Kirby v Kane
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 18 December 2020 |
| Neutral Citation | [2020] IEHC 679 |
| Docket Number | [2018 No. 8925P.] |
| Court | High Court |
| Date | 18 December 2020 |
AND
[2020] IEHC 679
Allen
[2018 No. 8925P.]
THE HIGH COURT
By order of the High Court (Kelly P.) made on 16th October, 2018 the third defendant, Mr. Jerome Kane, was directed to remove any and all vehicles, machinery, equipment, bulls, cattle, sheep, livestock and other animals from the lands comprised in six folios at Willsbrook and Cranleybeg, County Longford, and to pay to the plaintiff, Mr. Myles Kirby, the costs of the motion on foot of which the order was made, when taxed and ascertained. The order also restrained Mr. Kane from making contact with any prospective purchaser or otherwise interfering with the sale of the lands.
Mr. Kane was notified of the making of the order that evening and, by his solicitors, by letter dated 17th October, 2017 indicated that he would remove any animals he had on the land later that day. Mr. Kane now applies to the court to set aside the order of 16th October, 2018 and in particular the order for costs. In truth, the application is simply to set aside the order for costs.
The motion which was heard by the High Court on 16th October, 2018 was at that time the most recent battle in what the President characterised as a war of litigation between the Revenue Commissioners and receivers appointed by the High Court on the application of the Revenue Commissioners, and the first defendant, Mr. John Alex Kane and various members of his family. In 2009 Mr. John Alex Kane was decreed for €4.9 million on foot of a number of assessments for tax. Later, on the application of the Revenue Commissioners, Mr. Myles Kirby was appointed as receiver over a number of properties owned by Mr. John Alex Kane. One of the myriad difficulties encountered by Mr. Kirby in realising the properties was that in the Autumn of 2018 someone placed cattle on the lands. By enquiries with the Department of Agriculture Mr. Kirby established that the cattle which were on the lands comprised in one of the folios, Folio 6384, County Longford, were tagged with a herd number that belonged to Mr. Kane, who is a brother of Mr. John Alex Kane, and it appears to have been for that reason that he was named as a defendant in these proceedings and was made a respondent to the application heard by the President on 16th October, 2018.
When the motion was called on 16th October, 2018 Mr. John Alex Kane was present in court and was represented by a solicitor. There was no appearance by or on behalf of Mr. Jerome Kane, but the President was satisfied that he had been served and proceeded to make the orders sought.
In his affidavit sworn on 29th May, 2020 in support of this application, Mr. Kane deposes that he first became aware of Mr. Kirby's motion on the evening of 16th October, 2018. He says that he had just that evening returned from a holiday in Galway. Mr. Kane deposes that he took no part in the events described in Mr. Kirby's affidavit of 11th October, 2018 and that as far as he is aware all of the cattle on “ the subject lands” belonged to his brother Mr. Seamus Kane. Mr. Kane acknowledges the existence of the Department of Agriculture information obtained by Mr. Kirby and suggests that “ the only” basis for Mr. Kirby's belief that the cattle on the lands in Folio 6384 were his was that they were registered to his herd number and that he had been in receipt of Department of Agriculture grant payments for the year ending 31st October, 2017. I pause here to say that Mr. Kane's evidence as to what cattle were where is at best ambiguous. He appears to confine himself to the identity and ownership of the cattle found by Mr. Kirby to be on one only of the six folios the subject of the order. That said, he does not dispute that the cattle had his herd number or that he was in receipt of Department of Agriculture grants.
Immediately upon being apprised of the making of the order Mr. Kane made an appointment to see his solicitor and on the following day his solicitors wrote to Mr. Kirby's solicitors to say that on the previous evening he had found a letter of 12th October, 2018 enclosing the motion papers inside the patio door of his home. Mr. Kane, it was said, had instructed his solicitors to advise the plaintiff's solicitors “… that any animals he has on the lands will be removed today.” Mr. Kane now says that he did not then believe that he had cattle on the lands but wanted to make it clear that if any of the cattle on the lands transpired to be his, they would be removed in compliance with the order. He says that on an unspecified date after that letter was written he ascertained by unspecified means that none of the cattle on the lands were his but belonged to his brother Seamus. He does not attempt to explain how or when cattle with tags bearing his herd number came to belong to his brother.
