Kennemerland Groep v Montgomery & Sons

• Jurisdiction: Ireland
• Judgment Date: 10 December 1999
• Date: 10 December 1999
• Docket Number: 1997 No. 10830 P
• Court: High Court

THE HIGH COURT

1997 No. 10830 P

BETWEEN

B.V. KENNEMERLAND GROEP

PLAINTIFF

AND

GILES F. MONTGOMERY

WILLIAM J. MONTGOMERY

AIDAN FITZPATRICK

WILLIAM B. MONTGOMERY

KATHLEEN MONTGOMERY PRACTISING UNDER THE STYLE AND TITLE OF THOMAS MONTGOMERY & SONS

DEFENDANTS

Abstract:

Practice and procedure - Litigation - Statute of Limitations - Proceedings issued in name of incorrect plaintiff - Amendment of proceedings - Order of substitution - Whether court should amend pleadings - Rules of the Superior Courts, 1986 (SI 15) Order 15 rules 2 and 13.

A dispute had arisen between the plaintiff and the defendants who had been engaged by the plaintiff as their solicitors. The dispute concerned the payment of monies which the plaintiff claimed was for the purpose of new litigation which had not occurred. The defendants disputed this claim. In this application the plaintiff sought to amend the proceedings to reflect the correct name of the plaintiff. The defendants contended that the application should not succeed as it was claimed that the action at the suit of the new party was in any event statute barred. Geoghegan J was satisfied that the interests of justice required that the order of substitution be made. The defendants would have the opportunity of pleading and raising issues relating to the Statute of Limitations in due course.

1 Judgment of Mr. Justice Geoghegan delivered the 10th day of December, 1999

2 This is an application by way of appeal from the Master of the High Court for an Order substituting Vriesteem “De Drie Haringen” B.V. as Plaintiff in substitution for B.V. Kennemerland Groep. The Defendants are a firm of solicitors who were engaged by a Dutch company to carry on Irish litigation. A sum of £25,000 was paid to the Defendants by their client. But there is a dispute as to whether that payment was for the purpose of discharging costs already owed or for the purposes of new intended litigation which never ensued. The Dutch client company was originally called Rederij Kennemerland B.V. and was a subsidiary of the presently named Plaintiff. The name of the client company was changed in 1994 to Maarten Ederveen IV B.V. (“Maarten”). Subsequently, Maarten merged with the company

3 now sought to be substituted as Plaintiff and all assets and liabilities of Maarten became transferred to that company. The claim against the Defendants is that the money should be returned as it was intended for litigation which never occurred and it is suggested that it has been held by the Defendants in trust ever since. The Defendants not only dispute the purpose of the payment of the monies as I have already explained but claim that any action to recover them is long statute barred.

4 It is not seriously in dispute that the proceedings which were instituted on the 19th of September, 1997 were brought in the name of the wrong Plaintiff due to a bona fide error. As to how this error arose is fully explained in the Affidavit of Mr. Terry Leggett, Solicitor of Eugene F. Collins & Co. and particularly in paragraph 7 of his supplemental Affidavit sworn 1st October, 1998. It is perfectly clear that the Defendants would have at all material times known that the wrong company was the Plaintiff and furthermore they themselves in correspondence regularly used the name of the parent company i.e. the incorrect Plaintiff.

5 Order 15 Rule 2 of the Rules of the Superior Courts provides as follows:

6 “Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court may, if satisfied that it has been commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff on such terms as may be just.”

7 I am absolutely satisfied that subject only to the problem of statute bar, justice...