Irish Family Planning Association v Youth Defence

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken,Denham J.
• Judgment Date: 04 February 2004
• Neutral Citation: [2004] IESC 11
• Court: Supreme Court
• Docket Number: [2001 No. 16252P]
• Date: 04 February 2004

IRISH FAMILY PLANNING ASSOCIATION v. YOUTH DEFENCE & ORS

IRISH FAMILY PLANNING ASSOCIATION

PLAINTIFF/RESPONDENT

AND

YOUTH DEFENCE, MAURICE COLGAN, NIAMH NIC MHATHUNA, ANDPATRICK MAHONY

DEFENDANTS/APPELLANTS

[2004] IESC 11

Denham J.

Hardiman J.

McCracken J.

S.C. NO. 201 OF 2001

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Extension of time

Injunction - Whether the plaintiff was entitled to an enlargement of time for the delivery of the statement of claim on the defendants - RSC Order 63, rule 1(5) (201/2001 - Supreme Court - 4/2/2004)

Irish Family Planning Association v Youth Defence - [2004] 1 IR 374 - [2004] 2 ILRM 19

Facts: On 8 August 1999 the plaintiff obtained an interim injunction restraining the defendants from trespassing and subsequently issued a plenary summons claiming damages for trespass and an injunction against the defendants. The plaintiff obtained an interlocutory injunction on 11 March 1999 and subsequently issued a motion for attachment and committal for an alleged breach of that injunction. A memorandum of appearance to the notice of motion was entered on 18 August 1999. The High Court made an order pursuant to the notice of motion and accordingly the second named defendant successfully appealed that order to the Supreme Court. He represented himself in those proceedings. The second named defendant then sought to discharge the order of attachment and committal made by the High Court. However an issue arose regarding the matter of a solicitor being on record for the defendant and consequently a notice of discharge of solicitor was filed. The second named defendant subsequently brought a motion in the High court to have the injunction discharged and he reappointed his solicitor. The High Court ordered that the injunction be discharged. On 19 February, 2001 the plaintiff issued a notice of motion in which it sought an order pursuant to Order 63 rule 1(5) of the Rules of the Superior Courts enlarging the time for the delivery of the statement of claim on the defendants. The Master of the High Court refused to grant that order and accordingly the plaintiff appealed to the High Court and the time was extended by one week. The plaintiff sought to explain the failure to serve the statement of claim within the prescribed time limit by stating that it was unclear how the statement of claim should be delivered given the confusion over the representation of the second and third named defendants. The defendants appealed from the decision of the High Court.

Held by the Supreme Court (Denham, Hardiman, McCracken JJ) in allowing the appeal;

1. That the relevant portion of the plenary summons was the claim for damages for trespass. However the statement of claim contained no allegation against the second and third named defendants. The fact that there were powers in the rules to enable the plaintiff to amend the statement of claim was not sufficient to cure that difficulty. That was so even though there was no appearance entered on behalf of the respondent and accordingly pursuant to Order 28, rule 2 such an amendment could have been made without motion.

2. That when an application is made for an extension of time within which to serve a statement of claim, a draft statement of claim should be exhibited. That statement of claim should contain the material facts upon which the plaintiff relies to establish a cause of action. If that statement of claim discloses no cause of action against the defendants then the court has and should exercise an inherent jurisdiction to regulate its proceedings. In so exercising its jurisdiction a court may not order the extension of time for the service of a document which is defective on its face.

3. Obiter That in the present case the defendants simply opposed an application by the plaintiff for a discretionary remedy which it was open to the court to grant and accordingly the plaintiff was obliged to place before the court such matters as it thought fit in order to permit the court to decide whether the order ought to be granted.

Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 499 and Rainsford v The Mayor Alderman and Burgesses of the City of Limerick [1995] 2 ILRM 561 distinguished.

Reporter: L. O'S.

Citations:

HUGHES V HUGHES 1990 NI 295

PRIMOR PLC V STOKES KENNEDY CROWLEY 1996 2 IR 459

O'DOMHNAILL V MERRICK 1984 IR 151

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561

RSC O.63 r1(5)

RSC O.28 r2

RSC O.28 r4

HYTRAC CONVEYORS V CONVEYORS INTL 1982 3 AER 415

DALY V LIMERICK CORPORATION UNREP SUPREME 7.3.2002 2002/6/1336 (EX TEMPORE)

SMITH V SECRETARY OF STATE FOR THE ENVIRONMENT THE TIMES 6.7.1987

RATNAM V CUMARASAMY 1965 1 WLR 8

TOAL V DUIGNAN (NO 2) 1991 ILRM 140

1 4th day of February,2004by Denham J.

