Corrib Oil Company Ltd v Murray

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 29 March 2017
• Neutral Citation: [2017] IECA 102
• Date: 29 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 102 Record No. 2016/77

[2017] IECA 102

THE COURT OF APPEAL

Hogan J.

Hogan J.

Mahon J.

Hanna J.

Neutral Citation Number: [2017] IECA 102

Record No. 2016/77

BETWEEN/

CORRIB OIL COMPANY LIMITED

PLAINTIFF / RESPONDENT

- AND -

MARTIN MURRAY

DEFENDANT / APPELLANT

Default judgment – Substituted service – Notice of intention to proceed – Appellant seeking to have default judgment entered against him set aside – Whether the appellant was appropriately served such that it would be unfair not to have the default judgment set aside

Facts: The plaintiff/respondent, Corrib Oil Co Ltd, on 23rd April 2009, commenced proceedings by way of summary summons against the defendant/appellant, Mr Murray. The claim was, in essence, that the defendant had failed to pay for fuel oil supplied to him by Corrib. Following one unsuccessful attempt to effect service on 30th April 2009, Corrib claimed that service was finally effected by way of personal service upon Mr Murray on 10th September 2009. Apart from an affidavit of debt sworn on 26th April 2010, no further steps were taken in the proceedings until 23rd March 2011 when the plaintiff sought to serve a notice of intention to proceed on the defendant by way of registered post. At all events, the notice of intention to proceed was returned as marked “not called for”. Corrib then applied to the High Court for an order for substituted service and Peart J made an order to this effect on 30th May 2011. The notice of intention to proceed was then served by post by way of substituted service, but Mr Martin denied that he ever received this notice. Judgment was then subsequently obtained in default on 28th September 2011. According to Mr Murray the first he heard of these proceedings was when he received a copy of a summons for the attendance of a debtor in the District Court under the Enforcement of Court Orders Acts 1926-1940 on 10th October 2014. That summons was addressed to him at “Crimblin, Moneygall, Co. Offaly”, but the accompanying letter from Corrib’s solicitors (which enclosed the District Court proceedings) was addressed to him at “Crimblin, Moneygall, Co. Tipperary.” Mr Murray acknowledged that he received this notification which had been enclosed with the cover letter and he contended that he then immediately took steps to have the High Court order set aside. The defendant brought an application, pursuant to the provisions of Ord. 13, r. 11, to have the default judgment entered against him in September 2011 in the sum of €72,615 set aside. In a reserved judgment delivered in the High Court on 4th February 2016 Barrett J refused this application, concluding, based on a review of the affidavits and the surrounding facts, that it was “overwhelmingly likely” that all the pleadings were in fact delivered to the defendant. The defendant appealed to the Court of Appeal against that decision.

Held by Hogan J that he was not satisfied that the defendant was served with the notice of an intention to proceed given that the address given in the order for substituted service contained two errors and he could not say that these errors were simply trifling or harmless. Given that the validity of the subsequent default judgment rested on such proof of service, Hogan J had little alternative but to allow the appeal and to set aside that default judgment.

Hogan J held that he would set aside the judgment on terms. He accordingly required the defendant to file any replying affidavit to the original proceedings within four weeks of the delivery of his judgment.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 29th day of March 2017

1 This is an application brought by the defendant, Mr. Martin Murray, pursuant to the provisions of Ord. 13, r.11, to have a default judgment entered against him in September 2011 in the sum of €72,615 set aside. In a reserved judgment delivered in the High Court on 4th February 2016 Barrett J. refused this application and the defendant now appeals to this Court against that decision. The matter arises in the following way.

2 On 23rd April 2009 the plaintiff, Corrib Oil Co. Ltd. (‘Corrib’), commenced proceedings by way of summary summons against the defendant. The claim was, in essence, that the defendant had failed to pay for fuel oil supplied to him by Corrib. Following one unsuccessful attempt to effect service on 30th April 2009, Corrib claimed that service was finally effected by way of personal service upon Mr. Murray on 10th September 2009, although this is strongly disputed by the defendant. Apart from an affidavit of debt sworn on 26th April 2010, no further steps were taken in the proceedings until 23rd March 2011 when the plaintiff sought to serve a notice of intention to proceed on the defendant by way of registered post.

