Fitzharris v O'Keeffe and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Lafoy
• Judgment Date: 21 November 2012
• Neutral Citation: [2012] IEHC 481
• Court: High Court
• Date: 21 November 2012

[2012] IEHC 481

THE HIGH COURT

[No. 16720P/2004]

Fitzharris v O'Keeffe & Ors

BETWEEN

JIM FITZHARRIS

PLAINTIFF

AND

MICHAEL O'KEEFFE, JIMMY DUNNE, RICHIE McLOUGHLIN, SIMON DEVEREUX, CHRISTOPHER A.G. GAVICAN, TURLOUGH COFFEY, MICHAEL CUNNINGHAM, EDDIE KELLY, SEAN DORRIS, MARGARET NEIL, GERARD BURNS, RAY DEVINE, PADDY McCARTHY, MICHAEL GILMARTIN AND JIM O'CONNOR

DEFENDANTS

RSC O.28 r1

FITZHARRIS v O'KEEFFE & ORS UNREP LAFFOY 18.12.2008 2008/24/5228 2008 IEHC 438

MCFADDEN v DUNDALK & DOWDALLSHILL COURSING CLUB LTD & ORS UNREP FINLAY 22.4.1994 1998/25/9762

ALLEN v IRISH HOLEMASTERS LTD UNREP SUPREME 27.7.2007 2007 IESC 33 2007/3/594 2008 1 ILRM 81

SHEPPERTON INVESTMENT CO LTD v CONCAST (1975) LTD UNREP BARRON 21.12.92 1993/5/1393

PALAMOS PROPERTIES LTD v BROOKS 1996 3 IR 597

CROKE v WATERFORD CRYSTAL LTD 2005 2 IR 383

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED PARA 5-144

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED PARA 5-124

PRACTICE AND PROCEDURE

Amendment to pleadings

Application for liberty to file and serve amended defence - Proposed amendments in context of existing pleadings - Preventing of renewal of membership of national association of game councils - Disaffiliation of council from national association subsequent to passing of motion - Application to amend defence to plead that plaintiff without nexus to association or locus standi - Delay in seeking leave to amend - Absence of excuse for delay - Discretion in permitting amendments - Whether necessary for purpose of clarifying real questions of controversy - Whether allowing of amendment would give rise to real prejudice - Irrelevance of amendment to issue of liability - McFadden v Dundalk and Dowdallshill Coursing Club (Unrep, SC, 22/4/1994); Allen v Irish Holemasters Ltd [2007] IESC 33, (Unrep, SC, 27/7/2007); Shepperton Investment Company Ltd v Concast (1975) Ltd (Unrep, Barron J, 21/12/1992); Palamos Properties Ltd v Brooks [1996] 3 IR 597 and Croke v Waterford Crystal Ltd [2005] 2 IR 383 considered - Rules of the Superior Courts 1986 (SI 15/1986), O28, r 1 - Application dismissed (2004/16720P - Laffoy J - 21/11/2012) [2012] IEHC 481

Fitzharris v O'Keeffe

Facts: The proceedings related to an application by all of the defendants other than the third, sixth and thirteenth defendants, seeking an order granting liberty to serve and file an amended defence. The plaintiff was a hunter who in substantive proceedings impugned a motion as passed by the National Executive of the defendant National Association. His application for membership was declined unless certain conditions were met. He was later subsequently excluded from membership of a Compensation Fund. The Court had previously considered the rules of the National Association in proceedings. The amendment sought to add eleven paragraphs to the proceedings relating to an event two years after the core wrong. It was claimed that the plaintiff had no nexus with the National Association and thus that his claim was moot. The Court considered whether the proposed amendments were necessary to clarify the real questions of controversy in the proceedings and whether and prejudice would ensue.

Held by Laffoy J. in dismissing the proceedings, that the proposed amendments were not necessary for the purpose of clarifying the real questions of controversy and on the contrary, were confusing. It was impossible to discern a basis on which the defendants could rely on an event two years after the alleged core wrong as an answer to the claim on liability.

1 Judgment of Miss Justice Lafoy delivered on 21st day of November, 2012.

1. The application and its context

2 On this application all of the defendants other than the third, sixth and thirteenth defendants (these defendants) seek an order granting liberty to serve and file an amended defence upon such terms as may be just and necessary for the purposes of determining the real questions in controversy between the parties. Although not specifically invoked, that application is obviously brought pursuant to Order 28, rule 1 of the Rules of the Superior Courts 1986 (the Rules) which provides that the Court may, at any stage of the proceedings, allow a party to amend his pleadings in such manner and on such terms as may be just. Rule 1 goes on to extend the Court's discretion to-

"… all amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties."

