Coughlan and Others v Stokes and Another
|Miss Justice Laffoy
|20 April 2009
| IEHC 629
|20 April 2009
 IEHC 629
THE HIGH COURT
RSC O.22 r1
RYLANDS & HORROCKS v FLETCHER 1868 3 LRHL 330
RSC O.22 r1(1)
RSC O.22 r4
RSC O.22 r6
RSC O.22 r4(3)
RSC O.22 r6(4)
RSC O.22 r6(2)
RSC O.22 r6(3)
BRENNAN v IARNROD EIREANN & ORS 1992/5/1558
ELY v DARGAN
RSC O.22 r1(7)
KEARNEY v BARRETT & ORS 2004 IEHC 39 2003/29/6814
RSC O.22 r7
PRACTICE & PROCEDURE
Leave to lodge in satisfaction of claim - Late lodgment - Without prejudice negotiations - Reasons for lodgment being made at late stage - Whether leave to make lodgment should be granted following unsuccessful without prejudice negotiations - Rationale of lodgment procedure - Facilitation of settlement of claim in order to reduce costs - Claim for damage to nightclub premises - Whether prejudice to plaintiffs - Brennan v Iarnroid Eireann  IEHC 110, considered - Rules of the Superior Courts 1986 (SI 15/1986), O 22 r 1 - Leave granted (2003/13234P - Laffoy J - 20/4/2009)  IEHC 629 and Ely v Dargan distinguished; Kearney v Barrett
Coughlan v Stokes
Facts Order 22, rule 1(1) of the Rules of the Superior Courts 1986 provides, inter alia, that "In any action for a debt or damages ? the defendant may at any time after he has entered an appearance in the action and before it is set down for trial, or at any later time by leave of the Court, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim ?.." The plaintiff instituted proceedings, claiming damages, inter alia, for financial loss. The defendant, following settlement negotiations, applied to the High Court for leave to make a lodgement of funds in satisfaction of the claim outside of the normal time limit for making such lodgements. The plaintiff resisted the application and urged the Court to order that they pay all of his costs to date if it did so grant leave.
Held by the High Court (Ms. Justice Laffoy) in making an order giving the defendants leave to make a payment into Court in satisfaction of the plaintiffs' claim and in refusing to order that they pay all of the plaintiff's costs to date, 1, that the purpose and underlying rationale of the lodgement procedure was to facilitate settlement of the claim without a full hearing with a view to reducing costs provided the plaintiff was not prejudiced.
2. That to allow the defendants to make a lodgement at a late stage did not entail any prejudice or disadvantage to the plaintiffs.
This is an application, on foot of a notice of motion dated 27th March, 2009, on behalf of all of the defendants in this consolidated action seeking an order pursuant to Order 22, rule 1 of the Rules of the Superior Courts allowing the payment into Court of a sum in satisfaction of the plaintiffs' claim in these proceedings, such payment being for and on behalf of all of the defendants in the consolidated proceedings and for any necessary ancillary orders. It has been made clear by the defendants that, if leave is granted, the lodgment will be without admission of liability, so that liability will remain in issue.
The consolidated proceedings have a long and complicated history. However, it is only necessary to allude to the aspects thereof which are pertinent to the issues which the Court has to determine on this application.
Broadly speaking, the plaintiffs' claims against all of the defendants in the consolidated proceedings are claims for damages for loss which the plaintiffs allege they incurred as a result of damage to their nightclub premises in Cork as a result of negligence, breach of duty and/or breach of the rule inRylands v. Fletcher on the part of the defendants, being owners of premises adjoining the nightclub. Essentially there are four defendant interests in the consolidated action, namely:
(1) the first defendant in the first action, who has been a defendant since the first action was initiated in November 2003;
(2) the second defendant, who has also been a defendant in the first action since November 2003;
(3) the third and fourth defendants in the first action, who were joined as defendants in the first action by order of the Court made in May 2007; and
(4) the defendant in the second action, which commenced in December 2006.
The order consolidating the two actions was made on 10th December, 2007.
The proceedings were case managed in the Chancery List and, being ready for hearing, were listed for hearing in Cork on 10th November, 2008. However, due to the estimated duration of the hearing, the defendants applied to have the proceedings transferred back to Dublin. The proceedings were listed for hearing in Dublin on 19th March, 2009 but, unfortunately, there was no Judge available to hear the case. The proceedings have now been listed for hearing on 5th May, 2009 and the estimated duration of the hearing is two weeks.
One of the reasons advanced on behalf of the defendants for seeking leave to make a lodgment at such a late stage in the process, after the consolidated proceedings were twice listed for hearing, is that is was only as recently as 26th March, 2009 that it was decided by all of the defendants that they would have a single legal representation, one firm of solicitors and one team of senior counsel and junior counsel, acting on behalf of all of the defendants, so that a co-ordinated approach could be adopted to the defence of the proceedings. The other reason advanced was that it only became possible after 29th October, 2008 for the defendants to properly consider making a lodgment. While, in their reply dated 6th November, 2004 to a notice for particulars raised in the first action, the plaintiffs particularised special damages as including a sum of €1,278,938 in respect of loss of profit up to August 2002, those particulars were only updated on 29th October, 2008, following the directions of the Court on 24th October, 2008, to show a claim for loss of profit to the end of August 2007 in the amount of €2,720,678.
The consolidated proceedings do not involve any claim for personal injuries and, accordingly, they are governed by sub-rule (1) of rule (1) of Order 22 which, insofar as is relevant, provides as follows:
"In any action for a debt or damages … the defendant may at any time after he has entered an appearance in the action and before it is set down for trial, or at any later time by leave of the Court, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim ...."
Where money is paid into Court the consequences in terms of where liability for the costs of the proceedings lies is determined in accordance with rule 4 or rule 6 of Order 22.
Rule 4(3), insofar as is relevant for present purposes, provides:
"If the plaintiff accepts money paid into Court in satisfaction of his claim, … he may after four days from payment out, unless the Court otherwise orders, tax...
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