Danske Bank v Meagher

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Moriarty
Judgment Date10 February 2015
Neutral Citation[2015] IEHC 130
Date10 February 2015
Docket NumberRecord No. 2013 176 S Record No. 2014 356 SP

[2015] IEHC 130

THE HIGH COURT

(Commercial List 2013 No. 23 COM)

Moriarty J.

Record No. 2013 176 S

Record No. 2014 356 SP

BETWEEN:
DANSKE BANK A/S (Trading as Danske Bank)
Plaintiff
-AND-
JOHN MEAGHER
Defendant
BETWEEN:
HEALTH SERVICE EXECUTIVE
Applicant
-AND-

JOHN MEAGHER and DUBLIN CITY COUNCIL and DANSKE BANK A/S (TRADING AS DANSKE BANK)
Respondents

Banking & Finance – Summary judgment – Ambiguity in order – Amendment of order – Whether lesser judgment should prevail over higher judgment

Facts: The present proceedings concerned an order of the Court whereby the plaintiff was awarded summary judgment against the defendant and the plaintiff was also held entitled to receive all the sums or judgment that was obtained by the defendant in other proceedings instituted by the defendant against the applicant. The plaintiff contended that the order was clear and devoid of ambiguity inasmuch as the plaintiff was entitled to the entire money collected on behalf of the defendant.

Mr. Justice Moriarty held that the plaintiff was entitled to receive all the sums that the defendant might have obtained from the applicant which were due or from the execution of a judgment made against the defendant. The Court held that power to vary or modify an order is an exclusive remedy and it had to be exercised where there was an omission of a relevant fact by chance or where the order as it was drawn up gave an entirely different meaning to what was originally intended. The Court held that the plaintiff would be the ultimate beneficiary of the proceeds arising out of the defendant's litigation against the applicant and the Dublin City Council, though little in amount. The Court held that attachment of a lesser judgment to satisfy the higher would not be an improper rationale.

Mr. Justice Moriarty
A. Overview
1

In seeking to convey even the most rudimentary overview of this protracted and convoluted matter, it should be stated at the outset that the two main building blocks by way of prior litigation that have given rise to it are, firstly a summary and unsatisfied Commercial Court Judgment of Kelly J. of the 25th February, 2013 and costs in favour of Danske Bank, (‘the Plaintiff') against Mr. John Meagher (‘the Defendant’) in the sum of €6,984,826.48. Secondly, a Judgment of Hogan J. in favour of the said Mr. Meagher of the 14th March, 2014 against the Health Service Executive, following a fragmented nine day hearing between March and July, 2013 in the sum of €106,640.36, inclusive of substantial interest, and with a discounted proportion of total costs incurred by Mr. Meagher only being allowed. It is as to who should benefit from that €106,640.36 award that Danske Bank, with its entirely unsatisfied default judgment, and Mr. Meagher, or more particularly his solicitors, Messrs. C.C.K. Law Firm, to whom he has assigned any entitlements he may establish, have staked their competing claims.

2

The final substantive involvement of Kelly J. in the matter was to make an Order of the 13th May 2013, in the context of attachment of the lesser Judgment to answer the greater, following a hearing at which neither Mr. Meagher nor his legal representatives were in attendance, but the full meaning and effect of that Order is in dispute, with the representatives of both Danske Bank and Mr. Meagher contending for opposing constructions favourable to each, and Danske Bank alternatively contending for an amendment in their favour, if necessary to resolve any ambiguity. Even though the sum now in issue is only a tiny proportion of the Bank's Judgment, the matter has been contested with an intensity and occasional prolixity that hovers towardsJarndyce proportions. Indeed I am the seventh High Court judge to address the matters in issue, in addition to which two Supreme Court hearings and determinations have already been made.

B. Litigation history

A brief precis of the notable profusion of proceedings which have been borne upon the present issues in contention, along with the principal outcomes which transpired, is apposite.

