Lombard Ireland Ltd v Kevin Devlin Transport and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] IEHC 653
• Court: High Court
• Date: 12 December 2014

[2014] IEHC 653

THE HIGH COURT

[No. 609 S/2012]

Lombard Irl Ltd v Kevin Devlin Transport & Devlin

BETWEEN

LOMBARD IRELAND LTD

PLAINTIFF

AND

KEVIN DEVLIN TRANSPORT AND KEVIN DEVLIN

DEFENDANTS

RSC O.63 r9

RSC O.17 r4

MIN FOR JUSTICE & COURTS SERVICE v INFORMATION COMMISSIONER 2001 3 IR 43 2002 2 ILRM 1 2002/17/4076 2001 IEHC 35

FREEDOM OF INFORMATION ACT 1997 S46

FYFFES PLC v DCC PLC & ORS 2005 1 IR 59 2005 1 ILRM 357 2005/26/5447 2005 IESC 3

ACC BANK PLC v HEFFERNAN UNREP HOGAN 4.11.2013 2013/2/347 2013 IEHC 557

RSC O.37 r6

RSC O.34

RSC O.37 r4

ABRAHAMSON & ORS DISCOVERY & DISCLOSURE 2007 758

HAY v O GRADY 1992 1 IR 210 1992 ILRM 689 1992/2/502

STARKEY v PURFIELD 1946 1 IR 358

SEALES v MCSWEENEY 1944 IR 25

KEATING v RADIO TELEFIS EIREANN (RTE) 2013 2 ILRM 145 2013/27/8131 2013 IESC 22

AER RIANTA v RYANAIR 2001 4 IR 607 2002 1 ILRM 381 2001/1/68

Commercial Law – Practice and Procedure – Lease Agreements – Application to add or substitute a Plaintiff – Discharge an order of the High Court – Striking out Proceedings – Entering Final Judgment – Discovery

Facts: The plaintiff (‘Lombard’) sought relief in two separate motions. In the first motion the plaintiff sought 1) An order by way of appeal pursuant to O. 63 r. 9 to set aside the Master of the High Court”s order striking out the plaintiff”s summons and notice of motion seeking liberty to enter final judgment; 2) An order granting liberty to enter final judgment against he defendants together with continuing interest under clause 3(v) of a lease agreement made between the parties; 3) An order granting liberty to the plaintiff amend the civil bill; 4) Any further or other order that the court may deem appropriate. In the second motion the plaintiff sought the following orders 1) An order substituting another party as plaintiff to the proceedings; 2) in the alternative, an order joining another party as the co-plaintiff in the proceedings; 3) All necessary and consequential amendments, and 4) an order for costs.

The claim against the first defendant was for judgment of a liquidated amount arising from two business lease agreements for the hire of construction vehicles. The claim against the second defendant was on the foot of the defendants” liabilities as guarantor on the same lease agreements. The lease agreements required the first defendant to repay monthly instalments. If they failed to so the plaintiff was entitled to terminate the agreements. The first defendant failed to make the repayments and was served with notices of termination of the lease agreements. The defendant returned the goods and the sale proceeds were used to reduce the liability outstanding to the plaintiff. However, there was still an amount due and owing.

The plaintiff made an ex parte application to the Master of the High Court to amend the summons and two amendments were made. The Master was unhappy with the amendments made to the summary summons because they were not made in the way the Order directed. As a result, the Master struck out the plaintiff”s summons and notice of motion to enter final judgment.

The motion to substitute or add a new plaintiff was as a result of an agreement coming into force under which the asset finance facilities of the plaintiff were transferred to another party. The defendants argued that it was not possible to add a plaintiff to the proceedings because they had already been struck out. Therefore, proceedings would have to be reinstated before title could be amended.

In relation to the application to enter final judgment the defendant relied on case law to say that if the court set aside the order of the Master striking out the summons, the only consequential order to be made was an adjournment for plenary hearing. The court considered whether it should send the matter for plenary hearing so that an application for discovery could be made. The defendants” sought discovery of a redacted agreement to assess whether or not it was sufficient to transmit the interests of one plaintiff to another plaintiff.

Held by Donnelly J: The first question for the court was whether the plaintiff was entitled to the order adding or substituting a new plaintiff to the proceedings. The court was satisfied that an event had occurred after the commencement of the matter that caused a transmission of interest/liability from the existing plaintiff to a new plaintiff. The court made the order to substitute the existing plaintiff with another plaintiff Company.