3 The defendant's address as given in both the summary summons and the notice of intention to proceed is ‘Crimblin, Moneygall, Co. Offaly’. Mr. Murray maintains that his correct address is ‘Crimlin Little, Moneygall, Co. Tipperary.’ Moneygall is, of course, a village which straddles the borders between Offaly and Tipperary.

4 At all events, the notice of intention to proceed was returned as marked ‘not called for’. Corrib then applied to the High Court for an order for substituted service and Peart J. made an order to this effect on 30th May 2011. The notice of intention to proceed was then served by post by way of substituted service, but Mr. Martin denies that he ever received this notice. Judgment was then subsequently obtained in default on 28th September 2011.

5 According to Mr. Murray the first he heard of these proceedings was when he received a copy of a summons for the attendance of a debtor in the District Court under the Enforcement of Court Orders Acts 1926-1940 on 10th October 2014. That summons was addressed to him at ‘Crimblin, Moneygall, Co. Offaly’, but the accompanying letter from Corrib's solicitors (which enclosed the District Court proceedings) was addressed to him at ‘Crimblin, Moneygall, Co. Tipperary.’ Mr. Murray acknowledges that he received this notification which had been enclosed with the cover letter and he contends that he then immediately took steps to have the High Court order set aside. The District Court proceedings stand adjourned pending the outcome of this set aside application.

6 The essential question, therefore, is whether the defendant was appropriately served such that it would be unfair not to have the default judgment set aside. The Court is thus confronted with the question of whether a default judgment should be allowed to stand where the defendant's address is incorrectly described in court documents designed to give notice to a defendant. This is a topic on which there is a somewhat surprising dearth of authority and the Court is, to some degree, at least, proceeding from first principles.

The judgment of the High Court

7 In his judgment Barrett J. concluded, based on a review of the affidavits and the surrounding facts, that it was ‘overwhelmingly likely’ that all the pleadings were in fact delivered to the defendant. He also noted that there was no evidence that:

‘any correspondence to the Offaly address was ever “returned to sender”. If it was not returned, then the court considers that as a matter of probability it was delivered. Such a conclusion chimes with general experience.’

8 Barrett J. also noted that the defendant had (apparently) signed a delivery docket at the address ‘Crimblin, Moneygall, Co. Offaly’. He added that:

‘when a defendant signs delivery dockets and writes on them an address that he later avers does not exist, that, with respect, colours the credibility of his later averment that someone else is telling an untruth.’

9 These comments prompt two observations. First, there was no evidence to the effect that the defendant had ever written his address on the docket. In any event, perhaps too much should not be read from the fact that someone signs a delivery docket which is incorrectly addressed. Quite often individuals scarcely glance at these addresses when they sign these dockets and, even if they do notice a mistake, they are not always bothered to insist upon a correction. That, however, is a somewhat different question as to whether an incorrectly addressed letter is likely to be delivered by the postal system.

10 Second, it is important to stress that the defendant emphatically denied that he had ever seen the Offaly address on any delivery note that he had signed and that he had never ‘at any time received a delivery from the plaintiff company to my home address.’ Barrett J. nevertheless purported to resolve the conflict of fact as between the plaintiff's delivery driver and the defendant as to whether the latter had in fact been served in September 2009 by reference to the affidavits which the respective deponents had filed. In the absence of any cross-examination of the respective witness, I am bound to think that the trial judge fell into error in this respect. As Hardiman J. observed in Boliden Tara Mines v. Cosgrove [2010] IESC 62:

‘It cannot be too strongly emphasised that, where evidence is presented on affidavit, a party who wishes to contradict such evidence must serve a notice of intention to cross-examine. In a case tried on affidavit, it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to. In a case where there is no contradictory evidence an attack on the evidence which is before the Court must include cross-examination unless the contradicting party is prepared to rely wholly...