Joseph Kearns v Eric Evenson

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 14 May 2020
• Neutral Citation: [2020] IEHC 257
• Docket Number: [No. 2014/4948 P.]
• Court: High Court
• Date: 14 May 2020

BETWEEN

JOSEPH KEARNS

PLAINTIFF

AND

ERIC EVENSON

DEFENDANT

[2020] IEHC 257

Mark Sanfey J.

[No. 2014/4948 P.]

THE HIGH COURT

Notice of summons – Service – Discharge – Defendant seeking an order setting aside service of the notice of summons on the defendant and an order discharging the order granting the plaintiff liberty to serve notice of the proceedings on the defendant out of the jurisdiction – Whether the objection to service made by the defendant was well founded

Facts: The plaintiff, Mr Kearns, issued proceedings against the defendant, Mr Evenson, a Canadian citizen resident in the Isle of Man, by way of a plenary summons dated 30th May, 2014. The plenary summons sought, inter alia, judgment against the defendant in the sum of €965,000, orders requiring the defendant to disclose the whereabouts of funds allegedly held by him or assets acquired by him as a trustee, certain reliefs in respect of monies allegedly received by the defendant in respect of a named pension fund, and certain other reliefs in relation to a property in County Roscommon. The defendant applied to the High Court pursuant to Ord. 12 r. 26 of the Rules of the Superior Courts for an order setting aside service of the notice of summons in the proceedings on the defendant, and an order discharging the order of Eagar J of 2nd July, 2018 granting the plaintiff liberty to serve notice of the proceedings on the defendant out of the jurisdiction. In the alternative, the defendant sought an order staying the proceedings, “pursuant to the inherent jurisdiction of this Honourable Court and on the grounds of forum non conveniens”.

Held by Sanfey J that when the order of the court of 2nd July, 2018 was made, the plenary summons had by that stage ceased to be in force according to the Rules of the Superior Courts. He held that the objection to service made by the defendant was well founded, and that the order for service should be set aside. He did not consider that Ord. 124 was an appropriate vehicle for bypassing a requirement for an application to court to renew the summons. He was satisfied that the order of the High Court of 2nd July, 2018 should not have been made and could not be allowed to stand. He held that the plaintiff could not proceed upon the plenary summons unless valid service in accordance with an order of this court was effected. He held that unless an application was made by the plaintiff for renewal of the summons, the proceedings could go no further.

Sanfey J held that he would grant the relief sought pursuant to Ord. 12 r. 26.

Application granted.

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 14th day of May 2020

Introduction

1 This judgment concerns an application by the defendant pursuant to Ord. 12 r.26 of the Rules of the Superior Courts for an order setting aside service of the notice of summons in the proceedings on the defendant, and an order discharging the order of Eagar J. of 2nd July, 2018 granting the plaintiff liberty to serve notice of the proceedings on the defendant out of the jurisdiction.

2 In the alternative, the defendant seeks an order staying the proceedings, “pursuant to the inherent jurisdiction of this Honourable Court and on the grounds of forum non conveniens”.

3 Specifically, this judgment addresses what counsel for the defendant describes as a “threshold issue”, i.e. an issue which, if resolved in favour of the defendant, is determinative of the application and requires no further consideration by this court of the complex arguments in relation to jurisdiction raised by both sides.

4 In order to understand the basis for the defendant's application, it is necessary to consider the progress of the litigation from its inception to date.

The proceedings

5 The plaintiff issued proceedings against the defendant by way of a plenary summons dated 30th May, 2014. The defendant is a Canadian citizen who is resident in the Isle of Man. The plenary summons seeks, inter alia, judgment against the defendant in the sum of €965,000, orders requiring the defendant to disclose the whereabouts of funds allegedly held by him or assets acquired by him as a trustee, certain reliefs in respect of monies allegedly received by the defendant in respect of a named pension fund, and certain other reliefs in relation to a property in County Roscommon.

6 An application was made by the plaintiff to this Court for service out of the jurisdiction under Ord.11. An order to this effect was made by Hedigan J. on 21st July, 2014. Ultimately, notice of the summons was served on the defendant in April 2015. A memorandum of conditional appearance was filed on behalf of the defendant on 22nd July, 2016. This appearance was expressed to be “entered strictly without prejudice to the objections of the … Defendant to the jurisdiction of this Honourable Court to entertain the within proceedings against him, and, further, is entered strictly without prejudice to any application to contest jurisdiction which may subsequently be brought”.