The notice of appeal was an application under O. 63 r. 9. Order 63 allows a party to apply to the court to discharge an order made by the Master or to make an order refused by the Master. The court determined that it had full jurisdiction to reconsider the order made by the Master. It determined that the failure to amend the summary summons in the exact terms ordered by the Master did not justify the proceedings being struck out. Furthermore, the amendments made were consistent with the order. The court reversed the order of the Master and reinstated the summons and notices of motion.

The court considered that an application for discovery might produce the full agreement and the agreement may not legally transfer the interests from one plaintiff company to the other plaintiff company. The court determined that it was not possible to decide that no issues would arise from the transfer of interest because it had not had sight of the unredacted agreement. Due to the unusual features of the case the court did not send the matter for plenary hearing and instead adjourned the motion for judgment to permit the defendant to bring an application for discovery.

Introduction

1 1. The plaintiff ("Lombard") seeks relief in two separate motions. The first motion in time is a motion headed "Notices of Appeal". In that motion, dated 20 ^th February 2013, the plaintiff seeks the following relief:

1 An order by way of appeal pursuant to 0. 63 r.9 setting aside the Order of the Master of the High Court of the 15 ^th February, 2013 striking out the plaintiff's summons and notice of motion seeking liberty to enter final judgment dated the 29 ^th March, 2012 (A similar order is sought in relation to the granting of costs to the defendant).

2 An order in terms of the notice of motion dated the 29 ^th March, 2012, that is an order granting liberty to enter final judgment against the defendants in the sum of €227,175.93 together with continuing interest under clause 3 (v) of a lease agreement made between the parties on the 4 ^th November, 2009.

3 If necessary, an order granting liberty to the plaintiff to amend the civil bill (this should read the summary summons) in the terms of the orders of the Master dated the 16 ^th January, 2013 and the 13 ^th February, 2013.

4 Such further or other orders as this honourable court may deem fit.

2 2. The second motion issued on the 11 ^th February, 2014 and Lombard seeks the following orders:

1 An order substituting Vanguard Auto Finance Ltd as plaintiff in the proceedings.

2 In the alternative, an order joining Vanguard Auto Finance Ltd as a co-plaintiff in the proceedings.

3 All necessary and consequential amendments, and

4 An order providing for the costs of and incidentals to the proceedings.

3 3. Lombard's claim against the first defendant is for judgment for a liquidated amount arising from two business lease agreements both dated the 4 ^th November, 2009, for the hire of a number of Komatsu construction vehicles. Lombard's claim against the second defendant is also for judgment on foot of the second defendant's liabilities as guarantor on the same business lease agreements. The business lease agreements required the first defendant to repay various monthly instalments commencing on the 12 ^th November, 2010. The said lease agreements provided that the first defendant would discharge the monies due from time to time. They also provided that Lombard was entitled to terminate the agreements with the first defendant in the event of a breach, and in particular, if there was a failure to pay any rentals as they fell due.

4 4. Lombard's case is that the first defendant failed to make repayments of the rentals as they fell due and that it lawfully served separate notices of termination on foot of the lease agreements dated the 17 ^th November, 2011 and the 8 ^th March, 2011. The said notices required return of the goods. The goods were duly returned and the sales proceeds of same were used to reduce the liability outstanding to Lombard on foot of those agreements. In an affidavit, Mr. Colm McLoughlin, the specialist relationship manager with Lombard, has provided the relevant proof in relation to the making of the agreement and the breach of the agreement and also the termination of the agreement by way of notice. Mr. McLoughlin has set out in his affidavit that there is still due and owing the sum of €227,175.93 being the total liabilities on foot of the said lease agreements. He has exhibited a copy computation of the liability in respect of each of the agreements.

History of the proceedings.

5 5. On the 16 ^th day of January, 2013, the solicitor for Lombard made an ex parte application to the Master of the High Court for an order amending the summons. Two amendments were made: a) the addition of the letter "S" after the word DEFENDANT in the title of the proceedings on page one of the summons and b) the deletion of the text "the plaintiff who registered office is at Lombard Ireland Ltd, Group Centre, Georges Quay, Dublin 2 is a limited liability company" which appears on the second paragraph on page six of the summons (the final page) and the insertion therefore of the following text "the plaintiff whose registered office is at Lombard Ireland Ltd., Ulster Bank Group Centre, Georges Quay, Dublin 2 is a limited...