Dully v Athlone Town Stadium Ltd (No 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 30 May 2018
• Neutral Citation: [2018] IEHC 366
• Date: 30 May 2018
• Docket Number: [2017 No. 252 S.P.]
• Court: High Court

BETWEEN

DAVID DULLY

PLAINTIFF

AND

ATHLONE TOWN STADIUM LIMITED

DEFENDANT

(No. 3)

[2018] IEHC 366

[2017 No. 252 S.P.]

THE HIGH COURT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 30th day of May, 2018

1 In Dully v. Athlone Town Stadium Ltd. (No. 1) [2018] IEHC 209 [2018] 4 JIC 1203 (Unreported, High Court, 12th April, 2018) I removed the defendant as trustee in relation to the trust in these proceedings and directed the conveyance of the legal interest in the trust property to the new trustee. In Dully v. Athlone Town Stadium Ltd. (No. 2) [2018] IEHC 225 [2018] 4 JIC 1603 (Unreported, High Court, 14th April, 2018), I declined to order a stay on the conveyance of the legal title.

2 The plaintiff now seeks to progress his claim for damages and has sought to put in a further affidavit in that regard. The defendant has objected in principle to a further affidavit being filed at this stage. I have received helpful submissions from Mr. John Paul Shortt S.C. (with Mr. Martin G. Durack B.L.) for the plaintiff and from Mr. Michael Forde S.C. (with Mr. Laurence Masterson B.L.) for the defendant. Mr. Forde helpfully set out his objections under six grounds.

3 The first ground was that additional evidence should not be allowed due to the plaintiff's alleged “bungling” of the case and his taking up undue time with various applications. I would reject that as a characterisation of the plaintiff's conduct of the proceedings.

4 The second ground was that the plaintiff had already had ample time to put in affidavits and that there was no explanation for the delay. It seems to me that that is not a fatal reason because in giving the No. 1 judgment I envisaged that damages would be dealt with separately.

5 The third objection was that it was an abuse of the special summons procedure to allow the damages issue to be progressed in that way. However, O. 3 para. 22 of the Rules of the Superior Courts allows “such other matters as the Court may think fit to dispose of by special summons”, to be dealt with under this procedure. There was some suggestion by Mr. Forde that there should be a plenary hearing of the issue, but it was not made clear why this was necessary. It seems to me that if the affidavit is allowed, if the defendant is given time for a replying affidavit, and if the previous order for cross-examination is applied to both, then the defendant is not disadvantaged or at least not in any way that has been identified to date.

6 The fourth objection was that the proper approach should be that before a trial starts, a plaintiff should indicate an intention to deal with damages or other consequential aspects after substantive issues have been dealt with. He gave an example where such an order was made in Golden Belt 1 Sukuk Company BSC v. BNP Paribas; FCOF II UB Securities LLC and others v BNP Paribas [2018] 1 BCLC 385 [2017] EWHC 3182 (Comm) at 392 per Males J. I agree that that is best, but failure to do so does not mean that the court is precluded from making such order as...