M. J. Wilson v Minister for Finance and Jacob

• Jurisdiction: Ireland
• Judgment Date: 01 January 1944
• Date: 01 January 1944
• Docket Number: (1942. No. 472 P.)
• Court: Supreme Court

Wilson v. Minister for Finance and Jacob

MICHAEL WILSON, an Infant, suing by JOHN WILSON, his father and next Friend

Plaintiff

and

THE MINISTER FOR FINANCE and MARGARET JACOB

Defendants.

(1942. No. 472 P.)

Supreme Court.

Practice - Costs - Action for negligence - Joinder of two defendants - Money paid into Court by one defendant with denial of liability - Acceptance by plaintiff of money paid into Court - Action discontinued against the other defendant - Right of plaintiff to recoupment of costs paid to other defendant on discontinuance of action - Courts of Justice Act, 1936 (No. 48of 1936), s. 78.

Sect. 78 of the Courts of Justice Act, 1936 (No. 48 of 1936), provides:—

"Where, in a civil proceeding in any Court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed."

The plaintiff sued the Minister for Finance and M. J. for damages for negligence. The Minister for Finance, while denying liability, lodged £50 in Court; the plaintiff then discontinued the action against M. J. and applied for leave to accept the money lodged, and for an order under s. 78 of the Courts of Justice Act, 1936, recouping him the costs paid to M. J. on discontinuance.

Held by Haugh J. and, on appeal, by the Supreme Court (Sullivan C.J., Murnaghan and Black JJ.; Geoghegan and O'Byrne JJ. dissenting) that by the acceptance of the money lodged in Court and the service of notice of discontinuance the plaintiff had succeeded in the action against the Minister for Finance, and had failed in the action against M. J. within the meaning of s. 78, and accordingly the Minister for Finance must pay to the plaintiff by way of recoupment the costs which the plaintiff was liable to pay to the defendant M. J.

Motion on Notice.

The plaintiff issued an originating plenary summons against the Minister for Finance and Margaret Jacob claiming £150 damages for personal injuries caused by the joint negligence of both the defendants, or the several negligence of each of them, or the sole negligence of either of them.

The Minister for Finance in his defence denied that the plaintiff sustained the personal injuries, loss or damage alleged by reason of the matters alleged, or at all; and, whilst denying liability, brought into Court the sum of £50, and said that that sum was sufficient to discharge the plaintiff's claim.

The plaintiff thereupon served notice of discontinuance of the action against Margaret Jacob, who had filed a defence denying all liability.

The plaintiff then served this notice of motion for liberty to accept the £50 paid into Court by the Minister for Finance, and for an order directing the said Minister to pay to the plaintiff the costs which the plaintiff was liable to pay to the other defendant, Margaret Jacob.

Haugh J. :—

In all the circumstances of this case I am of opinion that it was reasonable for the plaintiff to join the Minister for Finance and Mrs. Jacob as defendants.

Mr. McLoughlin has suggested that the plaintiff was aware of all the facts of the accident and was in a position to elect to sue the Minister alone. The onus of showing that this was so rests on the unsuccessful defendant and he has not discharged that onus.

In my opinion the plaintiff had "succeeded" against the Minister, when the Minister having lodged money in Court with his...