Geraldine Nolan v Joseph Carrick and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 25 October 2013 |
| Neutral Citation | [2013] IEHC 523 |
| Court | High Court |
| Date | 25 October 2013 |
BETWEEN
AND
AND
AND
[2013] IEHC 523
THE HIGH COURT
PRACTICE AND PROCEDURE
Set aside
Motion to set aside where party did not appear at trial - Application to extend time - Application to set aside pursuant to inherent jurisdiction of court - Mental capacity - Judgment for damages arising from sexual abuse - Whether element of mistake or surprise about cases being listed - Whether real prospect of success for party applying to set aside - Whether appropriate to set aside judgment pursuant to O 36, r 33 - Whether exceptional circumstances arising from conduct of proceedings by court - Whether alternative remedy of appeal available such as to render it inappropriate to exercise inherent jurisdiction - Whether cognitive ability impaired to extent of insufficient understanding of nature, extent and consequences of decisions made for litigation at relevant time - Schafer v Blyth [1920] 3 KB 140; Wise v Swami Omkarananda (Unrep, Popplewell J, 21/2/1985); Hayman v Rowlands [1957] 1 All ER 321; Shocked and Another v Goldschmidt and Another [1994] Times (4/11/1994); In Re Greendale Developments Limited (No 3) [2000] 2 IR 514; Bula Limited v. Tara Mines Limited (No 6) [2000] 4 IR 412; Desmond v Moriarty [2012] IEHC 202, (Unrep, Dunne J, 17/2/2012); LP v MP [2002] 1 IR 219; People (DPP) v McKevitt [2009] IESC 29, (Unrep, SC, 26/3/2009); Talbot v McCann Fitzgerald [2009] IESC 25, (Unrep, SC, 26/3/2009); Bank of Scotland (Ireland) Limited v Mannion [2010] IEHC 419, (Unrep, Laffoy J, 18/11/2010); Hay v O'Grady [1992] 1 IR 210; O'Connor v Dublin Bus [2003] 4 IR 459; Cooper Flynn v RTE (Unrep, SC, 28/4/2004); Wiszniewsky v Central Manchester Health Authority [1998] PIQR 324; Fyffes Pic v DCC plc [2005] IEHC 477, [2006] IEHC 32, [2007] IESC 36, [2009] 2 IR 417; Masterman-Lister v Brutton and Company (Nos 1 and 2) [2003] 1 WLR 1511; Fitzpatrick v KF [2008] IEHC 104, [2009] 2 IR 7; Dunhill v Burgen (No 2) [2012] EWHC 3163 (QB), [2012] 1 WLR 3739; Presho v Doohan [2009] IEHC 631, (Unrep, Murphy J, 29/4/2009) considered - Rules of the Superior Courts 1986 (SI 15/1986) O 36, r 33 and O 58, r 7 - Courts of Justice Act 1936 (No 48), s 39 - Constitution of Ireland 1937, Art 34.4.6 - Applications to set aside refused (2004/19859P and 2004/19860P - Dunne J - 25/10/2013) [2013] IEHC 523
Nolan v Carrick
The plaintiffs in these actions, Geraldine Nolan and Jacqueline O”Toole, obtained damages against the defendant, Joseph Carrick following trials on the 20 th and 21 st of November 2012. This arose from sexual abuse of the plaintiffs by the defendant. Following these judgments, the plaintiffs obtained orders preventing the defendant from dissipating his assets. The two actions appeared in the jury list which commenced on the 13 th of November 2012. That day, an order was made allowing the defendant”s solicitors to come off record with his written consent. Another application was made on behalf of the defendant to take the cases off the list as he was booked for hip replacement surgery on the 20 th of November. The defendant was advised by his former solicitors that the cases remained on the list. Mr Carrick failed to appear and Ms Nolan obtained a decree against the defendant in the sum of €700,000, while Ms O”Toole obtained a decree in the sum of €4 million.
The defendant sought an order under Order 36, Rule 33 of the Rules of the Superior Courts setting aside the verdict of the court. The rule provides that ‘any verdict or judgement obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit’. The court considered that the defendant consented to his solicitors coming off record; the fact that the defendant had been notified that the case remained on the list; and the fact that following the refusal to adjourn these cases, no appeal was brought. As such, it was held that a deliberate decision not to attend court was made and that O. 36, r. 33 was not applicable.
The defendant also sought an order setting aside the judgment and directing a new trial as he lacked the mental capacity to defend the actions. The court noted that to set aside a final order, there was a ‘very heavy onus’ on the applicant. The circumstances for this were described as ‘very limited’ and usually unavailable where another remedy was available. The court then considered the mental capacity evidence which included severe pain as a result of depression in conjunction with physical discomfort associated with hip replacement surgery. It was also noted that the defendant suffered from ‘mild cognitive impairment’ and an ‘evolving pattern of dementia’.
