Cecila Onyenmezu t/a Norlia Recruitment Service v Firstcare Ireland Ltd, Firstcare Ireland (Blainroe) Ltd, Firstcare Ireland (Earlsbrook) Ltd, Firstcare Ireland Kilcock Ltd, Beneavin House Ltd, Beneavin Lodge Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 25 January 2022
• Neutral Citation: [2022] IECA 11
• Docket Number: High Court Record No. 2018/743 S
• Court: Court of Appeal (Ireland)

Between

Cecila Onyenmezu t/a Norlia Recruitment Service

Plaintiff/Appellant

and

Firstcare Ireland Limited, Firstcare Ireland (Blainroe) Limited, Firstcare Ireland (Earlsbrook) Limited, Firstcare Ireland Kilcock Limited, Beneavin House Limited, Beneavin Lodge Limited

Defendants/Respondents

[2022] IECA 11

Whelan J.

Murray J.

Pilkington J.

High Court Record No. 2018/743 S

Court of Appeal Record No. 2020/64

THE COURT OF APPEAL

CIVIL

Summary judgment – Contract – Uncertainty – Plaintiff seeking summary judgment – Whether the trial judge erred in finding that the agreement was affected by an uncertainty that justified the refusal of summary judgment

Facts: The plaintiff, Ms Onyenmezu, between 23 May 2015 and 18 January 2018, provided services in the form of temporary and relief staff to the second to sixth defendants, First Care. Following some initial disagreement as to the precise sums due to her in respect of the services provided in 2015, the plaintiff was paid for the services she rendered in that year. She said that she had been paid nothing in respect of the services she provided in 2016 and 2017. She sought to recover the monies she said were due for those years in accordance with what she alleged was the agreement between the parties. This was said by her to amount to a total of €749,353.40. The plaintiff appealed to the Court of Appeal against the refusal of the High Court ([2020] IEHC 36) to grant the plaintiff summary judgment against the defendants in that sum. In the course of the affidavit evidence exchanged in connection with the application for that relief, the defendants at no point disputed that the plaintiff had provided the alleged services to the defendants, never identified any respect in which it was said that the plaintiff’s calculation of the value of those services was other than correctly reflected in her claim, never averred that the contractual documentation relied upon by the plaintiff did not reflect the agreement between the parties, did not dispute that the charges alleged by the plaintiff to have been agreed had been agreed, and did not contend that the plaintiff had in fact been paid for the services rendered during that period. However, the defendants’ counsel in the course of oral argument before the High Court claimed that there was sufficient uncertainty around the contractual relationship between the parties to afford the defendants with an arguable defence to the claim. The High Court judge agreed, refusing the application for summary judgment on that basis. The plaintiff contended that she erred in so doing.

Held by Murray J that the trial judge erred in finding that the case necessitated a plenary hearing, and specifically in finding that the agreement was affected by an uncertainty that justified the refusal of summary judgment. Murray J held that the plaintiff in her evidence had established clear and definite terms governing the payment for the services rendered by her, and in the absence of credible evidence from the defendants that those terms had not been agreed (and there was no such evidence), there was no basis for the conclusion that there was any uncertainty affecting the entitlement of the plaintiff to recover the amounts she said were due to her.

Murray J held that as the plaintiff had been entirely successful in her appeal, it was his provisional view that she was entitled to her costs of the hearing in both the Court of Appeal and the High Court.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 25 ^th day of January 2022

1 . The plaintiff operates a business recruiting and supplying temporary and relief staff to the health care sector. She trades under the name ‘ Norlia Recruitment Services’ (‘ Norlia’). The second to sixth defendants are companies that own or operate nursing homes, those homes being managed by the first defendant. Where not necessary to distinguish between them, I shall refer to the defendants throughout as ‘ First Care’.

2 . It is common case that between 23 May 2015 and 18 January 2018 the plaintiff provided services in the form of temporary and relief staff to the second to sixth defendants. Following some initial disagreement as to the precise sums due to her in respect of the services provided in 2015, the plaintiff has been paid for the services she rendered in that year. She says that she has been paid nothing in respect of the services she provided in 2016 and 2017. In these proceedings she seeks to recover the monies she says are due for those years in accordance with what she alleges was the agreement between the parties. This is said by her to amount to a total of €749,353.40.

