Christopher Chambers v Rathcaled Developments Ltd

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date30 June 2021
Neutral Citation[2021] IEHC 458
Docket Number[2015 No. 786 P]
CourtHigh Court
Between
Christopher Chambers
Plaintiff
and
Rathcaled Developments Limited

and

SV Betong AS
Defendants

[2021] IEHC 458

[2015 No. 786 P]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 30 th June 2021 .

I
Background
1

. On 2 nd February 2015, Mr Chambers issued a personal injury summons against Rathcaled Developments Limited, claiming that, on 28 th January 2014, in the course of employment with Rathcaled, he suffered a fall.

2

. On 1 st November 2018, Mr Chambers obtained an order from the Master of the High Court joining SV Betong AS as a defendant to the proceedings, and an order granting liberty to issue and serve an amended summons on Betong. The critical portion of the Master's order states as follows:

IT IS ORDERED that SV Betong AS having its registered office at Dreierveien 25, Sandnes 4321, Norway be joined as Co-Defendants in this Action AND IT IS ORDERED that 1. The Plaintiff to have a period of twenty-eight days from the date hereof to issue and serve an Amended Summons.

3

. The application made before the order was grounded on an affidavit which exhibited an amended Personal Injuries Summons which it is proposed to issue. Key extracts from that amended proposed personal injuries summons are set out in Appendix A hereto.

4

. Mr Chambers subsequently obtained an ex parte order on 2 nd April 2019 granting a further period of five weeks (to 7 th May 2019) for compliance with the order of 1 st November 2018.

5

. On 7 th May 2019, Mr Chambers issued what purports to be a concurrent personal injuries summons. This summons bears a date of issue of 2 nd February 2015, the same date as the original personal injuries summons which issued as against Rathcaled and bears a stamp stating that it is issued pursuant to the Orders of 1 st November 2018 and 2 nd April 2019. Betong was served with this purported concurrent personal injuries summons on 7 th August 2019. Key extracts from that purported concurrent personal injuries summons are set out in Appendix B hereto.

6

. A number of points fall to be made about the purported concurrent summons. First, it does not bear the word ‘Amended’ anywhere on its face. Second, it does not include the underlining in the proposed amended summons. Third, it does not bear any indication which indicates that it has been amended in any way. Fourth, it does not indicate to Betong that it was joined as a defendant at a later date.

7

. While the court does not know quite how the document that issued came to contain the just-described errors, it is accepted by the defendants that what occurred was innocently done. The court turns to consider the applicable law later below. However, by way of general observation it notes that innocent technical error which, as here, is fully and honestly admitted and yields no prejudice to an ‘affected’ person is unlikely generally to yield more than a knowing nod from judges who have themselves been in practice and who know that there are few, if any, legal practitioners of any experience who have not committed a technical faux pas at some point which has not resulted in any prejudice. That is not to say that legal professionals should now rush to err (as if they would) not least though not only because if one errs one ends up depending on one's colleagues or a judge not to magnify an innocent technical error into something that it is not, and it is better not to find oneself placed in such a position of dependence.

II
The Summons that/as Issued
8

. Returning again to the affidavit sworn in support of the within application, the court respectfully does not see that the above-described errors have culminated in the legal and procedural travesty for which Betong contends. The deponent for Betong avers as follows:

9

[N] or did it [the summons] include the underlining present in the proposed amended Personal Injuries Summons”; [3] The Summons does not bear any indication anywhere, either in its title, its content or its form, which it indicates that it has been amended in any anyway.”; [4] The Summons does not disclose to the Second Named Defendant the fact that it was joined as a Defendant at a later date, and was not a party to the proceedings from the outset.

