Joseph Kearns v Eric Evenson

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] IEHC 790
• Docket Number: [2014/4948 P]
• Court: High Court

Between

Joseph Kearns

Plaintiff

and

Eric Evenson

Defendant

[2021] IEHC 790

[2014/4948 P]

THE HIGH COURT

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 15th day of December, 2021.

Introduction

1 In this application, the plaintiff seeks an order pursuant to O.8 of the Rules of the Superior Courts (‘RSC’) renewing the plenary summons, issued on 30th May, 2014, for a period of three months from the date of the order. In the event of this order being granted, the plaintiff seeks an order pursuant to O.11, r.1(e) and/or O.11, r.1(b) granting him liberty to serve notice of the proceedings on the defendant, a Canadian national resident in the Isle of Man.

2 As we shall see, the proceedings have had a somewhat tortuous history to date, and have involved a number of applications to this Court. The present application is made as a result of a judgment of this Court of 14th May, 2020, reported at [2020] IEHC 257, in which I acceded to an application by the defendant pursuant to O.12, r.26 of the RSC for an order setting aside service of the notice of summons in the proceedings on the defendant, and for an order discharging the order of Eagar J of 2nd July, 2018 granting liberty to the plaintiff to serve notice of the proceedings on the defendant out of the jurisdiction. That judgment should be read in conjunction with the present judgment.

3 When the defendant's application pursuant to O.12, r.26 came before this Court in February 2020, the defendant also sought a stay of the proceedings “pursuant to the inherent jurisdiction of this Honourable Court and on the grounds of forum non-conveniens”. Complex arguments concerning this issue were made by both sides over the course of three days. In the event, it was not necessary to decide the issue, as my finding that the order of Eagar J should be set aside on the basis that, at the time that order was made, the summons had already expired, was sufficient to decide the application.

4 The present application issued on 19th June, 2020, and was returnable for 14th July, 2020. Unfortunately, the matter did not proceed on that date, and was ultimately heard by me on 18th November, 2020. Both sides proffered very detailed written submissions in addition to the submissions made by counsel in court on the hearing date.

5 In the course of preparing a judgment subsequent to that hearing, the court became aware that the Court of Appeal had delivered judgment in Sheila Murphy v. Health Service Executive [2021] IECA 3 on 15th January, 2021. In the Murphy judgment, the Court of Appeal (Haughton J) conducted an extensive analysis of O.8 and the case law relating to it, including in particular two recent decisions of the High Court which had featured prominently in the written and oral submissions of both parties at the hearing before me. In addition, there had been a number of decisions of the High Court in relation to O.8 delivered around the time of, or subsequent to, the hearing before me, which the parties did not address. As these cases, and in particular the Murphy judgment, could have profound implications for the submissions and positions adopted by the parties, I convened a hearing of the matter in which I explained the situation to the parties and suggested that they might wish to make further submissions. Both parties accepted this invitation, and made further detailed written submissions on 26th February, 2021.

6 I understand that, in accordance with a suggestion made by me in my judgment of 14th May, 2020, it is the parties' wish that, in the event that I accede to the plaintiff's present application, I might then consider the jurisdictional objections to the proceedings made on behalf of the defendant to this Court in February 2020, perhaps after some further brief submissions. Given that such a course would not be necessary in the event that I refuse the plaintiff's present application, it is understood by the parties that I will deal only with the present application in this judgment, after which the parties may consider their respective positions.

Factual background and chronology

7 In order to consider the terms of O.8 in relation to the relevant facts, it is necessary to set out in some detail the background to the matter and the way in which events have unfolded in the litigation. While this is addressed at paras. 5 to 11 of my previous judgment, the parties in their respective submissions each set out a chronology of relevant events for the court, which is drawn from the statement of claim served by the plaintiff on two occasions, and various affidavits sworn by the parties in relation to various motions at different times.

8 The statement of claim alleges that the defendant “agreed to receive and hold…certain funds…as trustee to the Plaintiff in accordance with the Plaintiff's directions from time to time” [para. 3]. These were funds amounting to €965,000, paid on various dates in 2011 and 2012. While no defence has yet been delivered by the defendant pending his challenge to the present application – and if that challenge is unsuccessful, to the jurisdiction of this Court to entertain the matter – it is clear from the defendant's affidavits to date that he does not accept that he received any monies from the plaintiff, or that he invested same on the plaintiff's behalf [see para. 13 defendant's affidavit sworn 25th January, 2019].

