Emerald Isle Insurance and Investments Ltd v Dorgan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Meenan |
| Judgment Date | 03 April 2018 |
| Neutral Citation | [2018] IEHC 214 |
| Docket Number | [2010 No. 6640 P] |
| Court | High Court |
| Date | 03 April 2018 |
[2018] IEHC 214
THE HIGH COURT
Meenan J.
[2010 No. 6640 P]
AND
AND
Practice & Procedure – Validity of lodgement – O. 22, r. 1(10) of the Rules of the Superior Courts – Personal injury actions
Facts: In the present application, the first and third named plaintiffs challenged the validity of the lodgement made by the defendants in the Court, claiming that such lodgement could only be made with the leave of the Court. The first named plaintiff submitted that the defendants were not entitled to rely upon the provisions of o.21, r. 1(10) of the Rules of the Superior Courts for making the lodgement as the provision was only applied to personal injury actions. The first named plaintiff argued that permitting the defendants to make a lodgement without application to the Court would be unfair and it would give an improper advantage to the defendants. The defendants contended that the lodgement was made after an appearance was entered but before the action was set down for trial and thus, it was in accordance with the provisions of o. 22, r. 1(1)(a) and therefore, the leave of the Court was not required. The defendants argued that the wording of o. 22, r. 1(1)(a) was clear and unambiguous.
Mr. Justice Meenan held that the lodgement was in accordance with o. 22, r. 1(1)(a)(i) and therefore did not require the leave of the Court. The Court held that such lodgement was not unfair and the defendants had not gained any improper advantage by reason of hearing of the action in the High Court. The Court disagreed with the first named plaintiff's submission that the wording of o. 22, r. 1(10) applied only to the personal injury actions.
These proceedings commenced by way of plenary summons issued on 13th July, 2010 and were set down for trial on 7th July, 2011. On 14th November, 2011 the court granted the defendants liberty to make a late lodgement. Subsequently, the action came on for hearing before Kearns P. in the High Court in December 2011. The action was heard over a period of twelve days between 6th December, 2011 and 18th January, 2012. In an ex tempore judgment delivered on 18th January, 2012 the plaintiffs' claim was dismissed and the monies lodged into court were released back to the defendants.
Following an appeal by the plaintiffs, the Court of Appeal reversed the decision of Kearns P. and made a finding of liability against the defendants in favour of the first named plaintiff ( Emerald Isle Assurances and Investments Ltd v Dorgan [2016] IECA 12). The Court of Appeal remitted the proceedings to the High Court for an assessment of damages (if any) suffered by the first named plaintiff as a result of the defendants' negligent breach of duty, taking into account any question of contributory negligence.
On 11th July, 2016 there was an unsuccessful attempt to resolve the action by mediation.
On 4th November, 2016 the defendants paid into court a sum of money (the lodgement) in satisfaction of the first named plaintiff's claim. The action was again set down for trial on 11th May, 2017 and it was assigned a new list number.
By letter dated 18th January, 2018 the first and third named plaintiffs challenged the validity of the lodgement made on 4th November, 2016 claiming that such lodgement could only be made with the leave of the court.
The issue which this Court has to determine is whether the lodgement made on 4th November, 2016 was a valid lodgement or whether the leave of the court was required, on notice to the plaintiffs, to make such lodgement.
The issue is governed by O. 22 of the Rules of the Superior Courts ('RSC'). Order 22, r. 1(1), as amended provides:
'1. (1) In any action for a debt or damages (other than an action to which Section 1(1) of the Court Acts, 1988 applies) or in an admiralty action the defendant may -
(a) at any time after he has entered an appearance in the action and
(i) before it is set down for trial, or
(ii) in the case of proceedings subject to case management under Part II of Order 63C, within four weeks of the fixing of a trial date or
(b) 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 amount recoverable by the plaintiff from the defendant in the claim or (where several causes of action are joined in one action) in satisfaction of the amount recoverable by the plaintiff from the defendant in one or more of the causes of action.'
Order 22, r. 1(10) provides:-
'Notwithstanding subrule 7 (which applies to personal injuries actions), in any case in which a period in excess of eighteen months has elapsed since the date of the notice of trial, a Defendant may, without leave, make a payment into Court within twenty one days, upon notice to the Plaintiff, provided that the said payment, if not accepted by the Plaintiff, shall not take effect until the expiry of two months from the date upon which it was made or increased, as the case may be'.
The principal submission by Mr. Senan Allen S.C., on behalf of the defendants, was that the lodgement of 4th November, 2016 was made after an appearance was entered but before the action was set down for trial on 11th May, 2017. This, it was submitted, is in accordance with the provisions of O. 22, r. 1(1)(a) and therefore it follows that the leave of the court was not required.
If the defendants are not entitled to rely on O. 22, r. 1(1)(a) then, it was submitted, they are entitled to rely upon O. 22, r. 1(10) which also enables a lodgement to be made without the leave of the court.
Counsel for the defendants submitted that the wording of O. 22, r. 1(1)(a) is clear and unambiguous. However, in cases where the court has to interpret the rule, it should do so in the context of public policy in favour of encouraging parties to try to resolve actions without having a court hearing, as is clearly set out in the following passage from Delaney & McGrath, Civil Procedure in the Superior Courts 3rd Ed., (Dublin, 2012) at para. 18–01:-
'There is a strong public policy argument in favour of encouraging and facilitating parties to settle proceedings rather than litigating them to conclusion. As Peart J commented in Kearney v. Barrett 'it is desirable that all efforts to resolve disputes without incurring the high cost of a court hearing should be explored before the trial.''
The defendants rejected the submission of the first named plaintiff that the making of a lodgement in November 2016, without the leave of the court, was unfair in circumstances where the defendants had gained an improper advantage by reason of the hearing of the action before the High Court, the subsequent appeal before the Court of Appeal and the mediation held in July 2016.
As regards the hearing of the action and the subsequent appeal, Mr. Allen argued that both parties were now aware of the strengths and weaknesses of the each others case so that no advantage, improper or otherwise, could be gained by either side. As for the mediation, reliance was placed on a letter sent by the defendants prior to the mediation dated 1st July, 2016. I will return to the terms of this letter later.
Finally, Mr. Allen referred the court to the Supreme Court decision in Cyril Reaney, Ita O'Regan and Travelon Limited v. Interlink Ireland Limited (T/A as DPD) [2018] IESC 13. This case considered the consequences of failing to beat a lodgement. The majority decision was delivered by O'Donnell J. In his judgment, O'Donnell J. referred to O. 22, r. 6.
O. 22, r.6 provides that where a plaintiff 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) ...
(2) ...
(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.'
In interpreting this rule, O'Donnell J. emphasised that a trial judge has a degree of discretion in making a costs order where the amount...
To continue reading
Request your trial
-
Feely v Bank of Ireland Group Plc
...I.R. 1; White Young Green Environmental (Ireland) Ltd v Gethings [2015] IEHC 498; Emerald Isle Insurance and Investments Ltd. v. Dorgan [2018] IEHC 214; O'Mahony v. Hermann & Anor. [2022] IEHC 9 and Carpenter v Stoneavon Holdings Ltd [2016] 1 IR 367. Extracts from Delaney and McGrath on Civ......