Kavanagh v Fenty

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 05 July 2018
• Neutral Citation: [2018] IEHC 404
• Docket Number: [RECORD NO. 2015 10424 P]
• Court: High Court
• Date: 05 July 2018

[2018] IEHC 404

THE HIGH COURT

O'Regan J.

[RECORD NO. 2015 10424 P]

BETWEEN

DANA KAVANAGH

PLAINTIFF

AND

ROBYN FENTY, A.K.A. RIHANNA

DEFENDANT

Personal injury summons – Invalid service – O. 9, r. 15 of the Rules of the Superior Courts – Defendant seeking to set aside the purported service on the defendant of the notice of the summons – Whether the purported service was invalid and ineffective

Facts: The plaintiff, Ms Kavanagh, on the 29th June 2015, secured liberty to issue and serve a notice of a personal injury summons on the defendant, Ms Fenty, outside the jurisdiction at the defendant's New York City address. Two affidavits of service were filed on behalf of the plaintiff by Mr Bouri, summons server. The first such affidavit stated that, on the 18th November 2015, the summons server served the personal injury summons on a suitable aged person, being Mr Doe, concierge, at the defendant's dwelling house. He mailed a copy of same in a post-paid envelope properly addressed to the defendant, on the 18th November 2015, by certified and first class mail. A description of the concierge was given, as it appeared that the concierge refused to give a name. The second affidavit of service of Mr Bouri stated that, on the 27th October 2016, he served the personal injury summons on a suitable aged person, being Mr Doe, at the defendant's dwelling house and, on the 18th November 2015, mailed same by certified and first class mail. Again, it appeared that the concierge refused to give a name. However, the description in the affidavits was such that it was clear that the second concierge was not one and the same person as the first concierge. The defendant applied to the High Court, by way of notice of motion dated the 2nd May 2017, pursuant to O. 12, r. 26 of the Rules of the Superior Court, to set aside the purported service on the defendant of the notice of the summons on the grounds that the purported service was invalid and ineffective. The plaintiff, without formal application, indicated that she was looking for an order deeming service good.

Held by O'Regan J that the following matters were persuasive in considering the granting of relief under Order 9 rule 15: 1) in Heffernan v Ryan [2005] 1 IR 32, Herbert J stated that the court might regard as sufficient evidence varied with the facts of each individual case; 2) the defendant had not disputed the existence of concierges in accordance with the descriptions in each of the affidavits of service of Mr Bouri; 3) Ms Francus, the manager responsible for opening and reviewing any mail, packages or deliveries for the defendant sent to her at her home address, did not deny receipt of the documents in November 2015; 4) effecting personal service at the defendant's residence on someone who resides there, was not, as a matter of practicality, available to the plaintiff; 5) the defendant challenged the plaintiff's assertion of posting but not of attending on a number of occasions in October (presumably 2016).

O'Regan J held that there were just grounds to declare that the service actually effected was sufficient pursuant to O. 9, r. 15 of the Rules of the Superior Courts.

Application refused.

JUDGMENT of Ms. Justice O'Regan delivered on Thursday the 5th day of July, 2018

Issues

1 The issue before the court is an application on behalf of the defendant, brought by way of notice of motion dated the 2nd May 2017, pursuant to O. 12, r. 26 of the Rules of the Superior Court, to set aside the purported service on the defendant of the notice of the summons on the grounds that the purported service was invalid and ineffective.

2 At the hearing of this motion the plaintiff, without formal application, indicated that she was looking for an order deeming service good. The defendant was prepared to deal with such application on behalf of the plaintiff given that both applications would be grounded upon the same circumstances.

Proceedings

3 O. 12, r. 26 of the Rules of the Superior Courts provides: -

'A defendant before appearing shall be at liberty to serve a notice of motion to set aside the service upon him of the summons or of notice of the summons, or to discharge the order authorising such service.'

4 On the 29th June 2015 the intended plaintiff secured liberty to issue and serve a notice of a personal injury summons on the intended defendant outside the jurisdiction at the intended defendant's New York City address.