Mr. Kirby's solicitors replied to Mr. Kane's solicitors by letter dated 18th October, 2018 enclosing a copy of the order with a penal endorsement and asking for confirmation that Mr. Kane's solicitors intended to enter an appearance and had instructions to accept service of the order. For completeness, they added, Mr. Kane had been ordered to pay the costs of the motion “ and we are instructed to pursue your client for the said costs. This will be the subject of separate correspondence in early course.” Mr. Kane's solicitors replied on the following day to say that they did not have instructions to come on record but were seeking instructions in relation to the contents of the plaintiff's solicitors' letter. They continued:-
“As advised our client only received your correspondence enclosing proceedings on the evening of 16th of October last (after the matter was heard before the President). Therefore, an issue arises in relation to service of these proceedings on our client which would impact upon any issue in relation to costs.”
Mr. Kane now acknowledges that his solicitors then sought further instructions and that he did not then give them any further instructions. He says that he did not believe that it was necessary to do so because he had no hand, act or part in the events complained of, and that the court had already dealt with the matter, albeit, he says, in his absence. He says that he did not then fully grasp the gravity of the situation and in particular the possibility that the plaintiff might pursue him for the costs. He says that he did not then consider that he would be pursued for the costs because he had had no knowledge of the proceedings and he did not consider that he could possibly have any liability for the costs in the circumstances.
Mr. Kane was before the court again on 18th November, 2019 as the respondent to a motion brought by Mr. Kirby to have him attached and committed for breach of the order of 16th October, 2018. Mr. Kane acknowledges that he was served with that application and he appeared and was represented by his solicitor. That application was also heard by the President. The motion was dismissed, and Mr. Kirby was ordered to pay Mr. Kane's costs. Mr. Kane now says that the President accepted that he had no involvement in the alleged acts of contempt and that he believed and understood that this was now the end of the matter and that he would not be subject to any further legal proceedings “, as the President had found that [he] had no involvement in the matters complained of by the plaintiff.” There is some ambiguity in this in that Mr. Kane conflates the alleged acts of contempt – which were the subject of the motion to attach – and the matters complained of by the plaintiff – which may have encompassed the matters which were the subject of the motion for the interlocutory injunction.
The affidavit of Mr. Kane does not identify the allegations of contempt which were the subject of the motion which was heard on 18th November, 2019 but the affidavit of Mr. Michael Commons, the plaintiff's solicitor, does. At some time in 2019 Mr. Kirby seized some cattle from the lands over which he had been appointed and had them sold. A threatening telephone call was made to the cattle dealer who bought those cattle by someone who identified himself as Mr. Jerome Kane. The allegation of contempt against Mr. Kane was that it was he who had made the telephone call. Mr. Kane denied that and the motion to have him attached was dismissed with costs. Mr. Commons has averred – and his evidence is uncontested – that the question of who owned the cattle which had been placed on the lands in Autumn 2018 was not an issue that was before the President on 18th November, 2019.
On 18th March, 2020 Mr. Kane was shocked to receive a letter from his solicitors enclosing a bill of costs drawn by Lowe Legal Cost Accountants and a notice that a hearing date for adjudication on legal costs had been fixed for 2nd April, 2020, which (presumably on the basis that an appearance had been entered in the action for the purposes of dealing with the motion to attach) had been served on his solicitors. The sum claimed for the plaintiff's costs of the motion and order of 18th October, 2018 was for €53,749. Mr. Kane says that the bill appears to him to be excessive. Subject to the outcome of this application, the question as to whether the amount claimed is or is not excessive will be a matter for the adjudicator, but it cannot be gainsaid that it is a lot.
On 30th March, 2020 Mr. Kane's solicitors wrote to Mr. Kirby's solicitors rehearsing what they had written on 17th October, 2018 and threatening an application to set aside “ the order for costs made against him on the 16th October, 2018” unless there was confirmation that Mr. Kirby would not proceed with the order for costs. On 14th April, 2020 Mr. Kirby's solicitors replied. Inevitably, they insisted that the order for costs...
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