7 The appearance required delivery of a statement of claim, and the plaintiff delivered its statement of claim on 27th July, 2016. The defendant then issued an application on 3rd October, 2016 to set aside the order for service out of the jurisdiction of Hedigan J. This application was heard on 13th April, 2018 by Ní Raifeartaigh J., who gave an ex tempore judgment on 24th April, 2018 discharging the order of Hedigan J. and setting aside the service on the defendant.

8 I have had the benefit of reading the transcript of the judgment of Ní Raifeartaigh J. It is clear that the basis of her decision was that she did not consider that “the Court was sufficiently informed of relevant facts in order to have enough information before it to make an informed decision about whether leave should have been given”. The court was setting aside the order of Hedigan J. “on the ground of, essentially, lack of candour”. The judge made further comments on other aspects of the defendant's application which she described as “obiter”.

9 The order of Hedigan J. was discharged by order of 8th May, 2018, and the costs of the motion were awarded to the defendant. By an order of 5th June, 2018 however, it was ordered that execution on foot of that costs order “be further stayed pending the determination of a fresh application being made”. The stay was to expire in the event that such an application was not made within 28 days.

10 In the event, an affidavit was sworn by the plaintiffs on 30th June, 2018 addressing the deficiencies identified by Ní Raifeartaigh J., and an application for service out of the jurisdiction was made on 2nd July, 2018 to Eagar J., who ordered that pursuant to Ord. 11 r.1(e) of the Rules of the Superior Courts, the plaintiff be at liberty to serve notice of the proceedings on the defendant at his residence in the Isle of Man.

11 Service was duly effected in accordance with the order, and a memorandum of conditional appearance in terms identical to the previous memorandum was entered on behalf of the defendant on 26th October, 2018. A statement of claim in terms identical to that delivered on 27th July, 2016 was delivered by the plaintiff on 16th November, 2018, and the present application issued on 6th February, 2019.

The hearing of the application

12 The hearing of the motion took place over three days, with the motion papers and the papers in relation to the previous application before Eagar J. being opened to the court. I do not require, for the purpose of this judgment, to set out the facts of the matter, or the submissions of the parties, in any detail. It is sufficient to say that the facts are quite complex, and there was an issue between the parties as to whether a preliminary hearing in respect of the conflict of facts in the affidavits would be necessary before a decision could be made on the defendant's application.

13 Ms. Anna Shanley BL for the defendant submitted that, for a number of reasons, the trial of a preliminary issue – which concerned the validity or authenticity of a jurisdiction clause in an agreement which the defendant alleged was forged – was inappropriate. It was argued that the plaintiff had not established a good arguable case in its statement of claim, and that this was fatal to the validity of the service ordered by Eagar J. It was submitted that, in any event, Ireland was not a forum conveniens in all the circumstances.

14 Mr. Remy Farrell SC and Mr. Paul Fogarty BL appeared for the plaintiff. While it is not necessary for present purposes to consider the substance of the arguments, it should be said that Mr. Farrell strongly resisted the application and the foregoing arguments on behalf of the defendant. Detailed written submissions were made by both sides in relation to these issues.

15 However, there was another issue which Ms. Shanley canvassed in her written submissions, and which she described as a “threshold issue”. She submitted that, once the order of Ní Raifeartaigh J. was made setting aside the order for service of the proceedings by Hedigan J., the plenary summons ceased to be in force for the purpose of Ord.8 of the Rules of the Superior Courts, and no application had been made to this Court for renewal of the summons. The order for service out of the jurisdiction by Eagar J., therefore, was made in relation to a summons which was not in force at the time, or which had “lapsed”, the terminology used by Costello J. (as he then was) in Cavern Systems Dublin Limited v. Clontarf Residents Association, unreported, High Court, 28th February 1983. Ms. Shanley submitted that an order for service out of the jurisdiction could not be made in relation to a summons which was not in force according to the Rules of the Superior Courts.

16 Some complaint was made by counsel for the plaintiff that this issue had not been flagged in advance of the hearing. The issue was not adverted to in the...