O'Connor v Lackabeg Ltd t/a The Arc Bar & Restaurant and Others, Shannon v Lackabeg Ltd t/a The Arc Bar & Restaurant
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 29 April 2024 |
| Neutral Citation | [2024] IEHC 244 |
| Court | High Court |
| Docket Number | 2023 24 CA |
[2024] IEHC 244
2023 24 CA
2023 25 CA
THE HIGH COURT
CIRCUIT APPEAL
Ruadhán Ó Ciaráin for the plaintiffs instructed by Eugene Smartt Solicitors
Sarah Kearney for the defendant instructed by Brannigan Cosgrove Finnegan LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 29 April 2024
This decision is delivered in respect of two related appeals from the Circuit Court (His Honour Judge O'Connor). The appeals raise a net issue of statutory interpretation in relation to the Circuit Court Rules. The issue is whether—in the absence of an express provision to like effect in the Circuit Court Rules—it is permissible for a judgment creditor to rely on the provisions of the Rules of the Superior Courts in relation to examination and discovery in aid of execution of a monetary judgment. Order 67, rule 16 of the Circuit Court Rules provides, in essence, that the practice and procedure in the High Court may be followed by the Circuit Court where same is not governed by the CCR.
These appeals arise in the context of two related defamation actions. The defamation actions were taken against the defendant company by the plaintiffs. In each case, judgment was entered against the defendant company by the Circuit Court on an undefended basis on 8 March 2018. Each plaintiff was awarded damages in the amount of €10,000, together with legal costs on the Circuit Court scale to be taxed in default of agreement. These costs have since been “ taxed”, i.e. measured, by the County Registrar in the amounts of €24,793.37 and €16,011.99, respectively.
The plaintiffs applied, by motion on notice, to the Circuit Court for an order that the directors of the defendant company attend for oral examination before the Circuit Court and make discovery in execution of the two judgments. The directors are Frank Towey and Kieran Towey. The directors had not been parties to the underlying defamation actions but were named as respondents to the motion. The stance adopted by the directors before the Circuit Court—and maintained before the High Court on this appeal—is that the Circuit Court Rules preclude examination and discovery in aid of execution of a monetary judgment. The directors of the defendant company contend that, in circumstances where the Circuit Court Rules make detailed provision for execution, there is no lacuna in the law which requires to be filled by reliance on the provisions of the Rules of the Superior Courts.
The Circuit Court rejected this jurisdictional objection. The Circuit Court went on, however, to refuse the applications on the grounds of delay. In each case, the plaintiff filed an appeal to the High Court against the Circuit Court's order.
The appeals came on for hearing before me. I granted special leave to the plaintiffs, pursuant to Section 37 of the Courts of Justice Act 1936, to adduce further affidavit evidence setting out the procedural history in greater detail. This was done in circumstances where the Circuit Court's rationale for refusing the relief had included an own-volition finding that there had been delay on the part of the plaintiffs, by reference to the lapse of time between (i) the date of the incident giving rise to the defamation actions (18 September 2010), and (ii) the date upon which judgment was obtained (8 March 2018).
The question of delay had not been raised by the company's directors, and the plaintiffs had not, accordingly, needed to address same in their motion papers. The purpose of permitting the plaintiffs to rely on further affidavit evidence was to ensure, first, that the parties had an opportunity to address the question of delay (which had been raised by the Circuit Court for the first time in its decision on the motion), and, secondly, that the High Court would be fully apprised of the events between the two dates (if and insofar as relevant). The company's directors were permitted an opportunity to file a replying affidavit but chose not to do so.
Both sides exchanged, on a staggered basis, written legal submissions addressing the proper interpretation of the relevant rules of court. The submissions are dated 30 January 2024 and 19 February 2024, respectively. I am grateful to both counsel for these very helpful submissions.
Order 36, rule 7 of the Circuit Court Rules (“ CCR”) provides as follows:
“If any difficulty arises in or about the execution or enforcement of any judgment or order other than a judgment or order for the recovery or payment of money, any party interested may apply to the Court, and the Judge may make such order thereon for the attendance and examination of any party or otherwise as he may think just.”
There is no express provision made under the CCR for examination or discovery in aid of execution in the case of a monetary judgment. There is, however, express provision made to this effect under the Rules of the Superior Courts (“ RSC”). Order 42, rule 36 RSC provides as follows:
“When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the Court for an order that the debtor liable under such judgment or order, or in the case of a corporation that any officer thereof, or that any other person be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a judge or an officer of the Court as the Court shall appoint; and the Court may make an order for the attendance and the examination of such debtor, or of any other person, and for the production of any books or documents.”
The High Court has jurisdiction to order a debtor to disclose any matters that properly come within the scope of a cross-examination under Order 42, rule 36 in advance of the hearing so as to enable the hearing to be focused on issues of real inquiry ( Moorview Developments Ltd v. First Active plc [2011] IEHC 117, [2011] 3 I.R. 615).
Order 67, rule 16 of the Circuit Court Rules provides as follows:
“Where there is no Rule provided by these Rules to govern practice or procedure, the practice and procedure in the High Court may be followed.”
The principal issue for determination in the present proceedings is whether the foregoing rule permits a judgment creditor, with the benefit of a monetary judgment from the Circuit Court, to rely on the provisions of the...
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