Duignan v Dudgeon and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 14 October 2005
• Neutral Citation: [2005] IEHC 348
• Docket Number: No. 2478P/2005
• Court: High Court
• Date: 14 October 2005

DUIGNAN v DUDGEON & ORS

COMMERCIAL

BETWEEN/

SEAMUS DUIGNAN

PLAINTIFF

AND

VIVIAN W. DUDGEON, PATRICIA GAFFNEY, BARBARA MANNING RICHARD LAW NESBITT AND PETER MADDEN

DEFENDANTS

[2005] IEHC 348

No. 2478P/2005

THE HIGH COURT

PRACTICE AND PROCEDURE:

parties

Joinder - Defendant - Right to be joined as defendant against plaintiff's wishes - Whether defendant's presence necessary to enable effectual and complete adjudication - Barlow v Fanning [2002] 2 IR 593 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 15, r 13 -- Order joining defendant to proceedings (2005/2478P - Kelly J - 14/10/2005) [2005] IEHC 348Duignan v Dudgeon

Facts: The plaintiff, who was the former managing director of Arnotts and a member of the Arnotts’ Staff Pension Fund (the fund) claimed that the defendants, who were the trustees of the fund failed to properly consider and/or effect the transfer of his pension entitlements to another retirement benefit scheme following the termination of his employment with Arnotts. The defendants refused to transfer the plaintiff’s pension entitlements on the basis that his employer considered his termination to be a retirement and consequently he was not entitled to a transfer of his pension. The plaintiff maintained that he was dismissed from his employment. Subsequently, Arnotts sought to be joined as a defendant to the proceedings.

Held by Kelly J. in joining Arnotts as a defendant: That the pivotal issue for determination was whether or not the plaintiff retired from Arnotts. However, that issue could only be determined in a binding manner between the plaintiff and Arnotts. If Arnotts were not joined as a party to the proceedings the action could not effectually and completely be adjudicated upon.

Reporter: L.O’S.

PENSIONS ACT 1990 S34

RSC O.15 r13

BARLOW & ORS v FANNING & UNIVERSITY COLLEGE CORK (UCC) 2002 2 IR 593 2003 1 ILRM 29

ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS 1998 2 IR 519

KELLY v RAFFERTY 1948 NI 187

Mr. Justice Kelly

1 Arnotts Ltd. (Arnotts) applies to be joined as a defendant in these proceedings. The defendants, who are the trustees of the Arnotts” Staff Pension Fund (the trustees) support that application.

2 The plaintiff, who is the former managing director of Arnotts, having worked there for over 40 years, opposes the application.

3 The plaintiff is a member of the Arnotts” Staff Pension Fund (the fund). The current value of his pension is in excess of €5.3m.

4 In his statement of claim he contends that pursuant to the trust deed and rules of the fund and the provisions of s. 34 of the Pensions Act,1990, he was and continues to be entitled to the transfer of his pension to another retirement benefit scheme. He alleges that in breach of trust, fiduciary duty, statutory duty and in breach of the scheme the trustees failed to properly consider and/or effect the transfer of the plaintiff's pension entitlements. Particulars of these allegations are set out at para. 7 of the statement of claim. They read as follows:

"The plaintiff's employment terminated on 31st January, 2004. At all times, he intended to transfer his pension entitlements to an alternative scheme. On or about the 3rd day of February, 2004 the plaintiff requested the transfer from Mr. Knowles acting on behalf of the defendants who confirmed that he could transfer, subject only to receipt of information regarding the alternative scheme.

The plaintiff set up an alternative pension scheme known as the Seamus Duignan Executive Pension Portfolio (“the Rock River Enterprises Pension Scheme”), which was approved by the Revenue Commissioners.

The defendants failed to effect the transfer on the basis that the plaintiff's employer considered his termination to be a retirement. No retirement took place. On numerous occasions, the plaintiff sought to address this point with reference to the evidence apparently presented to the defendants by the company and sought such facility. The defendants refused to entertain the plaintiff's request to consider the evidence adduced by the company and the defendants purported to make a finding without affording the plaintiff an opportunity to consider and/or respond to the said evidence.

The defendants failed to afford the plaintiff any proper and/or fair procedure and deprived the plaintiff of the natural and/or constitutional justice which he was entitled to. In particular, the plaintiff was deprived of the evidence advanced by the company to the defendants which the defendants maintain was the basis of their concluding that the plaintiff had retired, upon which conclusion they based their refusal to transfer. Furthermore, the defendants gave the company priority when adjudicating on the plaintiff's right to transfer.

The plaintiff reserves the right to raise further particulars up to and including at the trial of the hearing and upon receipt of discovery, including third party discovery."

5 The primary relief claimed by the plaintiff is a declaration that the determination by the trustees regarding his right to transfer his pension entitlements is null and void and without legal effect.

6 In the trustees” defence, they specifically deny that the plaintiff's employment "terminated" on 31st January, 2004. They contend that the evidence available to them from both the plaintiff and Arnotts was that the plaintiff retired on 31st January, 2004. They further plead that in the light of the plaintiff's retirement he was not entitled to a transfer of his pension to another scheme and the trustees were not entitled to effect any such transfer.

7 It is clear from this exchange of pleadings that the plaintiff contends that his employment terminated on 31st January, 2004 but not by retirement. He positively asserts that no retirement took place. The trustees on the other hand contend that the evidence available to them from both...