Downey v The Council of The King's Inn

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 14 May 2018
• Neutral Citation: [2018] IEHC 258
• Docket Number: Record No. 2016 No. 8842P,[2016 No. 8842 P]
• Court: High Court
• Date: 14 May 2018

BETWEEN

PETER DOWNEY

Plaintiff

-and-

THE COUNCIL OF THE KING'S INNS,

HONORABLE SOCIETY OF KING'S INNS

and

THE EDUCATION COMMITTEE OF KING'S INNS

Defendants

[2018] IEHC 258

Record No. 2016 No. 8842P

THE HIGH COURT

Practice & Procedure – O. 12, r. 26 of the Rules of the Superior Courts – Plenary summons – Jurisdiction of the Court – Costs

Facts: In the present application, the defendants sought an order pursuant to the inherent jurisdiction of the Court for discharging the appearance entered on behalf of the defendants and an order pursuant to o. 12, r. 26 of the Rules of the Superior Courts for setting aside service of the plenary summons on the defendants for the failure to serve the plenary summons within 12 months from the date of issue. The defendants strongly relied on the judgments of Carswell J. in Bradford v. Department of the Environment [1986] NI 41, contending that there was a clear parallel between the facts of that case and the present case. The plaintiff placed strong reliance on the decision of the English Court of Appeal in Somportex Ltd v. Philadelphia Chewing Gum Corporation [1968] 3 All ER. The plaintiff contended that he had been prejudiced and that an application to renew the summons was much likely to be granted than if an application had been brought immediately after the expiry of the 12-month period.

Mr. Justice Denis McDonald held that the service of summons should be set aside pursuant to o. 12, r. 26 of the Rules of the Superior Courts. The Court held that the summons were served outside the 12-month period as prescribed by o. 8, r. 1 of the Rules of the Superior Courts, and no application had been made to date to renew the summons. The Court further held that the plaintiff was aware within four weeks of the date of entry of the appearance that the defendants were seeking to set aside the appearance so that they could contest the validity of the service of the summons. The Court held that a period of four weeks was not sufficient to give rise to any prejudice on the part of the defendants in the context of the necessary application to be made under o. 8, r.1 of the Rules of the Superior Courts.

Judgment of Mr. Justice Denis McDonald delivered on 14 May, 2018

1 The Plaintiff is a solicitor. While still a solicitor, he completed the degree course at the King's Inns. In these proceedings, he claims that the Defendants are in breach of contract with him as a consequence of their refusal to admit him to the Degree of Barrister-at-Law. He claims that there is nothing to prevent the Defendants awarding him the Degree of Barrister-of-Law notwithstanding that he is a solicitor. His counsel has said to the court that he does not intend to practice as a Barrister but, having been accepted for the two year part-time Barrister-at-Law Degree course, having paid the total fees for that course of €12,330, having passed the examinations and assessments, and having eaten the requisite number of dinners at the King's Inns, he is entitled to be conferred with the Degree of Barrister-at-Law.

2 It should be noted that although the proceedings relate to the 2008/2009 and 2009/2010 academic years at the King's Inns, the Plenary Summons was not issued until 4 October, 2016.

3 In the present application before the court, the Defendants seek the following relief:-

(a) An Order pursuant to the inherent jurisdiction of the Court discharging the appearance entered on behalf of the Defendants by Crowley Millar, Solicitors, on 6 November, 2017; and

(b) An Order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside service of the Plenary Summons on the Defendants for failure to serve the Plenary Summons within 12 months from the date of issue.

4 As noted above, the Plenary Summons in this case was issued on 4 October, 2016. Accordingly, it was necessary to serve the Summons not later than 3 October, 2017. However, the Summons was not presented to An Post for the purposes of postal service on the Defendants until 4 October, 2017. According to Order 121, Rule 3, the service by post of any document which is authorised to be served by post is deemed to have been effected at the time at which the document would be delivered in the ordinary course of post. In the present case, it appears from Exhibit 'SA3' to the Grounding Affidavit of Séan Alyward sworn on behalf of the Defendants that the Summons did not, in fact, reach the Defendants until 9 October, 2017. In circumstances where 4 October, 2017 was a Wednesday, and 9 October was a Monday, it is difficult to understand why the postal packet containing the copy Summons took so long to be delivered to the Defendants. For the purposes of Order 121, Rule 3, the date when service would be deemed to be effected must lie somewhere between 5 October, 2017 and 9 October, 2017. For present purposes, it is unnecessary to be more precise. Whether the Summons is deemed to have been served on 5 October, 2017 or 9 October, 2017, it is clear that more than 12 months had passed since the date of its issue, and, at the time of its service, the Summons could no longer be said to have been in force unless renewed by Order of the Court. This follows from the provisions of Order 8, Rule 1 as explained by the Supreme Court in Baulk v. Irish National Insurance Co. Ltd where Walsh J. said that a Summons ' shall not be in force for the purpose of service after [twelve months], unless renewed by leave of the Court'.

