Fitzpatrick v DAF Sales Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Hanlon
• Judgment Date: 21 November 1988
• Neutral Citation: 1989 WJSC-HC 282
• Docket Number: [1986 No. 2967P],No. 2967P/1986
• Court: High Court
• Date: 21 November 1988

1989 WJSC-HC 282

THE HIGH COURT

No. 2967P/1986

FITZPATRICK v. DAF SALES LTD

BETWEEN

ALAN FITZPATRICK

PLAINTIFF

AND

DAF SALES LIMITED AND ALLIED IRISH FINANCE COMPANY LIMITED

DEFENDANTS

Citations:

COSTELLO V RIORDAN CIRC APP 19.10.88

KUM TONG RESTAURANT (DUBLIN) LTD, IN RE 1978 IR 446

FIELD V MEGAW LR 4 CP 660

WARREN (F B), IN RE EX PARTE WHEELER (A M) V TRUSTEE IN BANKRUPTCY 1938 CH 725

BIBBY (JAMES) LTD V WOODS & HOWARD 1949 2 KB 449, 1949 2 AER 1

Synopsis:

EQUITY

Assignment

Chose in action - Debt - Solicitor - Undertaking - Solicitor's letter to client's bank undertaking to pay bank's claim against client from moneys payable to client - Bank's claim as assignee superior to judgment creditor's claim to attach moneys so payable - ~See~ - Practice, garnishee - (1986/2967 P - O'Hanlon J. -

21/11/88) - [1988] I.R. 464

|Fitzpatrick v. Daf Sales|

PROFESSIONS

Solicitor

Costs - Undertaking - Moneys payable to client - Solicitor's letter to client's bank undertaking to pay bank's claim from moneys so payable when received - Equitable assignment of debt payable to client - Bank's claim as assignee superior to judgment creditor's claim to attach debt payable to client - Failure of solicitor to obtain charging order to secure his costs - Rights of equitable assignee and of judgment creditor unaffected by solicitor's claim to his costs - ~See~ Practice, garnishee -(1986/2967 P - O'Hanlon - 21/11/88) - [1988] I.R. 464

|Fitzpatrick v. Daf Sales Ltd.|

PRACTICE

Garnishee

Debts - Attachment - Equity - Assignment - Solicitor's undertaking to pay client's bank from moneys payable to client - Bank's claim as assignee superior to claim of judgment creditor to attach the moneys payable to the client - Failure of solicitor's claim to his charges - The plaintiff recovered judgment against the first defendant for #24,000; a stay on execution of the judgment was imposed upon condition that the first defendant paid #12,000 to the plaintiff before 22/10/87 and that he paid a further #12,000 to the plaintiff before 15/10/88 - In the same action the second defendant recovered judgment against the plaintiff for #18,000 with a stay on execution provided that the plaintiff paid the said sum by specified instalments and at specified times - The plaintiff failed to pay the said instalments and the second defendant thereupon entered judgment against the plaintiff for #15,250 - On 10/10/88 the second defendant obtained in the High Court a conditional order of garnishee attaching the second sum of #12,000 which the first defendant was due to pay to the plaintiff on or before 15/10/88 - The second defendant here applied for an order absolute - At the hearing of the second defendant's motion it appeared that the plaintiff had negotiated, before the application for the conditional order, a loan of #9,500 from his bank and that the loan had been obtained in consideration (inter alia) of the receipt by the bank of three letters from the plaintiff`s solicitor - In the first letter, dated 19/11/87 the plaintiff's solicitor had written to the bank and stated that, in the event of the bank granting the plaintiff facilities in the sum of #7,000 the solicitor undertook "to discharge my client's liaility of #7,000 plus interest thereon as soon as I receive the balance amounting to #12,000" - By his second letter the plaintiff's solicitor undertook to forward an additional sum of #2,000 (making total of #9,000) from the balance of the award of compensation due to the plaintiff - By his third letter, dated 14/3/88 the plaintiff's solicitor undertook to forward an additional #500 (making a total of #9,500) "from the balance of the award of compensation due to" the plaintiff - Held that the letters of the plaintiff's solicitor effected an equitable assignment to the plaintiff`s bank of such part of the #12,000 remaining payable by the first defendant to the plaintiff as would satisfy the bank's claim to payment of #9,500 with interest: ~Byrne v. Allied Irish Banks~ [1978] I.R. 446, ~Field v. Megaw~ L.R. 4 C.P. 660 and ~In re Warren, Wheeler v. Trustee in Bankruptcy~ [l938] 1 Ch. 725 considered - Held that the plaintiff's solicitor could not assert a claim in respect of his charges superior to the claim of the second defendant since the solicitor had not obtained a charging order to secure those charges: ~James Bibby Ltd. v. Woods~ [1949] 2 K.B. 449 considered - Held that the second defendant was entitled to an order absolute attaching so much of the sum payable by the first defendant to the plaintiff as remained after the satisfaction of the bank's claim as assignee of the said sum of #9,500 with interest thereon - (1986/2967 P - O'HanIon J. - 21/11/88)1988 IR 464

|Fitzpatrick v. Daf Sales Ltd.|

1 Judgment of Mr. Justice O'Hanlon delivered the 21st day of November 1988.

2 As two separate legal issues arise in this application to make absolute a conditional order of garnishee, I have decided to incorporate my decision in one single judgment, although I have already dealt separately with the first of the said issues and put back the matter for further legal argument in relation to the second.

3 The Plaintiff brought proceedings against the first and second-named Defendants in relation to the sale to him of a motor vehicle under an arrangement in which the first-named Defendant was the supplier and the second-named Defendant was the hire-purchase company. The outcome of those proceedings was that the Plaintiff obtained judgment against the first-named Defendant, DAF Sales Limited, for the sum of £24,000, with a stay of execution on condition that the sum of £12,000 should be paid on or before the 22nd October, 1987, and the further sum of £12,000 on or before the 15th day of October, 1988; the Plaintiff's claim against the second-named Defendant, Allied Irish Finance Company Limited, was dismissed with no order as to costs and the said Defendant obtained judgment on its counterclaim against the Plaintiff for the sum of £18,000, with a stay on execution if the said sum were paid by agreed instalments within a specified time.

4 The Plaintiff having made default in payment of the said instalments payable by him to the second-named Defendant, the said Defendant entered judgment against him for the balance due, amounting to £15,250, and applied to the High Court on the 10th October, 1988, for a conditional order of garnishee to attach the sum of £12,000 still remaining due by the first-named Defendant to the Plaintiff. A conditional order was granted by the President of the High Court on the 10th October, 1988, and the application to make absolute the said conditional order came before me on the 7th November, 1988.

5 The application was resisted by the Plaintiff...