validity of the contractual documents. Secondly, it must be accepted that the contractual documents represent the entire agreement between the parties. If, for example, one of the parties alleges that the interpretation of the contract must be informed by oral representations or that a collateral contract exists between the parties, then these are issues which can normally only be properly resolved by a plenary hearing on oral evidence. Thirdly, the contractual documentation must be capable of interpretation on its own terms, i.e. without resort to extrinsic evidence. Finally, the legal issues must be straightforward.
In cases where these provisos are fulfilled, it may be legitimate for the court to consider the terms of the contractual documentation on a summary application. If the court concludes that no reasonable interpretation of the contractual documentation could give rise to a claim on the part of a plaintiff—even assuming that all of the facts alleged by the plaintiff would be established at trial—then the proceedings can be dismissed as an abuse of process.
For completeness, it should be recorded that the notice of motion seeks, in the alternative, an order pursuant to Order 34 of the Circuit Court Rules determining, as a preliminary issue tried on affidavit, that the plaintiffs' claim was the subject of a prior accord and satisfaction between the parties and should be dismissed.
The Supreme Court in Cafolla v. O'Reilly [2017] IESC 17, [2017] 3 I.R. 209 held that while the question of prior accord and satisfaction was, in principle, capable of being dealt with by way of a preliminary issue, a complex case where the issues of accord and satisfaction were not clear-cut required evidence and further argument before a court could conclude that the claims were precluded.
The dispute between the parties in the present proceedings is wholly unsuitable for the trial of a preliminary issue. This is because there is a significant factual dispute between the parties as to the nature of the agreement between them. In particular, as discussed presently, the accord and satisfaction asserted by the defendant is said to be found in a handful of emails from December 2019 and February 2020. Crucially, however, there is no consensus that these emails represent or reflect the entire agreement between the parties.
These proceedings have their genesis in an earlier settlement agreement entered into as between the plaintiffs and the defendant on 29 May 2018. To avoid any possible confusion between (i) this earlier settlement agreement, and (ii) the accord and satisfaction which Kenmare Property Finance alleges was reached in February 2020, all references in this judgment to “ the settlement agreement” should be understood as referring to the settlement agreement executed on 29 May 2018.
The settlement agreement was executed in the context of two sets of High Court proceedings. These bore the following record numbers: 2016 No. 2208 S and 2017 No. 6839 P (collectively, “ the debt collection proceedings”). It should be explained that the debt collection proceedings related to loan facilities entered into by Mr. John Berrill with Anglo Irish Bank Corporation. This indebtedness had, seemingly, been guaranteed by Mr. Denis McCarthy and Mr. Jeremiah McCarthy. The security for the loan facilities included a mortgage over certain lands in County Louth (“ the mortgaged property”). The loan facilities and security were subsequently transferred to Kenmare Property Finance in May 2014.
The parties will be described in this judgment by reference to their respective positions under the settlement agreement rather than as plaintiffs or defendants....
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Berrill and Others v Kenmare Property Finance DAC
...on 15 May 2023 1 This court delivered a written judgment in this matter on 13 April 2023: Berrill v. Kenmare Property Finance DAC [2023] IEHC 174. In brief outline, this court refused an application, brought by way of motion, to have the proceedings dismissed on the basis that they were bou......