5 However, an unqualified appearance was entered to the Plenary Summons in this case on behalf of the Defendants by Crowley Millar, Solicitors, on 6 November, 2017. The form of appearance used in this case incorrectly refers to the ' Personal Injuries Summons served upon us on the 3rd day of November, 2017'. The Plenary Summons here was not a personal injuries summons. Nonetheless, although it is difficult to understand why the appearance refers to the incorrect form of summons and to an incorrect date of service, nothing ultimately turns on this error. The application now before the Court is to 'discharge' the unqualified appearance so that the Defendants would then be entitled to pursue the second element of their application before the court, namely the application to set aside service of the Summons pursuant to Order 12, Rule 26. The Defendants acknowledge that it would not be open to them to make any application pursuant to Order 12, Rule 26 unless the unqualified appearance entered on their behalf by Crowley Millar is discharged or set aside. This follows from the language of Rule 26 which provides as follows:-

'A defendant before appearing shall be at liberty to serve notice of motion to set aside the service upon him of the summons ...'. (Emphasis added).

6 This position is also confirmed in the case law. Thus, for example, in Sheldon v. Brown Bayley's Steelworks Ltd, Singleton L.J. said at p 400:-

'The position under Order 8, Rule 1 is that the Writ is not in force for the purpose of service after the 12 months period has run; it is still a Writ. The unconditional appearance by Dawneys ...is a step in the action; it amounts to a waiver with regard to service; it prevents Dawneys ...from being able to contend successfully that the service on them is bad'.

7 More recently, Hedigan J. observed in Transportstyrelson v. Ryanair Limited [2012] IEHC 226 at p 21 that:-

'In cases which fall outside the scope of the Convention, the general principle is that the entry of an unconditional appearance by the defendant is one of the steps which should be regarded as a submission to the jurisdiction of the Court by that defendant'.

The jurisdiction of the court to discharge or set aside an appearance

8 The basis for the Defendants' application to discharge the appearance is that the appearance was entered as a consequence of what the Defendants contend was a mistake (which I describe in more detail below). The parties are agreed that where an appearance has been entered as a consequence of a mistake, there is an inherent jurisdiction in the Court to set aside the appearance notwithstanding that there is no express rule contained in the Rules of the Superior Courts making any provision for such an application. This is in contradistinction to the Rules of Court in Northern Ireland and in England & Wales where express provision has been made for the making of such an application.

9 Both parties have drawn attention to the approach taken by Costello J. (as he then was) in an ex tempore judgment delivered in Taher Meats (Ireland) Ltd v. State Company for Foodstuff Trading where he said:-

'The first preliminary point that has been raised on this application relates to the fact that an appearance was entered by the second Defendant. The second Defendant has moved under O.12, r.26 which permits a defendant before appearing to serve a Notice of Motion to set aside an order authorising the service on it. I am quite satisfied that the appearance was entered by mistake. And whilst there is no specific rule on the matter, it seems to me that the court has an inherent jurisdiction to rectify such an error and I propose to discharge the appearance entered by the second Defendant. This means that the second Defendant is at liberty to apply under the rule to which I have referred to discharge the order in this matter'.

10 Although Costello J. cites no authority for this proposition, it is clear that even before the enactment of the express provisions now contained in the rules in both Northern Ireland and in England & Wales, the English courts had determined that there was a jurisdiction to set aside or discharge an appearance even where the appearance was unconditional in its terms. The case law acknowledges the existence of such a jurisdiction. For example, Carswell J. (as he then was) in Bradford v. Department of the Environment explained the position as follows:-

'The entry of an...