Kelleher v Switzer & Company Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Lavan |
| Judgment Date | 04 November 1992 |
| Neutral Citation | 1993 WJSC-HC 2342 |
| Docket Number | 07564 |
| Court | High Court |
| Date | 04 November 1992 |
1993 WJSC-HC 2342
THE HIGH COURT
AND
Citations:
EIRE CONTINENTAL TRADING CO LTD V CLONMEL FOODS LTD 1955 IR 170
CCR 1950 O.5 r6
COURTS OF JUSTICE ACT 1936 S21(1)
COURTS OF JUSTICE ACT 1936 S21(2)
CCR O.5 r10
CCR O.5 r9
COURTS OF JUSTICE ACT 1924 S48(1)
COURTS OF JUSTICE ACT 1936 S26
REILLY V MAYNE 1 CR & DIX CC 433
CARLETON THE JURISDICTION & PROCEDURE OF THE COUNTY COURTS IN IRELAND 2ED 1891 744
DE SMITH JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 4ED 1980 422
CCR O.5 r6(a)
COURTS OF JUSTICE ACT 1936 S21
RSC (1905) O.28 r1
WYLIE JUDICATURE ACT (1906 ED) 545, 462
COLLETTE V GOODE 7 CH D 842
MOZELEY V COWIE 26 WR 854
WARD V SHARP 32 WR 584
AUSTRALIAN SN CO V SMITH 14 AC 320
CROPPER V SMITH 26 CH D 700
EATON V STORER 22 CH D 91
CLARKE V YORKE 21 WR 62
GRIFFITH V LONDON & ST CD 13 QBD 259
CCR 0.57
JUDICATURE ACT 1877
LYONS V TIPPO 67 ILTR 5
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 3RD SCHED
COURTS OF JUSTICE ACT 1936 S69
COURTS OF JUSTICE ACT 1924 S66
COURTS OF JUSTICE ACT 1936 S70
RSC (1905) O.28 r12
RSC (1905) O.28 r2
RSC (1905) O. 28 r3
RSC (1905) O.28 r6
RSC (1905) O.28 r11
RSC (1905) O.28
COURTS ACT 1981
COURTS OF JUSTICE ACT 1924 S48
COURTS OF QUARTER SESSION IN IRELAND ACT 1851
OFFICERS & COURTS OF QUARTER SESSION & CIVIL BILL COURTS IN IRELAND ACT 1877
Synopsis:
CIRCUIT COURT
Jurisdiction
Civil bill - Claim - Indorsement - Amendment - Power - Exercise - Claim for unliquidated damages - Indorsement failed to disclose jurisdiction - Amendment sought to insert claim to maximum damages within jurisdiction of the court - Circuit Rules, 1950 (S.I. No. 179), order 5, rr. 6, 10; order 57 - Courts of Justice Act, 1936, s. 21 - (Appeal from the Circuit Court - Lavan J. - 4/11/92)
|Kelleher v. Switzer & Co. Ltd.|
PRACTICE
Pleadings
Amendment - Civil bill - Indorsement - Jurisdiction - Disclosure - Failure - Whether Circuit Court has jurisdiction to allow appropriate amendment - (Appeal from the Circuit Court - Lavan J. - 4/11/92)
|Kelleher v. Switzer & Co. Ltd.|
The first matter I have to deal with is a question relating to granting leave to the Defendant/Appellant for an extention of time to appeal against the Order of The Learned President of the Circuit Court dated the 4th May 1992. I am satisfied that the Defendant had the necessary intention to comply with the test set out in Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. 1955 I.R. 170. Therefore I will grant an extension of time for the bringing of this Appeal.
The second matter at issue is whether the Indorsement of Claim contained in the Civil Bill, which runs to 3 full pages of Pleadings and particulars and which did not conclude with the words "and the Plaintiff claims £15,000 and Costs" was thereby defective and whether the Learned President had jurisdiction to amend the Civil Bill to include those words.
The Defendant/Appellant claims that the failure to include those words goes to the root of the Jurisdiction of the Court.