3 . This appeal is against the refusal of the High Court ( [2020] IEHC 36) to grant the plaintiff summary judgment against the defendants in that sum. In the course of the affidavit evidence exchanged in connection with the application for that relief, the defendants at no point disputed that the plaintiff had provided the alleged services to the defendants, never identified any respect in which it was said that the plaintiff's calculation of the value of those services was other than correctly reflected in her claim, never averred that the contractual documentation relied upon by the plaintiff did not reflect the agreement between the parties, did not dispute that the charges alleged by the plaintiff to have been agreed had been agreed, and did not contend that the plaintiff had in fact been paid for the services rendered during this period. However, the defendants' counsel in the course of oral argument before the High Court claimed that there was sufficient uncertainty around the contractual relationship between the parties to afford the defendants with an arguable defence to the claim. The High Court judge agreed, refusing the application for summary judgment on that basis. The plaintiff now contends that she erred in so doing.

4 . There were four affidavits before the court sworn in connection with the application for summary judgment – two of these were sworn by the plaintiff (on the 28 September 2018 and the 18 December 2019) and two were sworn on behalf of the defendants by their Chief Executive Officer, Mervyn Smith (18 December 2018 and 17 December 2019). For ease of reference I will refer to these affidavits respectively as CO1 and CO2 and MS1 and MS2. The defendants required leave of the court to file the latter affidavit (the hearing took place on January 13 2020). Although thus delivered late, and very shortly before the hearing, that affidavit did not suggest any lack of certainty to the terms of the agreement between the parties – either generally or with regard to the amounts due under the relevant agreement.

5 . As between her two affidavits, the plaintiff's evidence was that the services were initially provided pursuant to a written contract dated 23 May 2015, this being subsequently amended on 7 and 15 November 2016. This written agreement is referred to throughout as the ‘ Service Level Agreement’ (‘ the SLA’). It is the plaintiff's case that this contract was initially entered into with the fifth named defendant, having been signed by its financial director. Thereafter, she said, services were provided to the second, third, fourth and sixth named defendants on foot of various parol agreements the effect of which was that each of these defendants adopted the terms of the SLA. The plaintiff exhibited invoices (issued on 7 December 2016, 7 December 2017 and 11 January 2018) with details of the hours worked by the staff employed by the plaintiff including the time worked, whether the staff were nurses or health care assistants, the amount charged and the date on which the services were provided, detailing from there the sums she said were due from each of the defendants. In respect of the second to sixth defendants these were said to be (respectively) €100,606.14, €168,716.99, €220,518.31, €200,326.04, and €59,185.92. The plaintiff contended that the first defendant was liable either jointly with the other defendants or severally for the entire amount.

6 . It is of some importance that at paragraph 12 of CO1 the plaintiff identified the terms according to which she said she had agreed to provide temporary nursing staff to the second to sixth defendants, asserting that these had been agreed in writing. She alleged four terms:

• (a) That the defendants agreed to pay for the plaintiff's services in accordance with the schedule of hourly rates agreed in the contract;

• (b) That upon submitting a time sheet on the completion of services by temporary staff and upon verification thereof the defendants would pay the sums due on receipt of the corresponding invoice within fourteen days;

• (c) That the defendants would pay the fees equal to the amount of hours detailed in the invoice, those fees being subject to change;

• (d) That this agreement was varied by written agreement on or about the 7 and 15 November 2016.

7 . At no point in either of his two replying affidavits did Mr. Smith raise any issue around the plaintiff's claim that the contract comprised the SLA as modified in the way contended by her. None of the terms alleged at paragraph 12 of CO1 were controverted. Nonetheless, Mr. Smith said that the amount claimed by the plaintiff was not due or owing by the defendants at all, and that the books and records of the defendants did not disclose any unpaid invoices due and owing to the plaintiff by the defendants or any of them. The reason he said that no monies were due and owing was that (he contended) certain alleged contractual conditions had not been complied with by the plaintiff. He said that agreed protocols had not been observed, that there had been a breach of the SLA and that additional charges had been imposed above and beyond the terms agreed in the SLA.

8 . In this regard, Mr. Smith said that there...