5 In the events the personal injury summons issued on the 14th December 2015.

6 Prior to the defendant maintaining the within application two affidavits of service were filed on behalf of the plaintiff by one Mohammed Bouri, summons server. The first such affidavit states that, on the 18th November 2015, the summons server served the within personal injury summons on a suitable aged person, being John Doe, concierge, at the defendant's dwelling house. He mailed a copy of same in a post-paid envelope properly addressed to the defendant, on the 18th November 2015, by certified and first class mail. A description of the concierge was given, as it appears that the concierge refused to give a name. The second affidavit of service of Mr. Bouri states that, on the 27th October 2016, he served the personal injury summons on a suitable aged person, being John Doe, at the defendant's dwelling house and, on the 18th November 2015, mailed same by certified and first class mail. Again, it appears that the concierge refused to give a name. However, the description in the affidavits is such that it is clear that the second concierge was not one and the same person as the first concierge.

7 Jonathan Hoffman, US lawyer, swore an affidavit of law on the 24th May 2017 and subsequently swore an updated affidavit on the 14th March 2018. These affidavits are relevant to the within proceedings for the purposes of setting out the manner of service of summonses within the US and in particular within New York, by reason of The Hague Convention. Under Article 10 of The Hague Convention it is provided that provided the destination State does not object, the Convention shall not interfere with the freedom to send judicial documents by postal channels directly to the person abroad. The parties agreed that because of and in accordance with The Hague Convention, in order to establish proper service of the notice of summons on the within defendant, the plaintiff must show compliance with either :-

(1) Federal rules which require delivery to the individual personally, or by leaving a copy at the individual's dwelling or usual place of abode, with someone of suitable age and discretion who resides there, or by delivering a copy of same to an agent authorised by appointment or by law to receive service of process, or,

(2) Under New York rules which require delivery of the summons to a person of suitable age and discretion at the actual place of abode of the person to be served and by mailing within 20 days of each other, the summons to the person to be served at his or her last known residence.

8 The plaintiff contends that service was effected in fact under federal law and New York law.

9 Part of the affidavit evidence put before the court on behalf of the defendant, to support the application in the notice of motion, was an affidavit of Sarah Francus bearing date of the 14th March 2018 wherein at para. 2 she states that in her role as manager she is responsible for opening and reviewing any mail, packages or deliveries for the defendant sent to her at her home address and she has held this role since 2014. She avers at para. 3 of her affidavit that only one set of such papers were received and those were delivered by hand, and not by mail, and received by the concierge on or about the 27th October 2016.

10 In resisting the application, on the part of the defendant, the plaintiff has filed an affidavit of Jeffrey Cohen, president of Precision One, Inc. being the relevant document server company for which Mr. Bouri was acting, bearing date the 5th January 2018. At paras. 8 and 9 of his affidavit he says that service was effected on or about the 11th August 2015. At para. 12 he refers to the order secured in Ireland for Noonan J. affording liberty to issue and serve the personal injury summons as being the 29th June 2017 and then refers to an affidavit of Mr. Bouri to the effect that on the 27th October 2017, he effected service of the relevant documents. At para. 13 of Mr. Cohen's affidavit he refers to three attempts at service by Mr. Bouri all in October 2017. At para. 12 he refers to the service by prepaid mail by Mr. Bouri which he alleges occurred on the 28th October 2017. This assertion is again repeated at para. 16 of his affidavit.

11 Mr. Bouri also swore an affidavit in these proceedings, bearing date the 5th January 2018, to the effect that he served the summons on the 11th August 2015. However, in the course of this affidavit he refers to a first class prepaid mail envelope and does not at any point suggest he served by certified post. Reference is made at para. 5 of this affidavit to an order of Noonan J. of the 29th June 2017 and to service of the documentation on the 27th October 2017. At para. 6 he refers to attempts at service on three separate occasions in October 2017. At para. 7 he suggests that service was effected, on the 28th October 2017, by first-class prepaid mailing to the defendants' address. There is incorporated in para. 7 of Mr. Bouri's affidavit, but hand crossed out, the following statement contained in brackets: -

'If Mr. Bouri can say from where and when he posted the envelope or has a receipt of such postage he should aver to this exhibit proof of postage.'

At para. 8 he refers to a clerical error in his affidavit, of the 6th November 2016, to the effect that he should have incorporated the date of the 28th October 2016 as being the date upon which he posted certain documents (rather than...