10

. [ Court Note: All of points [1]–[4] are variations of a single point, viz. that Betong could not know from the summons received that what it was receiving was an amended summons. That single point is notably weak for the following reason: the purported concurrent summons contains the following clear and unmissable Central Office-affixed stamp in Bold Text on its first page:

“CONCURRENT SUMMONS ISSUED THIS

7 th DAY OF May 2019 PURSUANT

TO ORDER 6, RULES 1 AND 2 (R.S.C.)/ORDERS

DATED THE 1 st DAY OF NOVEMBER 2018

+ 2 nd April 2019”

11

. The solicitors for Betong are doubtless competent solicitors and the first thing that any competent solicitor would do on reading this Central Office-affixed stamp would be to ask to see a copy of the said Orders, which would (and do) reveal the truth of what had occurred. So, yes, Betong could not know from the summons received that what it was receiving was an amended summons. However, the truth of matters is pointed to on the face of summons and readily discernible by competent solicitors (and the solicitors for Betong are doubtless competent).

12

.

13

. [ Court Note: To the extent that the verb ‘conceal’ suggests that something untoward was at play on the part of the plaintiff, it is accepted by Betong that this was and is not the case. Moreover, the court does not see how any element of the case has been concealed: the summons is complete in what is alleged; the fact that there is a co-defendant is obvious from its face; and the Statute of Limitations point that the court will now consider has no substance to it when looked at more closely. Why so? Because the court does not see how a summons served in 2019 which expressly and clearly alleges in its body that an alleged incident occurred in January 2014, and which bears the above-described Central Office-affixed stamp suggesting that some form of summons issued but has been the subject of various orders, can properly be seen as anything other than a document that ‘calls out’ that there may be some form of Statute of Limitations point presenting. In passing, the court notes that its conclusions in this judgment do not prevent the said limitations point from being raised in the future. How that point will fare when and if raised, the court does not know, nor does it entertain any view in this regard. That is a matter for a future judge, when and if raised, and does not fall to be adjudicated upon in the present application.]

14

. [T] he Summons as issued and served on the Second Named Defendant is a nullity, and is not capable of being remedied by amendment. The Plaintiff had not obtained liberty to serve a Concurrent Summons outside of twelve months from the date of issue of the original summons, pursuant to Order 6, rule 1. Therefore, the Central Office did not have authority to issue the Summons, and it is a nullity.”

15

. [ Court Note: The court respectfully does not see how as a matter of logic Betong can keep claiming that the amended summons does not show itself to be the amended summons that it is and, in the next breath, claim that the amended summons ought not to have issued because it is in fact a ‘Concurrent Summons’. The truth of matters is that the purported concurrent summons that was served was an amended summons, a deficient amended summons but not fatally so.

III
The Notice of Motion
16

. By notice of motion of 17 th September 2020, Betong comes to court claiming the following principal reliefs:

1. An Order, pursuant to Order 124, Rule 1 [RSC], striking out the Concurrent Personal Injury Summons herein (the Summons) for nullity and/or irregularity. In particular, the objections which will be insisted upon at the hearing of this motion which render the Concurrent Personal Injury Summons a nullity and/or irregular are as follows:

  • (a) in breach of Order 6, Rule 1, the plaintiff issued the Summons over four years after issue of the Originating Summons to which it corresponds, without obtaining leave of the Court to do so.

  • (b) in breach of the Order of the Master of the High Court dated 1 November 2018 the Plaintiff did not issue and serve an Amended Summons in the form for which liberty was obtained.

  • (c) the Summons is stamped as having issued pursuant to Orders dated 1 November 2018b and 2 April 2019. These Orders do not give liberty to issue and serve a Concurrent Summons over 12 months after the Originating Summons to which it refers, and the Summons is therefore a nullity.

  • (d) the Summons which issued and was served on the Second Named Defendant is manifestly different in substance and in form from that for which the Order of 1 November 2018 was obtained.

  • (e) In breach of Order 28, Rule 9, the Summons does not bear any indication anywhere, either in its title, its content or its form, which indicates that it has been amended in any way….

  • (f) the Summons does not disclose to the Second Named Defendant the fact that it was joined a Defendant at a later date, and was not party to [the] proceedings from the outset”.

IV
The Text of the Rules Mentioned in the Notice of Motion
17

. Order 124(1) of the Rules of the Superior Courts (“RSC”) provides as follows:

Non-compliance with these Rules shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court shall think fit.

18

. Order 6(1) RSC provides as follows:

The plaintiff in any proceedings may, at the time of, or at any time during twelve months after the issuing of the originating summons, issue one or more concurrent...

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