Larkin v Whitony Ltd and Others

JudgeMr. Justice Geoghegan
Judgment Date19 June 2002
Neutral Citation[2002] IESC 49
Docket Number206/01
CourtSupreme Court
Date19 June 2002

[2002] IESC 49


Denham J.

Geoghegan J.

Fennelly J.





RSC O.22

RSC O.22 r3

RSC O.22 r1




Amendment of proceedings

Costs - Lodgment - Litigation - Specific performance suit - Whether order of High Court accurately reflected judgment - Whether application for amending pleadings included making of lodgment - Rules of the Superior Courts, 1986 SI 15/1986 Order 22, rules 1 & 3 (206/2001 - SC - 27/6/2002)

Larkin v Whitony Ltd

Facts: The first, fourth and fifth-named defendants appealed against the order of the High Court granting them leave to amend their defence but with the proviso that all the costs of the plaintiff to date be paid.

Held by the Supreme Court (Geoghegan J delivering judgment; Denham J and Fennelly J agreeing) in allowing the appeal. The actual order drawn up of the High Court did not accurately reflect the judgment delivered. It was clear that the costs of the plaintiff were to paid if the defendants amended their defence including the making of a lodgment. It would seem doubtful whether the actual amended pleas in the amended defence gave rise to a payment into court. It was entirely inaccurate to describe the application in the High Court as an application for a late lodgment. The order made in the High Court was not a just order in that it failed to take into account the possibility that the defendants might succeed in one or more of their original grounds of defence. Consequently the appeal would be allowed and a substituted order made allowing for the payment of a certain portion of the plaintiff’s costs should the defendants successfully defend the case on the exclusive basis of one of the amended grounds.

Mr. Justice Geoghegan
[Nem Diss]

This is an appeal brought by the first, fourth and fifth-named defendants in the above entitled proceedings against a costs order made by the High Court (Kinlen J.) when granting leave to those defendants to amend their defence. The particular costs order complained of was of the classic draconian kind under which permission to amend the Defence was only to be granted upon payment by those defendants of the entire costs of the plaintiff to date. In the approved note of the learned High Court judge's ex tempore judgment it is made quite clear that he was giving liberty for the amendment of the Defence strictly on terms which were that all costs up to the date of lodgment had to be paid to the plaintiff. But he also made it clear that this was only to happen if the relevant defendants did in fact amend their Defence which included the making of a lodgment.


Unfortunately, the actual order of the High Court as drawn up does not accurately reflect the judgment. The first part of the order grants the relevant defendants liberty to amend their defence in the manner sought and the second part of the order is simply a straightforward order that those defendants pay to the plaintiff all costs up to the date of the lodgment. At the hearing of this appeal both parties were in agreement that the intended effect of the order was as stated by the learned High Court judge in the approved note. As will clearly emerge when I outline the circumstances of the application there is further confusion both in the judgment and in the order as drawn up by virtually interchangeable references to amending the Defence and making a lodgment. This is particularly true having regard to the fact that the proposed so called"lodgment" was far removed from the conventional lodgment with which all practitioners are familiar. However, it will be clear from this judgment how it arose and how it fits in.


As the history of this action is complex and the transactions, the subject of it, unusual I think it useful even at the risk of oversimplification to explain shortly what the real net issue is.


This is a specific performance suit with an alternative claim for damages for breach of contract which was initiated by a plenary summons issued on the 19th of January, 1988. A Statement of Claim was not delivered until the 13th of September, 1990. There were a number of different agreements entered into between the relevant parties some of which are specifically referred to and explained in the Statement of Claim and the remaining agreements emerged from the Defence which, incidentally, was not delivered until the 19th of December, 1994. The additional agreements referred to in the Defence which have relevance to this application and appeal were first signposted in the case itself by the defendants in an affidavit sworn on the 21st of October, 1991 for the purposes of an application for security against costs. It is totally unnecessary for the purposes of understanding the issues on this appeal to explain even in summary form the precise nature of the four agreements referred to in the Statement of Claim and the two additional agreements referred to in the Defence. What is necessary to understand however is the following. This was a purchaser's specific performance suit relating to a house in Raheny in the city of Dublin and the purchase price was £300,000. But it so happened that £300,000 and upwards was already owing by the vendor to the plaintiff purchaser and it was part of the agreement that that debt could be set off against the purchase price and that therefore no money would pass on the completion of the transaction. However, by later agreements (those referred to in the Defence) it was agreed that if £120,000 was paid to the plaintiff in a particular manner and by particular dates with interest payments and penalties as agreed in the case of late payment, the agreement for the sale of the Raheny house was to stand rescinded and discharged. This was only to happen upon the full payment of the sums due. In their Defence, the defendant appellants pleaded (inter alia) that £90,000 of the £120,000 had been paid to the plaintiff (presumably all before the commencement of the action though that is not entirely clear) and that although the balance of the £30,000 had not been physically paid over it was being set off against disrepair and dilapidation caused to the premises during a period that the plaintiff was in occupation as caretaker. Effectively, these defendants were pleading that they must be deemed to have paid the full £120,000 and that therefore, the contract being sued upon was rescinded.


The action proceeded at a very slow pace. There were a number of factors which may have contributed to that. The plaintiff apparently left to live in the United States of America. There were applications for security for costs, for discovery and for judgment in default of defence but for the purposes of the issues raised on this appeal the next relevant step was a letter of the 8th of November, 2000 written by the solicitors for these defendants to the solicitors for the plaintiff and headed "without...

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