Clancy v North End Garage (Wexford) Ltd

• Jurisdiction: Ireland
• Judgment Date: 21 May 1969
• Date: 21 May 1969
• Docket Number: [1965. No. 1022 P.]
• Court: Supreme Court

Clancy v. North End Garage (Wexford) Ltd.

BERNARD RICHARD CLANCY, an Infant, suing by his father and next friend, Philip Clancy

Plaintiff

and

NORTH END GARAGE (WEXFORD) LIMITEDand JOHN KEANE

Defendants.

[1965. No. 1022 P.]

Supreme Court

Practice - Costs - Recoupment - Plaintiff ordered to pay costs of successful defendant - Whether unsuccessful defendant should recoup plaintiff for such costs - Courts of Justice Act, 1936 (No. 48 of 1936), s. 78. - Civil Liability Act, 1961 (No. 41 of 1961), s. 32.

The plaintiff, a messenger boy in the employment of the second defendant, suffered personal injuries, when cycling to work on his employer's pedal cycle, as the result of a collision between the bicycle and the first defendants' motor car. The plaintiff sued the first defendants for damages in the High Court for the alleged negligence of the driver of the car. The first defendants pleaded contributory negligence on the part of the plaintiff and, when asked by the plaintiff for particulars, stated that at the time of the accident the brakes of the bicycle were defective to the knowledge of the plaintiff. The plaintiff had made statements to that effect shortly after the accident. The first defendants refused to withdraw that allegation although the plaintiff warned them that, if the allegation were not withdrawn, he would sue his employer as a second defendant and would seek to make the first defendants liable for any sum which he might be ordered to pay his employer for costs.

The plaintiff then claimed damages against his employer, who became the second defendant in the action, for permitting the plaintiff to ride a defective bicycle. At the conclusion of the plaintiff's evidence, the second defendant applied unsuccessfully to the trial judge for a direction that there was no evidence that he had been negligent; and that application was opposed by the first defendants. At the conclusion of the evidence for the defendants, the trial judge directed the jury to find that the second defendant had not been negligent and directed the plaintiff to pay the costs of the second defendant. The plaintiff, having recovered judgment against the first defendants, obtained an order from the trial judge directing the first defendants to recoup the plaintiff for the sum of costs that he should pay to the second defendant. The first defendants appealed against the recoupment order on the ground that their plea of contributary negligence and the plaintiff's joinder of the second defendant in the action had been caused by the plaintiff's statements, now shown to have been false, about the brakes of the bicycle.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J. and Walsh J.; FitzGerald J. dissenting), in disallowing the appeal, 1, that the first defendants had wanted to retain a co-defendant in the action, even after the conclusion of the plaintiff's evidence, for the legitimate purpose of obtaining, if possible, a contribution towards the damages.

2. That the plaintiff should not have demanded the withdrawal by the first defendants of the allegations contained in the particulars of their plea of contributory negligence; he should merely have sought an undertaking that the first defendants would not make a charge of negligence against the plaintiff's employer.

Appeal from the High Court.

The facts have been summarised in the head-note and appear in the judgments, post. Section 78 of the Courts of Justice Act, 1936, is in the following terms:—

"78.—Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed."

Section 32 of the Civil Liability Act, 1961, provides as follows:—

"32.—(1) Where an action is brought against two or more persons as concurrent wrongdoers, each defendant shall have the right to present evidence against the other or others.

(2) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and the judgment is satisfied by one of such wrongdoers, another of such wrongdoers may appeal against the judgment notwithstanding that it has been satisfied.

(3) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff obtains judgment and one defendant appeals against the judgment, another defendant may, upon giving such notice as may be required by rules of court, contest the appeal as respondent.

(4) Where an action is brought against two or more persons as concurrent wrongdoers and the plaintiff succeeds against one and fails against another, the unsuccessful defendant may appeal against the judgment in favour of the successful defendant."

Cur. adv. vult.

Ó Dálaigh ó dálaigh C.J.:—

The plaintiff sued two defendants. Having succeeded against the first and failed against the second defendant, he obtained from the trial judge, Mr. Justice McLoughlin, a recoupment order against the first (and unsuccessful) defendant under8s. 78 of the Courts of Justice Act, 1936, in respect of the costs of the second (and successful) defendant which had been awarded against the plaintiff. The first defendants are here to seek a reversal of that order.

The plaintiff, Clancy, was employed as a messenger boy by

Keane, the second defendant, and...