O Connell v An Bord Pleanala, [2007] IEHC 79 (2007)

Docket Number:2003 508JR
Judge:Peart J.
 
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THE HIGH COURT Record Number: 2003 No. 508 JR Between:Collette O'ConnellApplicantAndAn Bord PleanalaRespondentAndDungarvan Town Council, Lavine Limited, Shane Houlihan, Proinnsias Breathnach and An TaisceNotice PartiesJudgment of Mr Justice Michael Peart delivered on the 19th day of February 2007:The second named Notice Party, Lavine Limited, seeks an order appointing a Receiver by way of Equitable Execution over so much of any monies which the applicant might in the future recover by way of damages in an action which she has commenced in the High Court arising out of an assault upon her in the past, as may be sufficient to satisfy an unsatisfied judgment for costs obtained by it against the unsuccessful applicant in the above proceedings.The second named Notice Party obtained that order for costs, and interest thereon against the applicant in these proceedings on the 31st July 2003. These costs have been taxed in the sum of 58,315.47, and it has been calculated that interest on that sum up to the 1st October 2006 amounts to 15,315.47, making a total sum for costs and interest to the said date of 73,477.49. This sum remains unsatisfied by the unsuccessful applicant in these proceedings.This Court made an order on the 11th December 2006 on a conditional basis appointing a Receiver by way of Equitable Execution, and gave liberty to serve Notice of Motion upon the applicant to make that order absolute.The applicant has appeared on that motion and has filed a replying affidavit in which she refers to the proceedings commenced by her in which she is claiming damages for assault arising from an incident in May 1999. On that occasion, according to her affidavit, she was "viciously assaulted" by the defendant in those proceedings. The Court has been informed by her Counsel that the pleadings have been closed but that the case has not yet been set down for trial.She goes on to state that following the making of the costs order in the present case, she instructed her solicitors to try and negotiate an agreement with the second named Notice Party in order to enable her to proceed with her action for damages, but that no such agreement has been possible. She goes on to state that she has instructed her present solicitor that she was prepared to give an undertaking to the second named Notice Party that upon the successful conclusion/settlement of her action against her alleged assailant her said solicitors would pay to it 75% of whatever damages were awarded or negotiated, in partial or complete discharge of the said costs order. This offer has not been accepted.Finally she avers that the effect of any order appointing a Receiver by way of Equitable Execution may well be to exempt the defendant to her proceedings from any liability for the serious injuries which he caused to her and to "thwart justice being done", and that this Court should not allow its procedures to be used in order to facilitate that. Her Counsel has clarified what that might mean, and has stated that if the order is made as sought herein, she will be obliged to put her solicitor in funds in advance of that case being heard so that his fees and those of Counsel and medical personnel can be covered, since any damages and costs which she may recover will be caught by the terms of the order appointing a Receiver over same. However, given that the Court has a discretion as to the terms in which any such order may be made, perhaps so as to exclude from its ambit such costs as might be recovered on a party and party basis, I take the submission to mean also that the sum for any damages awarded would not be available to cover any shortfall between those party and party costs and any solicitor/client costs payable.Submissions:This application is brought in the first place under the provisions of O.45, r.9 RSC which provides as follows;"(9) In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that such appointment should be made shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver, and to the probable costs of his appointment, and may, if it shall so think fit, direct any inquiries on these or other matters, before making the appointment. The order shall be made upon such terms as the Court may direct."Micheál O'Connor BL has submitted that this Court has no power to make the order sought over a sum of money which is not yet ascertained as to amount and which may become available in the future. He submits that this application is therefore premature since the action which might yield an amount of damages is not yet heard, and that in the future, should the applicant be successful in those proceedings, the second named Notice Party will have the normal remedies available to it so as to execute against her in respect of any such award.In support of the submission that this Court cannot appoint a Receiver over any future amount of money to which the applicant may be entitled, Mr O'Connor has referred to O'Floinn: Practice and Procedure in the Superior Courts at page 356, where in a footnote to O.45, r.9 RSC the learned author notes:"A receiver will not generally be appointed over payments to be made in futuro but only over payments which have accrued but have yet to be paid over to a defendant."The authorities referenced for that statement are Re: Johnson [1898] 2 IR 551 and Ahern v. O'Brien [1991] 1 IR 421.In the latter case - a case in fact relied upon by the second named Notice Party - a conditional order was made over the defendant's interest in certain ground rents payable into the future to the defendant and another co-owner on foot of certain leases. That order was made absolute in due course, but the defendant did not appear on the application to make absolute and therefore no contrary arguments were put forward. But O'Hanlon J. when ruling on the ex parte application for the conditional order, stated at p. 422:"Generally speaking, a receiver by way of equitable execution will not be appointed over payments to be made in the future, but only over payments which have already accrued due and which have not as yet been paid over to a defendant. See the decision in Cleary v. O'Donnell...

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