Desmond Monahan v Kevin Byrne and Another

JurisdictionIreland
JudgeMr Justice John Hedigan
Judgment Date27 April 2015
Neutral Citation[2015] IEHC 263
CourtHigh Court
Date27 April 2015

[2015] IEHC 263

THE HIGH COURT

[No. 5606 P/2012]
Monahan v Byrne & Coyle (t/a Brannigan & Matthews Solicitors)
No Redaction Needed

BETWEEN

DESMOND MONAHAN
PLAINTIFF

AND

KEVIN BYRNE AND SHANE COYLE (PRACTISING UNDER THE STYLE AND TITLE OF BRANNIGAN AND MATTHEWS SOLICITORS)
DEFENDENTS

Contract – Breach of contract – Damages – Failure to serve the summons – Renewal of the plenary summons – O.8 r.2 of the Rules of the Superior Courts.

Facts: The defendant sought an order pursuant to O.8 r.2 of the Rules of the Superior Courts quashing the decision of the Master of the High Court, renewing the plenary summons. The plaintiff had alleged that the defendant's wrongful act caused the plaintiff to be jointly and severally liable for an amount. The plaintiff had failed to serve the summons lawfully. The Master of the High Court by an order renewed the plenary summons resulting in bypassing the statute barring the plaintiff's claim. The defendant now challenged the order of the Master of the High Court.

Mr Justice John Hedigan held that the application for an order pursuant to O.8 r.2 of the Rules of the Superior Courts would be allowed. The Court held that the plaintiff failed to justify the failure to serve the summons lawfully. The Court further held that the balance of justice would not arise as the Court was not afforded with good reasons for renewal of the summons. The Court held that the order of the Master of the High Court renewing the plenary summons would be set aside.

1

JUDGMENT of Mr Justice John Hedigan delivered the 27th day of April 2015

2

1. The defendants seek an order pursuant to Order 8 rule 2 of the Rules of the Superior Courts setting aside the order of the Master of the High Court dated the 4 th of June 2013 renewing the plenary summons herein dated the 7 th of June 2012. That order was granted on the basis of a grounding affidavit of Sean Sheehan sworn on the 4 th of June 2013.

3

2. The plaintiff claims damages for alleged breach of contract, misrepresentation, breach of fiduciary duty, negligence and breach of duty on the part of the defendant and each of them their respective servants or agents.

4

3. These proceedings relate to a contract for the purchase of land between the plaintiff of the one part and Ray White of the other dated the 14 th of June 2006. The case relates to the alleged wrongful release of funds to Mr White on the 30 th of June 2006 and further on the 16 th of August 2006.

5

It is alleged that through the wrongdoing of the defendants the plaintiff was made liable jointly and severally with Mr White to AIB in the amount of €2,338,097.80. On the 11 th of April 2012 the bank called in the debt. The wrongful acts alleged against the defendants by the plaintiff occurred on dates between the 14 th of June 2006 and the 16 th of August 2006.

6

The chronology of events have been helpfully set out in the submissions as follows;

1.

14 June 2006 16 August 2006

The events the subject matter of proceedings 2 nd date of release of monies to White

2.

1 st April 2010

Request from Aaron Kelly & Co for conveyancing documents

3.

9 April 2010

The First Named Defendant's response

4.

10 May 2011

Request from Aaron Kelly & Co for the original file to pursue Ray White

5.

10 June 2011

The original file furnished by The First Named Defendant to Aaron Kelly & Co

6.

11 April 2012

Letter from AIB calling in the loan advanced to the Plaintiff on a joint and several basis

7.

7 June 2012

The plenary summons was issued on the 7 th June 2012, and was scheduled to expire 12 months later on the 6 th June 2013.

8.

13 th June 2012 to 15 August 2012

Various points at which the Plaintiffs alleged cause of action would have become statute barred but for the issuance of the summons.

9.

December 2012

The Plaintiff instructed Aaron Kelly & Co to transfer the file to Lawlor Partners and the file was transferred.

10.

December 2012:

The point at which the Plaintiff was aware that the file was "incomplete"

11.

8 April 2013

Aaron Kelly & Co seek a copy of the file from The Defendants

12.

30 April 2013

First Named Defendant's telephone conversation with the Plaintiff who confirmed that he sought the file in order to pursue Ray White and during which the Plaintiff referred to the original file having been lost

by his barrister;

13.

22 May 2013

Further telephone conversation between the First Named Defendant and the Plaintiff in which the Plaintiff sought the file to pursue Ray White. The First Named Defendant asked the Plaintiff have his solicitor contact him.

14.

23 May 2013

The Plaintiff's son hand delivered the letter dated 8 th April 2013

15.

27 May 2013

Lawlor Partners return the file to Aaron & Kelly & Co on the basis that it was "incomplete"

16.

30 May 2013

The First Named Defendant wrote to the Plaintiff s solicitor Aaron Kelly & Co informing him that he had been on annual leave and that the matter would be dealt with

17.

4 June 2013

An Application was made, by Aaron & Kelly & Co on behalf of the Plaintiff, to The Master of The High Court, ex parte, for an order renewing the plenary summons under 0 8 r 1 RSC. It was renewed for 6 months from the date of the application

18.

16 September 2013

The file was handed over to Lawlor Partners for a second time

19.

2 December 2013

Service on First Defendant

20.

3 December 2013

renewed summons due to expire;

21.

6 December 2013

Service on Second Defendant

22.

28 March 2014

Plaintiff s application for pre-pleading discovery

23.

15 April 2014

The Defendants' solicitor sought a copy of the affidavit grounding the ex parte application

24.

29 April 2014

Chasing letter from the Defendants' solicitor

25.

20 May 2014

The Plaintiff s solicitor threatened to bring a motion seeking judgment in default of appearance

26.

27 May 2014

The Defendants' solicitor set out his objection to a motion seeking judgment in default of appearance

including the fact that the Plaintiff had not furnished a copy of the affidavit on which the application of 4 June 2013 was grounded

27.

29 May 2014

Notice of Change of Solicitor from Aaron Kelly 8 Palace Street Drogheda County Louth to Lawlor Partners 415 Arran Square, Arran Quay, Dublin 7

28.

9 June 2014

Plaintiff's solicitor furnished the Defendants' solicitor with a copy of the grounding affidavit of Sean Sheehan

29.

18 July 2014

Motion seeking to set aside renewal issued by the Defendants

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4. Order 8 rule 1 of the Rules of the Superior Courts provide as follows:

"No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The...

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1 cases
  • Monahan v Byrne
    • Ireland
    • Court of Appeal (Ireland)
    • 20 January 2016
    ...on the 20th day of January 2016 1 This is an appeal from the decision of the High Court (Hedigan J.) delivered on 27th April 2015 ( [2015] IEHC 263) whereby he allowed an appeal from the Master of the High Court and set aside an order renewing the plenary summons which grounded these proce......

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