Croke v Waterford Crystal Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 07 July 2005
• Neutral Citation: [2004] IESC 97
• Court: Supreme Court
• Docket Number: 312/03,[S.C. No.
• Date: 07 July 2005

WALTER CROKE

V.

WATERFORD CRYSTAL LIMITED AND IRISH PENSIONS TRUST

Geoghegan J.

Fennelly J.

Kearns J.

312/03

THE SUPREME COURT

Abstract:

Practice and procedure - Motion - Case management

The appeal arose from four separate motions which were brought before the High Court which were largely resolved by counsel's submission.

Held by the Supreme Court in an ex temporary judgment in accepting a proposal submitted by counsel to resolve the issues but added that it was desired that the case required to be case managed.

Reporter: BDD

1 JUDGMENT of the Court (ex tempore) delivered the 7th day of July 2005 by GEOGHEGAN J.

2 This appeal arises essentially from four separate motions that were brought to the High Court and came for hearing before Mr. Justice Smyth. One was a motion brought by the plaintiff for directions and that included in particular a direction seeking a release from the obligation not to use an affidavit for discovery of pleadings for the purpose of these proceedings. The second was a motion brought by the plaintiff for discovery of documents. The third was a motion by the first-named defendant for preliminary issues to be heard and the fourth was another motion brought by the second-named defendant for preliminary issues to be heard.

3 The way Mr. Justice Smyth dealt with these motions was to accede to the applications of the first and second-named defendants for

4 preliminary issues. He ordered that the preliminary issues be tried in relation to whether the actions were statute barred and also as to whether there was a sustainable cause of action. He also included in the order a direction that the plaintiffs motion for discovery was to be adjourned to the hearing of the preliminary hearing of the issue.

5 The plaintiff appealed against that order and that is what comes before this court now. The next complication that arose was that after the High Court order had been made, an application was made to the High Court by the plaintiff to have the case statement of claim in the Croke case amended in a number of respects against both defendants and to be permitted to deliver late Replies. For all practical purposes it was really so as to allege fraud in various forms against both defendants and to plead fraudulent concealment in the Replies in response to pleas of statute bar. Both the application to amend the statement of claim and the application for delivery of late Replies were refused in the High Court and an appeal was brought to this court. This court varied the order of the High Court in that it permitted the amendments in the statement of claim as against the first-named defendants but refused the amendments as against the second-named defendant and it also permitted the late Replies to be delivered. In the event, these Replies which were delivered with the permission of this court and obliquely, by reference to citation of

6 sections raised a concealed fraud plea in relation to the plea of statute bar. It appears there is no real disagreement on that but having regard to the amendments that have been made now to the statement of claim against the first-named defendant and having regard to the contents of the Reply, a trial of the separate issue would be totally inappropriate. But the court also considers (I do not think there is any dispute about this) that having regard to the contents of the Reply though not of the statement of claim in the action as against the second-named defendant, the trial of a separate issue would be equally inappropriate. Apart from anything else, it would really amount to the hearing of the merits of the claim and at any rate it is inappropriate because of course those pleas in the Reply raise factual issues. There has to be a qualification to that part of the order because Mr. Ian Finlay, S.C. appearing for the second-named defendant, has flagged an intention to apply to the High Court to have struck out those parts of his client's Reply which would render a trial of the separate issue inappropriate. Having regard to these circumstances, the court will, therefore, set aside the order of the High Court. However, in case it should emerge that on foot of the ultimate pleadings in one or more of the other actions that trial of a separate issue would not necessarily be inappropriate for the reasons that were considered inappropriate here, there will be liberty given to apply to each of the defendants to apply for such separate issue to be heard. In the case of the second-named

7 defendant that liberty will equally extend to the Croke case in the event of the projected application to the High Court being successful.