Held by Dunne J., the critical question in this case was whether the defendant had the necessary capacity to litigate in November 2012. The appropriate test to be applied was whether the defendant”s cognitive ability was impaired to the extent that he failed to sufficiently understand, ‘with the assistance of such proper explanation from legal advisers and such experts as the nature of the case may have required, the issues on which his decision was likely to be necessary, the nature and effect of the decisions made in the course of the litigation, and the consequences of the decisions made by him for the litigation at that time’. Following a consideration of the evidence including that the experts had not seen the defendant until 2013, his capacity to defend four criminal trials between November 2011 and July 2012 and his ability to provide a detailed account of the circumstances drawn from an affidavit sworn in March 2013, the court was of the opinion that while by November 2012 the defendant was likely to have been in pain—the evidence didn”t go far enough to satisfy the applicable test of capacity.
The court therefore held that the defendant did not lack the capacity to make decisions relating to litigation in November 2012 and refused to set aside the judgments requested.
RSC O.36 r33
SCHAFER v BLYTH 1920 3 KB 140
WISE v SWAMI OMKARANANDA (UK) UNREP POPPLEWELL 21.2.1985
HAYMAN v ROWLANDS 1957 1 AER 321
SHOCKED & ANOR v GOLDSCHMIDT & ANOR 4.11.1994 1998 1 AER 372
GREENDALE DEVELOPMENTS (NO.3), IN RE 2000 2 IR 514
CONSTITUTION ART 34.4.6
BULA LTD v TARA MINES LTD (NO.6) 2000 4 IR 412
DESMOND v MORIARTY UNREP DUNNE 17.2.2012 2012 IEHC 202
P (L) v P (M) 2002 1 IR 219
COURTS OF JUSTICE ACT 1936 S39
D (M) & M (J) v MIN FOR HEALTH UNREP O'NEILL 15.2.2002 2002/6/1316
DPP v MCKEVITT UNREP SUPREME 26.3.2009 2009/18/4243 2009 IESC 29
TALBOT v MCCANN FITZGERALD SOLICITORS & ORS UNREP SUPREME 26.3.2009 2009/54/13657 2009 IESC 25
BANK OF SCOTLAND (IRELAND) LTD v MANNION UNREP LAFFOY 18.11.2010 2010/4/797 2010 IEHC 419
HAY v O'GRADY 1992 1 IR 210
O'CONNOR v DUBLIN BUS 2003 4 IR 459
RSC O.58 r7(2)
COOPER-FLYNN v RADIO TELEFIS EIREANN (RTE) & BIRD & HOWARD 2004 2 IR 82
WISZNIEWSKY v CENTRAL MANCHESTER HEALTH AUTHORITY 1998 PIQR 324
FYFFES PLC v DCC PLC 2009 2 IR 417
MASTERMAN-LISTER v BRUTTON & CO (NO.1 & 2) 2003 1 WLR 1511
MENTAL HEALTH ACT 1983 S94
FITZPATRICK v F (K) 2009 2 IR 7
DUNHILL v BURGEN (NO.2) 2012 1 WLR 3739
PRESHO v DOOHAN & OSTAN THORAIGH COMHLACHT TEORANTA UNREP MURPHY 17.7.2009 2010/43/10959 2009 IEHC 619
STATUTE OF LIMITATIONS ACT 1957 S49
JUDGMENT of Ms. Justice Dunne delivered the 25th day of October 2013
The plaintiffs in these actions obtained damages against the defendant following trials before judge and jury on the 20 th and 21 st November, 2012 arising from the sexual abuse of the plaintiffs by the defendant. Following the judgments, the plaintiffs sought and obtained various orders to prevent the defendant from dissipating his assets. The two actions appeared in the jury list which commenced on the 13 th November, 2012. An order was made on that day allowing the defendant's solicitors to come off record. That application was made in the absence of the defendant, but he had furnished a written consent to the application. It appears to be the case that an application was also made on behalf of the defendant to take the cases out of the list having regard to a letter from an orthopaedic surgeon stating that the defendant was booked for admission to Mount Carmel Hospital on the 20 th November, 2012, for total hip replacement and which noted that the defendant was "presently housebound". The two actions were left in the list and the former solicitors for the defendant advised the defendant by email that the cases remained in the list and that there was some possibility that the cases might go ahead "tomorrow or later in the week".
The defendant did not appear in court on any subsequent day and the actions proceeded. Ms. Nolan obtained a decree against the defendant in the sum of €700,000 and Ms. O'Toole obtained a decree in the sum of €4 million. Each obtained orders for costs.
The defendant is now represented by new solicitors. A series of motions have been brought on his behalf seeking various reliefs and seeking to lift injunctions relating to the dissipation of his assets and the reversal of an order appointing a receiver by way of execution. In addition, this motion was issued on the 11 th April, 2013 seeking an order pursuant to O. 36, r. 33 of the Rules of the Superior Courts setting aside the judgment and verdict of the court; if necessary, an order extending the time within which to make such application and an order pursuant to the inherent jurisdiction of the court setting aside the verdict and judgment in each case.
The applications herein were grounded upon an affidavit of Joseph Burke of McCartan and Burke, solicitors who are now on record on behalf of the defendant...
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...in these circumstances it would not be right to set aside the judgment. 19 These principles were applied by Dunne J. in Nolan v. Carrick [2013] IEHC 523, another case where the defendant had deliberately absented himself from his trial. As Dunne J. explained: ‘It seems to me that the purpos......
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