Denham J.

1. Appeal

2 This is an appeal by Maurice Colgan and Niamh Nic Mhathuna, the second and third named defendants, hereinafter referred to as the defendants, from the judgment and order of the High Court (Smyth J.) delivered on25 ^th June, 2001 and perfected on 3 ^rd July, 2002 which enlarged the time for the delivery of the statement of claim on the defendants and set aside the order made by the Deputy Master of the High Court on the 3 ^rd May, 2001. The Irish Family Planning Association is the plaintiff and is hereinafter referred to as theplaintiff.

2. Procedural Issue

3 The appeal raises an issue on procedure. Benedict Ó Floinn, B.L., who appeared on behalf of the defendants, submitted that there was no issue of fact in the appeal, that at issue was a question of law. Counsel submitted that when an applicant in a motion such as this comes before any court there is an onus on that applicant to place on affidavit an explanation of why the jurisdiction sought to be invoked had not been exercised, i.e. in this case why thestatement of claim had not been delivered within time, and that the applicant must put before the court sufficient material to justify the invocation of the jurisdiction. On that legal issue he informed the court that he had searched in the Rules, Courts Acts and cases but that he could not findany explicit statement of the law, other than Hughes v.Hughes [1990] N.I.295 which was the closest precedent.

4 On the other hand, Colman Fitzgerald, S.C., counsel for the plaintiff, submitted that the High Court judgment was correct, that the test to be applied is as set out in Primor Plc v. Stokes KennedyCrowley [1996] 2 I.R. 459, and if not then O'Domhnaillv. Merrick [1984] I.R. 151, applies, as does Rainsfordv. Limerick Corporation [1995] 2 I.L.R.M. 561.

3. Facts

5 Thus the facts of the case are not in issue and are as follows. On the8 ^th March, 1999, the plaintiff obtained an interim injunction against the defendants (amongst others). On the 9 ^th March, 1999, the plenary summons was issued, the parties being those named in the title of this case. The claim in the plenary summons is that:

"The Plaintiff's Claim is as against the defendants and each of them, their servants or agents and in particular as against the second and third named defendants as one of and as representing the first named defendants and is for:"

(a) Damages for trespass,

(b) An injunction,"

6 On the 11 ^th March, 1999 the plaintiff obtained an interlocutory injunction against the defendants restraining them from, pending the trial of the action, trespassing on the plaintiff's property, watching or besetting or carrying on any demonstration or manifestation near or adjacent to the named premises, obstructing or attempting to obstruct or harass persons going into and leaving such clinics, and intimidating or molesting or otherwise interfering with Tony O'Brien and/or any other member of the association. No further step was taken until a motion for attachment and committal was brought by the plaintiff before the High Court onthe 11 ^th August, 1999. A Memorandum of Appearance was entered on the 18 ^th August, 1999, by a solicitor for the defendants. The form of the appearance was amended so that it purported to be an appearance to the notice of motion (the words "Originating Summons" having a line placed through them). On the 18 ^th August, 1999, the High Court made an order, the defendants undertaking to abide by the terms of the order of the 11 ^th March, 1999. Maurice Colgan appealed the order of the 18 ^th August to the Supreme Court. He appeared in the supreme Court in person. His solicitor had not come off record. Apparently his solicitor took the view that she represented him only on the motion. However, no formal order was sought discharging her. Mr. Colgan succeeded in his appeal to the Supreme Court on the16 ^th October, 2000. He then sought to discharge the order of attachment of the High Court. The matter of the solicitor being on record then arose. In November, 2000 a notice of discharge of solicitor was filed. Mr. Colgan then brought a motion in the High Court to have the injunction discharged. On the 29 ^th January, 2001, the solicitor was reappointed as solicitor for Mr. Colgan. On the12 ^th February, 2001, the High Court ordered that the injunction of the 1l ^th March, 1999 as against Mr. Colgan be discharged, which order was not appealed.

7 By notice of motion dated the 19 ^th February, 2001, the plaintiff sought an order pursuant to O. 63, r. 1(5) of the Rules of the Superior Courts enlarging the time for the delivery of the statement of claim on the defendants. On the 3 ^rd May, 2001, the Deputy Master of the High Court refused the application. The plaintiff appealed to the High Court. On the 25 ^th June, 2001, the High Court determined that the order of the Deputy Master be set aside and time was extended for the service of the statement of claim by one week. Against that order the defendants filed an appeal on the 20 ^th July,2001.

4. High Court

8 There was no written judgment of the High Court. Counsel for the plaintiff and defendants drafted separate notes of the judgment. There was...