3 2 1.2The chronology of the procedural steps in these proceedings is as follows:

21 st July, 2004:	Plenary summons issued.
30 th November, 2004:	Statement of claim issued.
5 th April, 2005:	Defence delivered.
7 th November, 2005:	Order of the Court (Clarke J.) made on the application of these defendants that a preliminary issue be tried as to whether there could be said to be any contract and/or any collateral contract between the plaintiff and these defendants/the National Association of Regional Game Councils as might arguably give rise to the various contentions as pleaded by the plaintiff.
18 th December, 2008:	Judgment delivered by the Court (Laffoy J.) on the preliminary issue - Neutral Citation [2008] IEHC 438.
10 th February, 2010:	Notice of trial was first served on these defendants' solicitors in relation to all of the thirteen defendants referred to herein as "these defendants".
1 st March, 2011:	Request by the solicitors for these defendants for consent to delivery of an amended defence.
1 st March, 2011:	Refusal of the plaintiff's solicitors to consent to delivery of an amended defence.

1 ^stJune, 2011: Notice of motion issued on this application returnable for 4 ^th July, 2011.

4 2 1.3 It is convenient at this stage to reiterate the summary of the plaintiff's case, as pleaded, as set out in the judgment of 18 ^th December, 2008. It was as follows:

"In the statement of claim delivered on 30 ^th November, 2004 the plaintiff is described as a keen game hunter. The following matters are pleaded to illustrate the plaintiff's relationship to the defendants:-"

(a) that the plaintiff has been a member of Ballitore Game Club (the Club) since 1971 and its secretary since 1974;

(b) that the club is affiliated to Kildare Regional and Game Wildlife Council (the Council) and the plaintiff was at all material times a serving officer of the Council since the early 1980s;

(c) that at all material times the plaintiff was a member of the National Association of Regional Game Councils of Ireland (the National Association);

(d) that the National Association operates a self insurance scheme entitled "The National Association of Regional Game Councils Game Hunting Compensation Fund" (the Compensation Fund); and

(e) that the defendants are members of the National Executive of the National Association and that they are being sued in these proceedings in their representative capacity.

5 In the pleas in the statement of claim which are at the core of the preliminary issue it is contended as follows:-

6 (i) By contract or collateral contract effective from 1 ^st August, 2003 (and similarly for previous years) made between the plaintiff and the National Association, the plaintiff and the National Association agreed to be bound by the Constitution and Rules of the National Association as adopted on 11 ^th February 1995, as amended;

7 (ii) The plaintiff's application for renewal together with the Constitution and Rules of the National Association and the correspondence that had been exchanged between the parties represented the terms of a contract and/or collateral contract between the plaintiff and the National Association;

8 (iii) Pursuant to the terms of the contract the National Executive of the National Association was under a duty to consider the plaintiff's application for membership in accordance with the Constitution and Rules, in particular, Rule 19, and in accordance with the requirements of natural and constitutional justice, and properly, fairly and reasonably;

9 (iv) In preventing the renewal of the plaintiff's membership, these defendants acted ultra vires their powers and in breach of the plaintiff's contractual rights; and

10 (v) The National Association is under a duty to admit the plaintiff to membership when he complies with its rules in all material respects.

11 The kernel of the plaintiff's complaint against the National Association as pleaded, which is not factually disputed, is that on the 8 ^th September, 2003, a motion was passed by the National Executive of the National Association that the membership of the plaintiff be declined at the next renewal unless certain conditions were met. On 20 ^th May, 2004, the plaintiff duly completed a proposal for renewal of his membership number 6210 of the Compensation Fund, which was declined, thus excluding him from membership of the Compensation Fund and effectively from membership of the National Association or its constituent parts and the benefits therefrom."

12 That summary highlights the aspects of the plaintiff's claim as pleaded which are pertinent to the issue now before the Court, although the reliefs claimed are also pertinent and will be outlined later.

13 3 1.4 In the judgment of 18 ^th December, 2008 the Court answered the question posed for preliminary determination as follows:

"Having regard to the Constitution and Rules of the National Association, there can be said to be a contract between the plaintiff and the National Association such as might arguably give rise to the various contentions as pleaded by the plaintiff."

14 It is reasonable to infer that the application to amend the defence, which was initiated two and a half years later, was prompted, at least to some extent, by...