The Plaintiff's proceedings were issued by Civil Bill dated 12th August 1991. The said Civil Bill failed to show jurisdiction on the face thereof due to the aforesaid omission and a defence was entered to the matter on the 17th January 1992 pleading lack of jurisdiction.
By Motion dated the 4th May 1992 the Plaintiff applied to the Court to amend the Civil Bill. The Motion was contested on that date by the Defendant/Appellant on the grounds of lack of jurisdiction and the absence of power to correct an irregularity going to the root of its jurisdiction. The Court declined to accept those submissions and made an Order in the terms of the Notice of Motion amending the Indorsement.
The Defendant/Appellant has appealed both the procedural and substantive Orders of the Circuit Court on the grounds that the Court had no jurisdiction in the matter and also on the merits. The Application before me is for the determination of the procedural point in respect of the jurisdiction question. The jurisdiction of the Circuit Court at the time of the issue of the Civil Bill herein was £15,000 (see the Courts of Justice Act1924as amended by the Courts Act1981).
The Defendant/Appellant relied firstly on Order 5, Rule 6 of the Circuit Court Rules ( S.I. No. 179 of 1950) which provides that every Civil Bill shall be signed by the Plaintiff or by his Solicitor and shall be indorsed with particulars of the Plaintiff's demand:-
(a) stating the nature, extent and grounds thereof and the relief sought and, where it is a money claim, the amount thereof and the rate and amount of interest (if any) claimed. If, in the first instance, the plaintiff desires an account taken, that fact shall be stated, together with the specific amount (if any) which the plaintiff claims subject to that account;
The Defendant/Appellant secondly relied upon Section 21(1) and (2) of The Courts of Justice Act, No. 48 of 1936, which provides as follows:-
21 - (1) Where an action is brought in the Circuit Court which that Court has not jurisdiction to hear and determine, the judge shall, on the application of the defendant or one of the defendants or on his own motion, as soon as such want of jurisdiction becomes apparent (unless such consent may be sufficient to cure such want of jurisdiction is duly lodged within such time as the judge shall allow) order the action to be struck out and may, if he thinks proper, make an order awarding to the defendant such costs as the Court could have awarded if it had had jurisdiction to hear and determine such action and the plaintiff either had not appeared or had appeared and failed to prove his demand.
-(2) Whenever a judge of the Circuit Court is required by the foregoing sub-section of this section to order an action to be struck out, such judge may, if he so thinks proper having regard to all the circumstances of the case, in lieu of making such order as aforesaid, transfer such action to the High Court and make such order as to the costs of the proceedings theretofore had in the Circuit Court as shall appear to him to be proper.
In the Defendant/Appellant's submission this gives the Court two options only, firstly, to order the action to be struck out and award costs to the Defendant or secondly to transfer at the Court's election the matter for determination by the High Court.
Thirdly the Defendant/Appellant's submission that the Circuit Court did not exercise either of the only options available to it under the law and that the order made is void. In support of this proposition further refers the Court to Order 5 Rule 10 of the Rules of the Circuit Court which provides as follows:
Whenever an action or matter is instituted which the Court has not jurisdiction to try and determine, if the want of jurisdiction appears on the face of the originating document, the Court shall strike out the action or matter with costs, unless the Consent prescribed by Section 48 of the Principal Act has been signed.
The Court was further referred to Order 5 Rule 9 and Section 48(1) of the Courts of Justice Act1924as amended by Section 26 of the 1936 Act.
It is submitted that the aforementioned provisions are in similar terms to and follow those enacted in respect of the County Court system which existed in this jurisdiction prior to the enactment of the Courts of Justice Act1924, which were governed by the Courts of Quarter Session in Ireland Act 1851 and the Officers and Courts of Quarter Session and Civil Bill Courts in Ireland Act 1877. The Defendant/Appellant referred the Court to Reilly .v. Mayne 1 Cr. & D.C.C. 433, wherein it was held that where the Civil Bill...
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