Irish Bank Corporation Ltd (in special liquidation) v Gaw
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 26 March 2019 |
| Neutral Citation | [2019] IEHC 476 |
| Docket Number | [2013 No. 1829P] |
| Court | High Court |
| Date | 26 March 2019 |
[2019] IEHC 476
THE HIGH COURT
MacGrath J.
[2013 No. 1829P]
Summary judgment – Amendment of title in proceedings – Additional evidence – Plaintiff seeking to amend the title in proceedings – Whether the plaintiff should be permitted to adduce additional evidence
Facts: The plaintiff, Irish Bank Corporation Limited (in special liquidation), claimed judgment in the sum of €291,031.33 which it was alleged was due and owing by the defendant, Mr Gaw, in respect of money paid to him under a mistake. A claim was also made, inter alia, for deceit and breach of trust. The defendant brought an application to dismiss the plaintiff’s claim for want of prosecution, or on the grounds of inordinate and inexcusable delay in prosecuting the claim. An issue arose in relation to the title of the plaintiff as pleaded. An application to amend the proceedings was grounded on the affidavit of Ms McShea, sworn on the 23rd October, 2018. She averred that the proper and correct title of the plaintiff is Irish Bank Resolution Corporation Ltd (in special liquidation). It was intended that this name be used in the title of the proceedings but that at the time of issue a mistake occurred as a result of a clerical error. It was her belief that the mistake was amenable to correction pursuant to O. 63, r. 1(15) and O. 28, r. 12 of the Rules of the Superior Courts. The defendant opposed the application. Mr Sherry, solicitor for the defendant, averred that the defendant would be prejudiced if the order sought was made. When the application to amend came before the High Court on 19th December, 2018, counsel for the defendant submitted that Ms McShea, in her evidence on affidavit, purported to state a legal conclusion in accordance with the wording of the relevant rule of court, rather than to advance a reason as to how the alleged clerical error had occurred. Counsel for the plaintiff submitted that the circumstances giving rise to the mistake was adequately described in the affidavit of Ms McShea and that no further evidence could be given. A discussion ensued as to adequacy of the evidence adduced, despite Ms McShea averring to the stated intention to name the plaintiff to the proceedings by its correct title. Following this exchange, and having considered the submissions of counsel, the court ruled that in the interests of justice, the motion should be adjourned and that the plaintiff be given liberty to apply to adduce additional evidence as to how the alleged mistake arose. Application was made to the court by notice of motion dated the 11th January, 2019. An affidavit was sworn by Mr Quigley, solicitor, in support of the application. There was an element of agreement between the parties. As the court had not arrived at any conclusion or decision in relation to the application to amend the title in proceedings, it was accepted that the court had an inherent jurisdiction to admit additional evidence, a jurisdiction which should be exercised in the interests of justice. The parties disagreed as to how that jurisdiction should be exercised in this case.
Held by MacGrath J that, on the balance of probabilities, he was not satisfied that it had been established that any prejudice, actual or probable, would be occasioned to the defendant should the evidence contained in Mr Quigley's affidavit be admitted. MacGrath J was satisfied that the balance of justice lay in favour of the admission of Mr Quigley's affidavit, at least on a prima facie basis.
MacGrath J held that the affidavit of Mr Quigley sworn on the 11th January, 2019 and the exhibits contained therein, explaining how the clerical error arose, should be admitted on a prima facie basis, subject to the right of the defendant to test this evidence in such manner as it may wish to so do, and subject to any further order or ruling of the court in this regard. MacGrath J held that, while the defendant had to a certain extent replied to the contents of the contested affidavit, and bearing in mind the submissions of counsel for the defendant on this aspect of the procedure, in the interest of justice the defendant should be permitted to take such steps as it may be advised in relation to the further contesting or rebutting of the contents of Mr Quigley's affidavit.
Judgment approved.
In the underlying proceedings, the plaintiff claims judgment in the sum of €291,031.33 which it is alleged is due and owing by the defendant in respect of money paid to him under a mistake. A claim is also made, inter alia, for deceit and breach of trust. The claim arises in the context of the redemption of an Atlantic bond, at the request of Liberty Asset Management. In essence, the claim against the defendant is that he received monies to which he was not entitled under a mistake of fact and following demand has refused to return it.
The proceedings were commenced by way of plenary summons on the 22nd February, 2013. An appearance was entered on behalf of the defendant on the 13th March, 2013.
The plaintiff is the successor in title to Anglo Irish Bank Corporation plc. Anglo Irish Bank Corporation delisted from the stock exchange in 2009 and became Anglo Irish Bank Corporation Ltd. By special resolution dated 3rd October, 2009, Anglo changed its name to Irish Bank Resolution Corporation Ltd, with effect from the 14th October, 2011. Pursuant to the Irish Bank Resolution Act, 2013, the Minister for Finance made a special liquidation order providing inter alia for the orderly winding down of the plaintiff bank and pursuant to that order, Mr. Ciaran Wallace and Mr. Eamonn Richardson of KPMG, were appointed joint special liquidators.
The defendant has brought an application to dismiss the plaintiff's claim for want of prosecution, or on the grounds of inordinate and inexcusable delay in prosecuting the claim.
An issue arises, however, in relation to the title of the plaintiff as pleaded. The defendant maintains that it had no dealings with the plaintiff or its predecessor in title. The plaintiff contends that by reason of an error, the title of the plaintiff is incorrectly described as Irish Bank Corporation Ltd (in special liquidation). The word ‘ Resolution’ is omitted from the name of the plaintiff as described in the proceedings. The plaintiff maintains that its true, legal and real title is Irish Bank Resolution Corporation Ltd (in special liquidation); and that as a matter of fact and law the plaintiff as named in the title does not and never did exist.
When the defendant's motion came on for hearing, an application had not yet been made by the plaintiff to amend the title of the proceedings. Counsel for the defendant indicated that any such application would be opposed. Nevertheless, the parties were anxious to progress matters and in order to utilise court time as efficiently as possible it was agreed to proceed with the hearing of the defendant's motion but that the decision of the court would be deferred pending consideration of the plaintiff's application to amend. On the 9th October, 2018, the Court directed that the application to amend should be brought on notice to the defendant.
A notice of motion issued on the 23rd October, 2018, and the application to amend was heard on the 19th December, 2018. The plaintiff presented its case and counsel for the defendant responded. It was submitted by the defendant that there was insufficient evidence before the court, such that it could conclude that a clerical error had been made. In reply, and following an exchange with the court, counsel for the plaintiff, although not conceding that it was necessary, applied for an adjournment to facilitate the filing of a supplemental affidavit, the aim of which was to describe in greater detail how the clerical error occurred.
This decision is confined to a consideration of whether, at this stage, the plaintiff should be permitted to adduce additional evidence of Mr. Brian Quigley in his affidavit sworn on the 11th January, 2019. This is not a decision on the substantive application to amend the proceedings. If the court rules that the evidence should be admitted, the defendant has reserved its position regarding any further response which it might make, or as to how it might test that evidence.
To place this application in context, it is necessary to address certain background matters. The application to amend the proceedings is grounded on the affidavit of Ms. Mairéad McShea, sworn on the 23rd October, 2018. She avers that the proper and correct title of the plaintiff is Irish Bank Resolution Corporation Limited (in special liquidation). It was intended that this name be used in the title of the proceedings but that at the time of issue a mistake occurred as a result of a clerical error. Ms. McShea averred that it was intended to include the word “ resolution”, which was not done at that time and therefore a mistake was made. It is her...
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