Caulfield v Bolger and Caulfield v Roche

JurisdictionIreland
Judgment Date31 January 1927
Date31 January 1927
CourtHigh Court (Irish Free State)
Caulfield v. Bolger and Caulfield v. Roche
WILLIAM CAULFIELD
Plaintiff
and
JOHN BOLGER
Defendant
and
WILLIAM CAULFIELD
Plaintiff
and
JAMES ROCHE
Defendant.

Practice - Pleading - Summary summons - Special indorsement - Claim for liquidated sum - Solicitor's costs - Indorsement defective - Amendment - Insufficient affidavit - Transfer of action from High Court to Circuit Court - Costs - Rules of High Court and Supreme Court, 1926 - Or. I, r. 2 - Or. II, r. 2 - Or. III, r. 1 (i) - Or. IV, r. 2 - Or. XV, rr. 1, 4, 5 -Attorneys and Solicitors (Ir.) Act, 1849 (12 & 13 Vict. c. 53), sect. 2 -Courts of Justice Act, 1924 (No. 10 of 1924), sects. 22, 25, 36.

An indorsement on a summary summons of a claim for £56 1s. 8d. for solicitors' costs, the indorsement not stating that a bill of the costs had been delivered to the client and no particulars being given, was held a defective special indorsement under Or. IV, r. 2, of the Rules of the High Court and Supreme Court, 1926.

Or. XV, r. 5, of these Rules does not confer a power to amend a plenary summons into such a form as to be a good summary summons.

The affidavit to be served with a summary summons pursuant to Or. XV, r. 1, of these Rules must satisfy the Court that, on the facts stated therein, the plaintiff is entitled in law to judgment for his cause of action or part thereof, and the service of what was known under the former practice as an"affidavit of debt," which merely states that the sum claimed is actually due, is insufficient.

Summary Summonses, transferred by the Master to the Judge's list pursuant to Or. XV, r. 4, of the Rules of the High Court and Supreme Court, made on the 13th day of July, 1926.

Two summary summonses were issued by William Caulfield, solicitor, Wexford, the defendant in one summons being John Bolger, and in the other James Roche.

In the first case (William Caulfield, plaintiff, v. John Bolger,defendant) the indorsement on the summary summons was as follows:—

"Special indorsement of claim.

The plaintiff's claim is for £56 1s. 8d., being money payable by the defendant to the plaintiff for work and attendances of the plaintiff by him done, performed, and bestowed, and moneys by him paid and expended as solicitor of and for the defendant at his request, and for fees payable by the defendant to the plaintiff in respect thereof.

(Signed) William Smyth & Son,

Solicitors for plaintiff."

An affidavit was served with this summons, and was as follows:—

"I, William Caulfield . . . the plaintiff in this cause, make oath and say that the sum of £56 1s. 8d., being the sum for which the plaintiff seeks judgment, is now actually due by the defendant to the plaintiff over and above all just and fair allowances."

In the second case (William Caulfield, plaintiff, v. James Roche, defendant) the indorsement on the summary summons was as follows:—

"Special indorsement of claim.

The plaintiff's claim is for £123 5s. 4d., balance of money payable by the defendant to the plaintiff for work and attendances of the plaintiff by him done, performed, and bestowed, and moneys by him paid and expended as solicitor of and for the defendant at his request, and for fees payable by the defendant to the plaintiff in respect thereof.

(Signed) William Smyth & Son,

Solicitors for the plaintiff."

The affidavit served with this summons was as follows:—

"I, William Caulfield . . . the plaintiff in this action, make oath and say that the sum of £123 5s. 4d., being balance of money payable by the defendant to the plaintiff for work and attendances of the plaintiff by him done, performed, and bestowed, and moneys by him paid and expended as solicitor of and for the defendant at his request, and for fees payable by the defendant to the plaintiff in respect thereof, being the sum for which the plaintiff seeks judgment, is now actually due by the defendant to the plaintiff over and above all just and fair allowances."

Each defendant having entered an appearance, the plaintiff set down both summonses for hearing by the Master of the High Court on 14th January, 1927. At the hearing before the Master objection was taken on behalf of both the defendants that the summonses disclosed no cause of action; that they were defective as summary summonses under Or. IV, r. 2, of the Rules of the High Court and Supreme Court, 1926; and that the procedure laid down by those Rules had not been complied with as to the service of the affidavit. In consequence of these objections, the Master transferred the two cases to the Judge's list. They were both heard together.

Cur. adv. vult.

Hanna J. :—These cases have been brought before the Court on the direction of the Master of the High Court for the determination of some questions of importance as to the interpretation of, and the practice under, the new Rules of Court with reference to proceedings by way of summary summons for a liquidated claim.

In Bolger's case, the plaintiff, who is a solicitor, had issued, on the 13th December, 1926, a summary originating summons (Form No. 2 in the Appendix to the Rules).

The indorsement on the said summons is as follows:—

"Special indorsement of claim.

The plaintiff's claim is for £56 1s. 8d., being money payable by the defendant to the plaintiff for work and attendances of the plaintiff by him done, performed, and bestowed, and moneys

by him paid and expended as solicitor of and for the defendant at his request, and for fees payable by the defendant to the plaintiff in respect thereof.

(Signed)...

To continue reading

Request your trial
12 cases
  • Starkey v Purfield
    • Ireland
    • High Court
    • 28 June 1946
    ...made by the Master, being a substantive order for amendment of the summons, was wrong, but on the authority of Caulfield v. BolgerIR, [1927] I. R. 117, and Seales v. MacSweeneyIR, [1944] I. R. 25, the Master would have had jurisdiction to make such an order in conjunction with adjourning th......
  • The Governor and Company of the Bank of Ireland v Seamus White
    • Ireland
    • High Court
    • 29 June 2018
    ...of the said defendant with the plaintiff ...' 7 The defendant asserts that the indorsement of claim does not meet the test set out in Caulfield v. Bolger [1927] I.R. 117, namely, '... t he special endorsement must be valid as a statement of claim...', an approach echoed by the Supreme Cour......
  • Allied Irish Banks Plc v Doran
    • Ireland
    • High Court
    • 11 January 2018
    ...has been made by the plaintiff to a number of cases, viz. Gold Ores Reduction Company Ltd v. Parr [1892] 2 Q.B. 14, Caulfield v. Bolger [1927] I.R. 117, Bank of Ireland v. Connell [1942] 1 I.R. 1, Stacey and Harding Ltd v. O'Callaghan [1958] I.R. 320, Bond v. Holton [1959] I.R. 302, and Gla......
  • Bank of Scotland Plc v Shovlin and Others
    • Ireland
    • High Court
    • 23 February 2012
    ...STREET LTD & BLACK TIE LTD UNREP CLARKE 1.6.2010 2010/13/3225 2010 IEHC 217 KIELY v MASSEY 1880 6 LRI 445 CAULFIELD v BOLGER & ROCHE 1927 IR 117 RSC O.28 r1 PRACTICE & PROCEDURE Summary judgments Real or bona fide defence - Arguable defence - Reasonable prospect of success - Power to amend......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT