DD Growth Premium Master Fund ((in Liquidation)) v PNC Global Investment Servicing (Europe) Ltd

JurisdictionIreland
JudgeMr. Justice Brian J. McGovern
Judgment Date20 December 2016
Neutral Citation[2016] IEHC 742
Docket Number[2014 No. 5675 P.]
CourtHigh Court
Date20 December 2016

[2016] IEHC 742

THE HIGH COURT

McGovern J.

[2014 No. 5675 P.]

BETWEEN
D.D. GROWTH PREMIUM MASTER FUND (IN LIQUIDATION)
PLAINTIFF
AND
P.N.C. GLOBAL INVESTMENT SERVICING (EUROPE) LIMITED NOW KNOWN AS B.N.Y. MELLON INVESTMENT SERVICING (INTERNATIONAL) LIMITED
DEFENDANT

Practice and Procedures – O. 18, r. 1 of the Rules of the Superior Courts – Leave to amend the defence – Lack of material change – Amplification of earlier defence

Facts: The defendant sought leave to amend its defence. The plaintiff submitted that the proposed amendment radically altered the nature of the defence and introduced new matters. The defendant argued that the said amendment of defence was necessary to resolve the issues between the parties as by the proposed amendment, the defendant wished to raise the plea of statute of limitations and furnish the list of the persons against whom the plaintiff should have made the claim.

Mr. Justice Brian J. McGovern granted leave to the defendant to amend its defence. The Court held that the amendments were necessary to ensure that all of the real controversies between the parties could be determined at the trial of the proceedings. The Court observed that there had been no delay in bringing the present application. The Court stated that no new material facts were introduced by the proposed amendment and it was merely an amplification of the earlier pleaded defence.

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 20th day of December, 2016.
1

By notice of motion dated 21st September, 2016, the defendant seeks two orders. The first order has been made by this Court on 19th December, 2016; namely, an order substituting B.N.Y. Mellon Fund Services (Ireland) D.A.C. as defendant to the proceedings as all the assets and liabilities of the original defendant had been transferred to it by operation of law.

2

The second order sought in the notice of motion is an order pursuant to O. 28, r. 1 of the Rules of the Superior Courts and/or O. 63A, r. 5 and/or 6 of the Rules of the Superior Courts and/or under the inherent jurisdiction of the court granting the defendant leave to amend its defence. The amendments are to be found at paras. 35 and 36 of the draft amended defence which is exhibit ‘KS2’ in the affidavit of Mr. Keith Smith sworn on 21st day of September, 2016. A very minor amendment to para. 35 was not opposed and I will grant that amendment. The main amendment is to be found in para. 36 and the particulars attached to same. The plaintiff opposes the amendment sought.

3

In Croke v. Waterford Crystal [2005] 2 I.R. 383 , Geoghegan J. stated at 393:-

‘…the primary consideration of the court must be whether the amendments are necessary for the purpose of determining the real questions of controversy in the litigation.’

4

Where an amendment can be made without prejudice to the other party and will enable the real issues between the parties to be tried, the court's discretion should be exercised in favour of making the amendment sought. In Moorehouse v. Governor of Wheatfield Prison [2015] IESC 21, MacMenamin J. stated at para. 40:-

‘As Geoghegan J., speaking for this Court, in Croke v. Waterford Crystal Limited & Irish Pensions Trust Limited [2005] 2 I.R. 383 pointed out, the Rules of the Superior Courts, insofar as they concern amendments are intended to be “liberal”, and intended for the purpose of ensuring that the real matters in controversy between the parties are determined by the courts.’

5

The plaintiff argues that the proposed amendments radically alter the nature of the defence and introduce new matters; accordingly, it is necessary for the defendant to give to the court good reason for not having originally made that plea and for seeking the amendment at this stage. They rely on the observations of Flood J. in Palamos Properties Limited v. Brooks [1996] 3 I.R. 597 at 605 where he said:-

‘…there must be such evidence from which an inference can reasonably be...

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2 cases
  • Greaney Solar Products Ltd v The Revenue Commissioners and Others
    • Ireland
    • High Court
    • 1 February 2024
    ...Masterfund (In Liquidation) v PNC Global Investment Service (Euro) Ltd now known as BMY Mellon Investments Service (International) Ltd [2016] IEHC 742 per McGovern J. at 10 Geoghegan J. observed that some of the previous High Court decisions cited before the court appeared to be derived dir......
  • P.C. [A Minor] v Doran
    • Ireland
    • High Court
    • 13 June 2022
    ...Masterfund (In Liquidation) v. PNC Global Investment Service (Euro) Ltd now known as BMY Mellon Investments Service (International) Ltd [2016] IEHC 742 wherein McGovern J., in allowing the amendment sought, found that the amended defence sought to raise legal consequences flowing from matte......

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