Ely v Dargan

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 30 June 1967
• Date: 30 June 1967

Supreme Court.

Ely v. Dargan.

MARTIN ELY, an Infant; suing by his Father and Next Friend, Martin Ely; Plaintiff

and

GEORGE DARGAN, Defendant (1)

Practice - Payment of money into court with defence - Trial - Plaintiff awarded damages - Award set aside and new trial directed - Application by defendant for liberty to make additional payment into court - Application granted upon terms - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962),Or. 22, r. 1.

Appeal from the High Court.

The plaintiff, Martin Ely, claimed damages in the High Court for personal injuries which he alleged were caused by the negligence of the defendant, George Dargan. The defendant paid the sum of £7,000 into Court with his defence. At the trial of the action, before a judge and jury, the plaintiff was awarded the sum of £13,000 as damages. The defendant appealed and the Supreme Court set aside the award as being excessive, directed a new trial, ordered the plaintiff to pay the defendant his costs of the appeal and also ordered that the costs of the trial should abide the result of the new trial. Subsequently, the plaintiff's claim was compromised subject to the approval of the High Court, which approval was not forthcoming. The defendant then applied to the High Court (Murnaghan J.) for liberty to increase the amount of money that he had paid into Court and such liberty was refused except on terms which were not acceptable to the defendant, who appealed to the Supreme Court against such refusal.

Order 22, r. 1 (1), of the Rules of the Superior Courts, 1962, inter alia provides:—"In any action for a debt or damages or in an admiralty action the defendant may before or at the time of delivering his defence . . . or at any later time by leave of the Court, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim . . ."

Rule 4 of that Order inter alia provides:—"(1) Where money is paid into Court under rule 1 the plaintiff may, within fourteen days of the receipt of the notice of payment into Court, accept the whole sum . . . in satisfaction of the claim . . . by giving notice to the defendant in the Form No. 5 in Appendix C; and thereupon he shall be entitled to receive payment of the accepted sum . . . in satisfaction

as aforesaid. (3) If the plaintiff accepts money paid into Court in satisfaction of his claim, . . . he may after four days from payment out and unless the Court otherwise orders, tax his costs incurred to the time of payment into Court, and forty-eight hours after taxation may sign judgment for his taxed costs."

Rule 6 of that Order provides:—"If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:

(1) If the amount paid into Court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in Court.

(2) The plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded,

(3) The defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid.

(4) The costs mentioned at paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, in so far as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant.

(5) Any money remaining in Court after satisfying the balance (if any) due to the defendant...