9 Paragraphs 4 and 5 of the statement of claim are as follows:-

“4. By “Agreement of Understanding” dated 15th July 2011 signed by the Defendant, the Defendant acknowledged that the monies received from the Callary Pension Fund would be applied as part of an investment in a property at Strandgaten 56, Bergen, Norway. The Defendant acknowledged that the pension fund required to be protected from illiquidity and agreed to return all pension monies to the Pension Fund on demand by the Plaintiff. To this end, the Defendant executed a guarantee forming part of the same document guaranteeing repayment of the sum of €490,000.00 investment by the Callary Pension Fund from the date of investment.

5. The sum of €490,000.00 in respect of the self-administered Pension Funds was transferred to the Defendant and the Defendant guaranteed repayment of the said sum of €490,000.00 and agreed to return all pension monies to the Callary Pension Fund on demand made by the Plaintiff. The terms of this obligation was [sic] recited in an agreement of understanding dated 15th July 2011 and a Guarantee dated 13th December 2012.”

10 The defendant contends that these two documents — “the agreement of understanding” and the “guarantee” – are forgeries. This has particular significance for the argument on whether or not the Irish Courts have jurisdiction, as the guarantee has a jurisdiction clause providing that the alleged guarantee agreement “shall be governed by the laws of the Republic of Ireland, and by the Irish Courts…” [Clause 5]. As explained above, the jurisdiction of this Court only falls to be examined if I accede to the plaintiff's present application, although it should be said that the consistent position of the defendant has been that he denies that the Irish Courts have jurisdiction in the matter.

11 Adapting the chronologies presented by the parties, the key events in the litigation to date may be summarised as follows:-

• • The plaintiff alleges that three payments of €50,000, €275,000 and €150,000 were made on 18th July, 2011, 9th March, 2012 and 26th March, 2012 respectively;

• • the plaintiff further alleges that a “self-administered pension transfer of funds” was made on 6th December, 2011 of €490,000;

• • the plaintiff therefore alleges that a total sum of €965,000 was paid to the defendant “to receive and hold…as trustee to the Plaintiff and [to] apply them in accordance with the Plaintiff's direction from time to time…” [para. 3 statement of claim];

• • the documents on foot of which the plaintiff sues were the “agreement of understanding” and the “guarantee” which were allegedly executed on 14th July, 2011 and 13th December, 2012 respectively;

• • by letter of 14th April, 2014, the plaintiff demanded payment from the defendant of “monies acquired by [the defendant]”, and the demand was made on foot of the alleged documents referred to above;

• • the plaintiff responded to the foregoing letter through his Isle of Man solicitors by letter of 12th May, 2014, in the course of which it was stated that the documents relied upon were “fabrications”;

• • the plaintiff issued a plenary summons on 30th May, 2014. The summons included an endorsement under the Brussels Regulation 44/2001 on the plenary summons, notwithstanding that the defendant's residence is in the Isle of Man, a jurisdiction not covered by the Brussels Regulation;

• • on 21st July, 2014, the plaintiff brought an application to amend the plenary summons to remove the Brussels Regulation endorsement in conjunction with an application for leave to serve notice of the amended plenary summons out of the jurisdiction;

• • on 21st July, 2014, leave to amend the plenary summons and to serve notice of the amended plenary summons on the defendant was granted by the High Court (Hedigan J);

• • the plaintiff did not amend the plenary summons within the time specified and brought an application to extend the time to amend, which application was granted by an order of this Court (White J) on 20th October, 2014;

• • the defendant states that the plaintiff “effected service of the notice through The Hague Convention channels, and it appears that the request for service was made on 9 March, 2015…” [affidavit Eric Evenson sworn 10th July, 2020 in the present proceedings at para. 5.9];

• • on 22nd July, 2016, evidently in response to a motion by the plaintiff for judgment in default of appearance, the defendant's Irish solicitors entered a conditional appearance in order to contest the jurisdiction of the Irish Courts;

• •...