8 In the context of the discussion this morning in relation to what kind of order would be practical and appropriate in relation to this appeal, the court gave time to the parties at some stage to see whether any kind of agreement could be reached and very helpfully, Mr. Cregan, S.C. for the plaintiff, came back and indicated certain practical measures for the purpose of expediting the case that he was prepared to carry out. The court is happy to include the undertakings which he is giving and that they would be noted in the court. What Mr. Cregan's undertaking is that a letter will be written on behalf of the plaintiff on or before the 1st October next and an undertaking given in the terms of a typed up agreement and which will be annexed to the order. It relates to the writing of a letter indicating what is intended in relation to the pleadings in the other cases as to whether an amendment to the statement of claim is being sought and so on and what form that would take and also giving details in relation to the knowledge and the means of knowledge for the purpose of the contents of the Reply. The terms of that undertaking, as I say, are included in the typed undertaking agreement which can be annexed to this order.

9 The final matter which the court wants to say is this that nothing which has been indicated in this order is in any way to be taken as prejudicing appropriate case management in the High Court of these cases, far from it. The court considers it highly desirable that they be case managed and hopefully, that can be done not just in an appropriate but perhaps including innovative ways also, provided of course that in all the circumstances whatever the High Court would order in this connection would be fair to all the parties. There obviously has to be a practical and fair way of disposing of all these actions. That rider is being added not as an order as such just to clearly show the mind of the court that the rest of the order is not in any way diminishing the rights of the High Court to engage in appropriate case management.

Croke v Waterford Crystal Ltd & Irish Pensions Trust Ltd

BETWEEN/

WALTER CROKE

Plaintiff/Appellant

and

WATERFORD CRYSTAL LIMITED AND IRISH PENSIONS TRUSTLIMITED

Respondents/Respondents

[2004] IESC 97

Murray C.J.

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Appeal No. 196/04

THE SUPREME COURT

Abstract:

Practice and procedure - Preliminary issue - Motion - Application to amend statement of claim and leave to deliver replies to defences - Primary consideration of court in considering applications under Order 28 rule 1 of the Rules of the Superior Court 1986

The plaintiff was employed by the first defendant of whose pension scheme, the second defendant, was sole trustee. Following delivery of defences the plaintiff brought a motion for directions on preliminary issues in the High Court and subsequently sought leave to amend his statement of claim against both defendants and liability to deliver replies to the defences both of which pleaded the Statute of Limitations. The High Court refused such leave and the plaintiff appealed.

Held by the Supreme Court (Murray CJ; Denham; McGuinness J; Geoghegan and Fennelly JJ) in allowing the appeal against the first defendant and dismissing it against the second defendant on the motion to amend the statement of claim but allowing the appeal seeking liberty to deliver replies that the primary consideration of the court in determining whether amendments were necessary was to determine the real question in issue and that the procedural conduct of the parties was a secondary and less important consideration. The court further held that where a plea is raised on the statement of limitations any answer to such a plea must be pleaded by way of reply.

Reporter: F.McE.

STATUTE OF LIMITATIONS 1957

RSC O.28 r1

O'LEARY v MIN FOR TRANSPORT & ORS 2001 1 ILRM 132 2000/14/5482

SHEPPERTON INVESTMENT CO LTD v CONCAST (1975) LTD & ORS UNREP BARRON 21.12.1992 1993/5/1393

MCFADDEN v DUNDALK & DOWDALLSHILL COURSING CLUB LTD & ORS UNREP SUPREME 22.4.1994 1998/25/9762

PALAMOS PROPERTIES LTD & O'NEILL v BROOKS & ORS 1996 3 IR 597 1996/7/2160

SMITH v CROPPER (T/A HS CROPPER & CO) 1884 26 CH D 700

BOWER v MAXWELL UNREP EWCA CIV 8.5.1989 (UK)

BELL v PEDERSON & SANDOZ RINGASKIDDY LTD 1995 3 IR 511 1996 1 ILRM 290 1995/15/3863

DPP v CORBETT 1992 ILRM 674 1992/6/1756

KROPS v IRISH FORESTRY BOARD LTD & RYAN 1995 2 IR 113 1995 2 ILRM 290 1995/9/2649

1 Mr. Justice Geoghegandelivered the 26th November 2004

INTRODUCTION

2 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 20 ^th 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 makecertainamendments 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...