Cathal Gallagher v Martin Casey, Bridget Diamond (as personal representatives of Henry Joe Diamond (Deceased)) and Josephine Riney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry J. Abbott |
| Judgment Date | 24 August 2005 |
| Neutral Citation | [2005] IEHC 342 |
| Court | High Court |
| Docket Number | 316 CA/2004,[2004 No. 316 CA] |
| Date | 24 August 2005 |
[2005] IEHC 342
THE HIGH COURT
THE HIGH COURT ON CIRCUIT
COUNTY DONEGAL
BETWEEN
AND
BRENNAN v JUDGE SMITH & O'FLYNN UNREP MORRIS 1.2.1999 1999/3/508
CCR O.10 r 1
CCR O.59 r13
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S15
BANK OF IRELAND v SMYTH
RSC O.9 r9
RSC O.9 r14
FURLONG LAW OF LANDLORD & TENANT AS ADMINISTERED IN IRELAND 1869
MOHAN v ROCHE 1991 1 IR 560 1991 13 DULJ 159
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6 PARA 1
SUOMINEN v FINLAND UNREP ECHR 1.7.2003
VAN DE HURK v NETHERLANDS 1994 18 EHRR 481
DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2
COURTS OF JUSTICE ACT 1947 S16
MCHALE v DEVALLY & DUBLIN CO COUNCIL UNREP LARDNER 20.5.1993 EX-TEMPORE
MCKENNA v DEERY 1998 1 IR 62
SPORTS ARENA LTD v DEVALLY & DPP UNREP KINLEN 30.7.1998 1998/31/12368
COURTS OF JUSTICE ACT 1936 S38(8)
COURTS OF JUSTICE ACT 1936 S38
DOLAN v CORN EXCHANGE 1975 IR 315
CONSTITUTION ART 34.4.3
ANDREWS PRODUCTIONS LTD v GAIETY THEATRE 1973 IR 295
LANDLORD & TENANT ACT 1931 PART III
CONSTITUTION ART 34
COURTS OF JUSTICE ACT 1936 PART IV
COURTS OF JUSTICE ACT 1936 S39
PRACTICE AND PROCEDURE
Civil bill
Issuing of civil bill - Whether civil bill validly issued - Whether proceedings against third defendant a nullity due to defects in issuing of civil bill - Brennan v Smith (Unrep, Morris J., 1/2/1999) followed - Circuit Court Rules 1950, O 10, rr 1 & 2 - Held that defect in Civil bill not fatal
PRACTICE AND PROCEDURE
Preliminary issue
Duty to give reasons - Interim ruling -Whether High Court obliged to give written reasons for interim ruling - Dublin City Council v Fennell [2005] IESC 33 [2005] 1 IR 33 and Van de Hurk v Netherlands [1994] ECHR 14 considered - European Convention on Human Rights, art 6 - European Convention on Human Rights Act 2003 (No 20), s 2 - Held there was no duty to give reasons for interim ruling
Facts: The appellant appealed against a declaratory order of the Circuit Court regarding the claims of the second and third name defendants. The appellant raised a number of preliminary objections, namely that the amended Civil Bill by which she was joined as a third defendant by order of the Circuit Court was not stamped and accordingly was not issued. The appellant also submitted that there was non-compliance with the rules of the Circuit Court requiring proof that there was no person in possession of the premises who was not party to the proceedings.
Held by Abbott J. in favour of the respondent:
1. That although the failure to produce a court stamped version of the copy of the Civil Bill naming the appellant as a defendant amounted to a defect in the issuing of the Civil Bill under the Circuit Court Rules, the proceedings were not a nullity because the appellant applied in the first instance to the Court to be added as a party and accordingly she was estopped from denying that she was a party. Furthermore, the appellant sought to obtain the benefit of, and adopted the defence of the second named defendant, which included a counterclaim and therefore she was a willing participant in the proceedings.
2. That the lack of proof that there was no person in possession of the property other than the parties joined was not such as to render invalid the proceedings.
Reporter: L.O'S.
INTERIM JUDGMENT of Mr. Justice Henry J. Abbott delivered on the 24th August, 2005 .
