McEvoy ll v King

• Jurisdiction: Ireland
• Judgment Date: 21 December 1943
• Date: 21 December 1943
• Court: Supreme Court

McDonnell v. King

BERNARD McDONNELL

Plaintiff

and

ANNE KING,Defendant. (1)

Supreme Court.

Practice - Costs - Action for damages for negligence brought in the Circuit Court - Defendant denying liability but lodging money in Court - Action dismissed by Circuit Court Judge - Appeal to the High Court on Circuit - Appeal allowed and damages awarded - Damages awarded less than the amount lodged in Court - Form of decree to be made - Whether action to be dismissed or not - Liability for costs - Whether plaintiff entitled to costs of proving issues denied by the defendant - Whether Rules of Circuit Court regulate appeals from the Circuit Court to the High Court - Circuit Court Rules, Or. VII, rr. 9, 12; Or. XL, rr. 1, 28; Or. XLI, r. 6 - Rules of High and Supreme Court, 1937, Or. I, r. 3.

Plaintiff brought an action against the defendant claiming £300 damages caused by the defendant's negligence in the driving of a motor van. The defendant denied liability but lodged a sum of £101 in Court in satisfaction of the plaintiff's claim. The Circuit Court Judge dismissed the action. The plaintiff appealed to the High Court on Circuit and on the hearing of the appeal was awarded £82 damages. Questions having arisen as to the form of decree to be made and the liability for costs, the High Court Judge stated a Case for the opinion of the Supreme Court.

Held by the Supreme Court (Sullivan C.J., Murnaghan, O'Byrne and Black JJ.) that judgment should be entered for the defendant and the action dismissed.

Wheeler v. United Telephone Co., 13 Q. B. D. 597, and Goutard v. Carr,13 Q. B. D. 598, applied.

Held further (Sullivan C.J., O'Byrne and Black JJ.; Murnaghan J. dissenting) that the defendant was entitled to recover from the plaintiff all costs incurred by him in the Circuit Court and in the High Court from the date of lodgment, the plaintiff to have his costs up to that date.

Question of Law arising on the hearing of an appeal to the High Court on Circuit from the Circuit Court, referred to the Supreme Court by way of Case Stated by Murnaghan J. sitting as High Court Judge.

The Case Stated was as follows:—"This action was brought

by the plaintiff who was cycling on a bye-road when he came into collision with a motor van driven by the defendant's servant. The Circuit Court Judge dismissed the action with costs.

The plaintiff appealed, and, after hearing evidence at Dundalk, I announced that I was satisfied that the defendant was responsible and assessed damages at a figure of £82. Counsel for the defendant asked me, having regard to the lodgment of the sum of £101 made with a defence denying liability, to dismiss the action with costs on the High Court scale less one-third. I adjourned the matter to Dublin for further argument.

Counsel for the plaintiff contended that the action should not be dismissed and that costs on the High Court scale less one-third should not be awarded. He asked me in any event to give the plaintiff costs of the issue of negligence in the Circuit Court and the costs of the appeal.

Counsel for the defendant argued that he was entitled to have the action dismissed with costs on the High Court scale less one-third in both Courts on all the issues raised.

I was in doubt as to the form in which a decree should be made, and whether I was bound to follow the form in the Schedule to the Circuit Court Rules, or whether the practice of entering judgment for the defendant, which is followed in the High Court, should be adopted. I was also in doubt as to what order should be made as to costs.

Counsel for defendant applied to me to state a Case for the opinion of the Supreme Court, and, as the matter is one of some importance, I was anxious to take this course.

I incorporate the Civil Bill and the pleadings, and the Circuit Court order as part of this Case.

The questions for the opinion of the Supreme Court are:—

1. In what form should judgment be entered?

2. Should the plaintiff be awarded costs in the Circuit Court up to date of lodgment and costs of the issue of negligence in the Circuit Court and the costs of the appeal, to be taxed as the costs appropriate to a decree for £82?

3. Should the defendant be awarded costs in the Circuit Court as from the date of lodgment and the costs of the appeal to be taxed on the High Court scale less one-third?

4. Alternatively, what form of order should the Court make as to costs?"

The Case Stated was dated 11th June, 1942.

Cur. adv. vult.

Sullivan C.J. :—

This is a Case Stated by Murnaghan J. on the hearing of an appeal by the plaintiff from an order made by the Circuit Court Judge of Louth dismissing with costs an action claiming £300 damages for injury suffered by the plaintiff by reason of the negligence of the defendant's servant in driving a motor lorry.

The defence pleaded by the defendant denied liability, and, in the alternative, pleaded the lodgment in Court of the sum of £101.

Murnaghan J. states that on hearing the evidence he was satisfied that the defendant was responsible for the injury...