B. Litigation history
3

On the 9th March 2005, Mr. Meagher instituted the Summary Summons proceedings which ultimately culminated in his 2014 Judgment from Hogan J. for €106,640.36 against the Health Service Executive, primarily relating to services rendered in relation to accommodation of asylum seekers in Dublin.

4

On the 18th January 2013, the Summary Summons was issued in proceedings taken by Danske Bank against Mr. Meagher. The present application derives from the High Court Order of Kelly J. of the 25th of February 2013 in which a sum of€6,984,826.48 was awarded in summary judgment to the Plaintiffs for a breach of contract entered into between the parties. That Order in full may be stated at this juncture:

‘IT IS ORDERED pursuant to Order 45 Rule 1 of the Rules of the Superior Courts that the said sum of £70,000.00 be and the same is hereby attached without further Motion to answer an Order made in the High Court on 25 February 2013 ordering payment by the Defendant to the Plaintiff in the sum of £6,984,826.48.

And IT IS ORDERED that the Garnishee, Dublin City Council, do appear before this Court on Monday the 17th day of June 2013 at 2 o'clock in the afternoon to show cause why it should not pay to the Plaintiff the said sum of £70,000.00 due to the Defendant - this Order nisi to be served on the said Garnishee and on the Defendant.

And in so far as there are other monies which may become due arising out of the proceedings which are alluded to in the Notice of Motion,

IT IS ORDERED pursuant to Order 45 Rule 9 of the Rules of the Superior Courts that Ian Bell Solicitor of MacCarthy Johnston Solicitors be appointed Receiver by way of equitable execution (without salary or security) entitled to receive, on behalf of the Plaintiff, all sums that may be due the Defendant from Dublin City Council whether comprised of existing debts or any Judgment that the Defendant may obtain in proceedings entitled John Meagher trading as Sancta Maria Hostel v Dublin City Council and Northern Area Health Board, High Court Record Number 2005 No.336S.’

The Plaintiffs Motion seeks to amend the Order to the following formula:

‘IT IS ORDERED pursuant to Order 45 Rule 9 of the Rules of the Superior Courts that Ian Bell Solicitor of MacCarthy Johnston Solicitors be appointed receiver by way of equitable execution (without salary or security) entitled to receive, on behalf of the Plaintiff, all sums that maybe due to the Defendant from Dublin City Council whether comprised of existing debts or any judgment that the Defendant may obtain, or has obtained, in the proceedings entitled John Meagher trading as Santa Maria Hostel v Dublin City Council and Northern Area Health Board, High Court Record 2005 No. 336S.’

5

On the 12th March 2013 the hearing began before Hogan J. in the Meagher proceedings. On the 13th of May 2013 Kelly J. made the attachment Order which is at the heart of the present proceedings, including the appointment of Mr. Ian Bell, Solicitor to Danske Bank, as receiver by way of equitable execution as aforesaid. In proceedings entitledMartin Ferris v John Meagher & Echoforde Ltd dated the 31st of July 2013, Birmingham J. awarded a prohibitory injunetion to the plaintiffs which prevented the defendant from interfering with the process of repossessing the plaintiff's properties.

6

On the 17th July 2013 a notice of motion seeking relief pursuant to section 3 of the Legal Practitioners (Ireland) Act, 1876 brought by solicitors representing Mr. Meagher was adjourned with a return date of22nd July 2013. On the 25th July 2013, the final day of hearing in the Meagher proceedings was heard before Hogan J. Then on the 4th of October 2013, Peart J. refused the defendant's application to set aside the judgment which was awarded on the 25th of February 2013. An application was then made by counsel for Mr. Meagher for a stay pending an appeal to be heard by the Supreme Court. This application was refused by the Supreme Court (Fennelly J.), with the substantive appeal against the Judgment of Peart J. deferred to full hearing. On the 1st November 2013, the defendant was awarded the sum of €106,640.36 in damages by Hogan J. in an action for a breach of covenant brought...

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