Croke -v- Waterford Crystal, [2004] IESC 97 (2004)

Docket Number:196/04
Party Name:Croke, Waterford Crystal
Judge:Geoghegan J.

THE SUPREME COURT Appeal No. 196/04

Murray C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.








JUDGMENT of Mr. Justice Geoghegan delivered the 26th November 2004


This is an appeal brought by the above named plaintiff/appellant on a single notice of appeal from two orders made by the High Court (Smyth J.) on the 20th April, 2004 in two respective interlocutory motions brought by the said appellant in this action. One of the orders of the High Court was an order refusing leave to the appellant to make certain amendments to his Statement of Claim as against both respondents. The other order of the High Court was a refusal of an application by the appellant to be given liberty to deliver and file a Reply to the respective defences of the first and second-named respondents notwithstanding that the time for doing so had long expired.

I should mention at the outset that the title which I have assigned to this judgment is not identical to the title on the notice of appeal. The notice of appeal instead of naming Walter Croke only as the plaintiff and appellant has inserted the following "Walter Croke & Others, Plaintiffs/Appellants". As this case is one of a large batch of similar cases it seems probable that the legal advisers to the appellant deliberately entitled the notice of appeal in that way so that in some fashion it could be said that the decision of this court bound the other actions. It appears to me, however, that the insertion of the words "& Others" in the notice of appeal was wholly unjustified and wrong having regard to the fact that the two motions the subject matter of this appeal were both brought and headed in one action only, that of Walter Croke. Accordingly, I have thought it appropriate to alter the title of the appeal.

For a proper understanding of the substantive issues in this appeal, it is necessary to outline some further procedural context. This action of the appellant is one of approximately 350 separate actions brought against the respondents by former employees of the first-named respondent who took voluntary redundancy from the first-named respondent for the most part in the early 1990s. It has been suggested on behalf of the respondents that (with a few exceptions) they are essentially what might be described as copycat actions brought after some similar actions by other employees had been settled. Be that as it may, these actions have to be heard and determined at some stage and there was naturally anxiety on all sides that they be suitably managed so that the real issues could be heard and determined in a practical fashion. The appellant and the respondents had different ideas as to what form that management should take. All the parties brought motions for directions which were also heard in the High Court by Smyth J. The respondents' respective motions were directed towards certain preliminary issues being set down for separate trial. Without going into too much detail, the preliminary issues which the respondents sought to be heard were essentially the issues relating to statute bar and issues as to whether they would have to meet at all claims for fraud, deceit, fraudulent breach of trust and fraudulent misrepresentation on the grounds that these claims were allegedly unsustainable, bound to fail, frivolous and vexatious an abuse of the process of the court and that at any rate the pleadings failed to disclose any such causes of action.

Essentially, the High Court acceded to the respondents' motions and the appellant appealed to this court from that order in Appeal No. 312/03. The main ground of the appeal was that the learned High Court judge had erred in directing the trial of a preliminary issue where there was a full dispute on the facts and where no affidavits of discovery had been filed.

This appeal came on for hearing before this court on the 16th February, 2004. At the hearing, the court learned that following on the order of Smyth J. the two motions the subject matter of this appeal had been brought in the High Court and had come on for hearing before Finnegan P. who had taken the view that he ought not to deal with them pending the hearing of the earlier appeal to this court from the directions as to a preliminary issue given by Smyth J. This court, however, took the opposite view in that it decided that it was pointless to consider the correctness or otherwise of the directions given by Smyth J. when it was not finally determined whether the Statement of Claim was going to be substantially amended and whether a Reply was going to be delivered to each of the defences. It will be self-evident as to why this court took that view when I explain the nature of the amendments sought in the Statement of Claim and the contents of the proposed Replies to be delivered.

For reasons which will become obvious, it is appropriate that I should first deal with the motions seeking amendments of the Statement of Claim. Before I analyse what the proposed amendments are and what the effect of them is, it is important that I should examine the existing unamended Plenary Summons and Statement of Claim and establish what are the precise causes of action pleaded at present as against each respondent.

Existing pleadings as against first-named respondent

The general endorsement of claim on the Plenary Summons is confined (apart from Courts Act interest and costs) to a damages claim for eight different causes of action. These are deceit, "fraud and/or fraudulent breach of trust", fraudulent misrepresentation, breach of duty, breach of fiduciary duty, negligent misstatement, breach of statutory duty and breach of contract. Claims for damages for each of these eight causes of action in the same wording and the same order constitute the prayer in the Statement of Claim. Apparently, these claims have been made in most but not, I think, all the actions even though it is not conceded that the relevant facts are the same in each case. No differentiation is made as between the two respondents in either the Plenary Summons or the prayer part of the Statement of Claim. It is trite law that a cause of action merely mentioned by name in the prayer does not and cannot in any sense constitute the pleading of such cause of action. It is, therefore, necessary to look at the main body of the Statement of Claim. It is important that I should do so separately in relation to each respondent.

Starting with the first-named respondent, paragraph 5 explains that at all material times there was a pension scheme which had been instigated by that respondent for the benefit of its employees and, therefore, including the plaintiff who was such an employee. The paragraph goes on to say that the pension scheme was constituted by a declaration of trust made by the second-named respondent, as amended, and a subscriber's agreement form executed by both respondents and that at all material times the second-named respondent was the sole trustee of the pension scheme while the day to day administration was the joint responsibility of both respondents. No cause of action of any kind is pleaded in that particular paragraph.

Paragraph 6 goes on to explain that as part of a process of rationalising its operations and reducing the number of employees, the first-named respondent made available to its employees voluntary redundancy packages.

Paragraph 7 sets out that the appellant made enquiries in relation to the possibility of his ceasing his employment with the first-named respondent and accepting a voluntary redundancy package and that it was allegedly represented to him by a servant or agent of the first-named respondent that the only options available to the appellant were to either accept the voluntary redundancy package which was offered to him or to refuse it and that if he was to refuse the voluntary redundancy package he would be transferred to a different section of the first-named respondent's undertaking where he would earn considerably less than he had been accustomed to earning.

Paragraph 8 pleads that at the time of the making of these representations, the first-named respondent intended and well knew that the appellant would rely thereon and would be induced thereby to accept the voluntary redundancy package which he was being offered and would accept a net refund of his contributions to the pension scheme thereby losing any rights which he had acquired under the said scheme. I would just pause there in order to signpost what seems to be some kind of plea or certainly more than a hint, of deliberate misconduct on the part of the first-named respondent even if the word "fraud" or an equivalent word is not expressly used.

The Statement of Claim goes on to plead that the appellant relied on the representations and received a lump sum payment which included a repayment of the contributions made by him to the pension scheme less a percentage deduction to take account of income tax, but that he had since discovered and that the fact allegedly was that the representations were untrue in that at the material time, the appellant allegedly had acquired valuable pension rights under the scheme and that there were a number of options open to him including the transfer of the value of his interest in the scheme to some other pension scheme approved by the Revenue Commissioners or opting for a deferred pension payable from age sixty-five based under the level of contributions made by him. The appellant then pleads that had these options been communicated to him he would have opted for the deferred pension.

In paragraph 12 it is stated that the first-named respondent "being the party responsible for the instigation and day to day administration of the pension scheme and/or by reason of the implied terms of the plaintiff's contract of employment and/or by reason of its...

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