This matter came on for appeal in the April Sessions of the High Court on Circuit County of Donegal. The order appealed was made in the Circuit Court on 24 th April, 2002. This judgment deals with the appeal of Josephine Riney who now effectively represents the interests of Bridget Diamond and Josephine Riney. The order of the Circuit Court is a declaratory order as regards the claims of the Diamond and Riney defendants. This appeal had been in the Appeals List in Donegal on previous occasions and by notice of motion dated 14 th October, 2002, the defendant appellant Josephine Riney issued a notice of motion seeking five reliefs in respect of preliminary objections which are set out in detail from (i) to (xxci). This notice of motion was grounded upon the affidavit of the said Josephine Riney sworn on 14 th October, 2002. This is a long affidavit and refers to many exhibits therein. When the appeal came on for hearing on 14 th October, 2002, the Court dismissed the said motion and reserved the costs thereof and adjourned the appeal from the order of the Circuit Court dated 24 th April, 2002, to the next sitting of the High Court in Letterkenny. When the appeal was opened before me it was objected on behalf of the plaintiff that as Josephine Riney claimed to be the person having power of attorney of Bridget Diamond in respect of the premises to which the proceedings related that she did not have an interest in the premises and therefore had no standing as a defendant. I rejected this submission not so much by reason of the fact that the power of attorney had the effect of assigning any interest of Bridget Diamond to Josephine Riney, but by reason of the fact that Josephine Riney, being a personal litigant, should have an opportunity to state her case, and, if it transpired that Bridget Diamond had in fact had an interest in the property, then in the interest of fairness, Josephine Riney might be given a chance to perfect whatever transaction of assignment might have been agreed in substance with Bridget Diamond. The appellant Josephine Riney then raised a number of preliminary objections as follows:-
1. That the amended Civil Bill by which she was joined as a third defendant by order of the Circuit Court dated 3 rd October, 2002 was not issued and she challenged counsel for the plaintiff to produce the original Civil Bill. During the course of the hearing it transpired that by what she meant as the original Civil Bill as the Civil Bill bearing the Circuit Court stamp, indicating that the Civil Bill was issued out of the Circuit Court, before service upon her.
2. That the plaintiff Cathal Gallagher being a beneficiary of the will of the deceased, and legal personal representative of the deceased, did not have title to initiate the proceedings as the plaintiff only vested the property in himself by assent made after initiation of the proceedings.
3. That there was non-compliance with the rules of the Circuit Court requiring proof that there was no person in possession of the premises who was not party to the proceedings.
I considered that in respect of the second two objections the order of the High Court made in respect of the notice of motion dated 14 th October, 2002 dealt with the matter and that, accordingly it was res judicata. However in respect of the first objection, relating to the allegation of non issue of the amended Civil Bill to include Josephine Riney as a defendant, I am not absolutely sure that the notice of motion raised all the issues referred to by Josephine Riney in the hearing before me, and accordingly I ruled thereon de novo and now set out the reasons for same.
Josephine Riney was joined by order of the Circuit Court of 3 rd day of October, 2000, and the operative part of the order reads as follows ....
2 "(2) That Josephine Riney be joined as an additional defendant in the proceedings
(3) That Josephine Riney the third named defendant do have 21 days from the date hereof for filing an appearance in delivery of defence".
The book of pleadings furnished for the appeal does not show that any defence was delivered by Josephine Riney but a defence and counter claim dated 13 th April, 1999 was filed on behalf of Bridget Diamond through whom Josephine Riney "claims", and the court stamp indicates that it was filed on or around 13 th April, 1999. The present Circuit Court Rules came into operation on 3 rd December, 2001, and as the order joining Josephine Riney was made on 3 rd October, 2000 the procedures by which the subsequent proceedings against Josephine Riney are to be judged depend on the requirements of the rules which pre-dated the "2001 Circuit Court Rules" the position as I understand it would be the same as that found by Morris J. in Brennan v. Judge Smith and Others (Unreported, High Court, Morris J., 1 st February, 1999) where he seems to accept the submissions of the applicant in that case as follows at p. 7 :-
"1. Order 10 of the Circuit Court 1950 as amended by S.I. 155 of 1990 and S.I. 216 of 1995 provides:"
1. Every Civil Bill or other originating document shall before service be stamped and endorsed with the date and the amount paid therefore provided by law and unless so stamped and endorsed shall have no effect or force.
2. Save as otherwise provided in these rules every Civil Bill or other originating document shall be issued out of the office of the Court in a county having jurisdiction pursuant to these rules and such Bill or other originating document shall be dated with the date of issue, sealed and marked with the record number by the proper officer and shall thereupon be deemed to be issued ... but no Civil Bill or other originating shall be deemed to have issued in accordance with these Rules unless dated, sealed, marked and issued by the proper officer as aforesaid".
In that case it was submitted that while Rule 1 was complied with and that the Civil Bill was stamped, it had not been issued...
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