McCANN v DESMOND

JurisdictionIreland
Judgment Date11 May 2010
Date11 May 2010
Docket Number[2009 No.
CourtHigh Court
McCann v. Desmond
Eamonn McCann
Plaintiff
and
Denis Desmond
Defendant
[2009 No. 6975P]

High Court

Practice and procedure - Contract dispute - Trial of preliminary issues - Application for modular hearing - Jurisdiction of court - Whether modular hearing suitable for trial of preliminary issues in contract dispute - Whether issues capable of determination in isolation from other issues - Whether clear saving of court time and costs - Whether modular hearing prejudicial to parties - Whether application made in good faith - Rules of the Superior Courts 1986 (S.I. No. 15), O. 25, r.1 - Rules of the Superior Courts (Commercial Pleadings) 2004 (S.I. No. 2), O. 63A, rr. 4 and 5.

The plaintiff and the defendant had entered into an arrangement to promote outdoor rock and pop concerts over a period of time. Subsequently, they entered into an arrangement to terminate their business relationship but the exact nature of the termination agreement was in dispute between the parties, particularly as regards profit distribution, accounting methods and the nature of the corporate vehicles that were to be used.

The defendant brought a motion pursuant to O. 63A, rr. 4 and 5 of the Rules of the Superior Courts 1986, seeking an order for a modular hearing for the trial of three preliminary issues in advance of the determination of any other issues in the case. The defendant claimed that these issues were readily capable of being determined in isolation and that a modular hearing would result in huge savings on costs. The plaintiff objected to the application on the grounds that it would delay the determination of the issues between the parties and lengthen the discovery process. He contended that discovery of documents would reveal how the parties had ordered the business relationship in question, the nature of the contract and would illuminate the termination agreement itself and as a result there would be a considerable overlap in the litigation.

Held by the High Court (Charleton J.), in granting the order sought, 1, that O. 63A, rr. 4 and 5 of the Rules provided that a court might make an order for a modular hearing of preliminary issues. Also, the court had an inherent jurisdiction to make such an order provided that it was just and equitable to do so.

2. That, a court in determining whether to grant an order for a modular hearing, should consider: i) whether the issues to be tried by way of a preliminary module could be determined in isolation from the other issues in dispute between the parties; ii) in administering justice in the entire circumstances of the case, whether there could be a clear saving in the time of the court and the costs involved; iii) whether a modular hearing would prejudice any of the parties; iv) whether such an application was made in good faith for the benefit of both parties to the action or whether it was intended to disadvantage one party. If these circumstances could not be fulfilled, the default position would be a full hearing.

Cork Plastics (Manufacturing) v. Ineos Compound U.K. Ltd.[2008] IEHC 93, (Unreported, High Court, Clarke J., 7th March, 2008) followed.

Cases mentioned in this report:-

Cork Plastics (Manufacturing) v. Ineos Compound U.K. Ltd.[2008] IEHC 93, (Unreported, High Court, Clarke J., 7th March, 2008).

P.J. Carroll & Co. Ltd. v. Minister for Health (No. 2)[2005] IEHC 267, [2005] 3 I.R. 457.

Notice of motion

The facts have been summarised in the headnote and are more fully set out in the judgment of Charleton J., infra.

By notice of motion dated the 23rd February, 2010, the defendant applied for an order pursuant to O.63A, rr. 4 and 5 of the Rules of the Superior Courts 1986, seeking the trial of certain preliminary issues.

The motion was heard by the High Court (Charleton J.) on the 22nd April, 2010, when the parties agreed to seek mediation at the suggestion of the court. The matter was adjourned to the 6th May, 2010, to monitor the progress of the mediation. On the 6th May, 2010, the matter was reserved for judgment.

Cur. adv. vult.

Charleton J.

11th May, 2010

[1] This is a motion to have a series of preliminary issues tried on oral evidence, with the remainder of the issues between the parties to be decided later, depending on the outcome.

[2] The plaintiff and the defendant entered into either...

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22 cases
  • James Elliott Construction Ltd v Lagan
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    • High Court
    • 2 November 2016
    ...relevant authorities were Cork Plastics (Manufacturing) & Ors. v. Ineos Compound UK Limited & Ors. [2008] IEHC 93, McCann v. Desmond [2010] 4 I.R. 554, and Weavering Macro Fixed Income v. PNC Global Investment [2012] 4 I.R. 681. I therefore do not propose to repeat or reproduce the principl......
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    ...over the proper conduct of the trial as a whole. See Cork Plastics (Manufacturing) v. Ineos Compounds U.K. Ltd. [2011] I.R. 492, McCann v. Desmond [2010] 4 I.R. 554 and Weavering Macro Fixed Income Fund Limited (In Liquidation) v. PNC Global Investment Servicing (Europe) Limited (now known ......
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    ...IESC 32, (Unrep, SC, 24/5/2012); Kilty v Hayden [1969] IR 261; McCabe v Ireland [1999] 4 IR 151; McCann v Desmond [2010] IEHC 164, [2010] 4 IR 554; McDonald v Bord na gCon [1964] IR 350; Millar v Peeples [1995] NI 6; PJ Carroll & Co Ltd v Minister for Health and Children [2005] IESC 26,......
  • Abbey International Finance Ltd v Point Ireland Helicopters Ltd and Another
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    ...2 ILRM 321, PJ Carroll & Co Ltd v Minister for Health and Children [2005] IESC 26, [2005] 1 IR 294, McCann v Desmond [2010] IEHC 164, [2010] 4 IR 554, Kalix Fund Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2009] IEHC 457, [2010] 2 IR 581 and Sweetman v An Bord Pleanála [2009] IE......
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  • More Guidance On Modular Trials
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    • Mondaq Ireland
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    ...[5] PJ Carroll and Co Ltd v Minister for Health (No 2) [2005] 3 IR 457. [6] Ibid. [7] [2008] IERHC 93. [8] McCann v Desmond [2010] 4 IR 554. [9] The test was approved by Kelly J ex tempore in Quinn v Irish Bank Resolution Corp, unreported High Court, December The content of this article is ......
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    ...and for a party in seeking one. Footnotes 1 [2012] IESC 60. 2 [2012] IESC 32. 3 Ibid, para 3.5. 4 [2005] 1 IR 294. 5 [2008] IEHC 93. 6 [2010] 4 IR 554. 7 In summary, these were as Are the issues to be tried by way of a preliminary module readily capable of determination in isolation from th......

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