Meagher v Sandys
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 02 February 2016 |
| Neutral Citation | [2016] IEHC 37 |
| Docket Number | [2014 No. 3902P] |
| Court | High Court |
| Date | 02 February 2016 |
[2016] IEHC 37
[2014 No. 3902P]
THE HIGH COURT
Practice & Procedures – Tort – Damages & Restitution – O. 8, r. 1 versus O. 122, r. 7 of the Rules of the Superior Courts – Second renewal of summons
Facts: The defendants had filed an application for setting aside the order of the Court renewing the plenary summons issued by the plaintiff for the second time in a claim for damages filed by the plaintiff against the defendants. The defendants argued that the Court had no jurisdiction to entertain an application for renewal of plenary summons under o. 8, r. 1 of the Rules of the Superior Courts after the expiry of the statutory time limit.
Ms. Justice Baker granted an order for setting aside the order of the Court by which the plenary summons were renewed for the second time under o. 8, r. 1 of the Rules of the Superior Courts. The Court in consonance with the judgment of Feeney J. in Bingham v. Crowley [2008] IEHC 453 held that the second renewal of a summons must be done during the currency of the renewed summons. The Court observed that the discretion vested with the Court under o. 122, r. 7 of the Rules of the Superior Courts for enlargement of time could not override the interpretation of the specific provision relating to a specific and particular form of application. The Court held that it could not exercise its jurisdiction conferred upon it under said o. 122, r. 7 on an application made under o. 8, r. 1 if the application was made after the expiry of the prescribed time limit.
This judgment is given in an application to set aside the order of this Court made on 12th October, 2015 by which the plenary summons was renewed for a second time under Order 8, rule 1 of the Rules of the Superior Courts after the period provided by the first renewal had expired.
The plaintiff, acting as the National President of the Society of St Vincent de Paul, instituted these proceedings for damages for devastavit, negligence and breach of duty, arising from the administration of the estate of Maureen O'Connell, deceased, of whose estate the defendants were the executors and in which they acted as solicitors
The plenary summons issued on 16th April, 2014, and was first renewed for a period of six months on 24th March, 2015 by the Master of the High Court.
Ex parte application was made by the plaintiff to this Court on 12th October, 2015 to further renew the summons. The application was made after the six month period provided in the order of the Master had expired
The defendants by motion dated 16th December, 2015 seek to set aside the second renewal of the plenary summons, and contend that the renewed summons became incapable of further renewal by the Court upon its expiry on 23rd September, 2015.
Order 8, rule 2 of the Rules of the Superior Courts provides that
‘[i]n any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order’.
The approach to be taken to an application to set aside the renewal of the summons was definitively set out in Chambers v. Kenefick [2007] 3 I.R. 526 where Finlay Geoghegan J. held that fair procedures require that the defendant be given an opportunity to make such application. At page 529 her judgment she explained the approach:
‘It appears to me that … it is open to a defendant, by submission, to seek to demonstrate to the court that, even on the facts before the judge hearing the ex parte application, upon a proper application of the relevant legal principles the order for renewal should not be made. This appears to me to be necessary having regard to the purpose of an application under O. 8, r. 2. It only relates to orders which have been made ex parte. On any ex parte application by a plaintiff, a defendant has not had an opportunity of making submissions to the court as to why the court should not exercise its discretion under O. 8, r. 1 to renew a summons. It appears to me that the purpose of including O. 8, r. 2 is to accord to a defendant fair procedures in the High Court, and to permit a defendant where he considers it necessary to make submissions to a judge, even on what might be described as an agreed set of facts, that the court should not exercise its discretion to renew a summons, and therefore I propose considering this application from the defendant on that basis.’
The approach of Finlay Geoghegan J. has been approved and applied in a number of subsequent cases, notably by Clarke J. in Moloney v, Lacey Building and Civil Engineering Limited [2010] 4 I.R. 417 and by Hogan J. in Doyle v. Gibney [2011] IEHC 10 and is now settled law, as a result of which the plaintiff accepts that the application to set aside is properly before me.
Counsel for the defendants assert that renewal of the plenary summons should be set aside because it was made without jurisdiction. He argues that, while on the first renewal a broad discretion is given, a more stringent test is applicable to a second or subsequent renewal application which must, having regard to the case law, be made within the currency of the renewed summons.
I turn now to consider these authorities.
Order 8 of the Rules of the Superior Courts sets out rules pertaining to the renewal of summons. Order 8, rule 1 provides that:
‘No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. The summons shall in such case be renewed by being stamped with the date of the day, month and year of such renewal; such stamp to be provided and kept for that purpose in the Central Office and to be impressed upon the summons by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in the Form No. 4 in Appendix A, Part I; and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.’ (Emphasis added)
Counsel for both parties accept that there is authoritative and recent judgments of the High Court on the jurisdiction to renew a summons, and agree that the judgment of Feeney J. in Bingham v. Crowley [2008] IEHC 453 is directly on point. That case concerned a plenary summons that had been renewed after the renewed summons had expired. Feeney J. held that the words of Order 8, rule 1 mean that a second or subsequent renewal can be granted only during the currency of the renewed summons. His reasoning is clear. At paras. 19 and 20 he stated as follows:
‘Such renewal is therefore subject to the words contained in Order 8, Rule 1, being a second or subsequent renewal, namely ‘and so from time to time during the currency of the renewed summons’. It is contended by counsel for the second named defendant that those words mean that a second or subsequent renewal can only be applied for and granted during the currency of the renewed summons, which on the facts of this case was on a date within six months from the 21st November, 2005. In other words, the second named defendant contends that on the 19th February, 2007, the application was made not within the currency of the renewed summons. The solicitor for the plaintiffs argue that a correct interpretation of Order 8, Rule 1 is that the Court retains a discretion to renew the summons and that since the word currency is not defined, that the currency of the renewed summons can be taken to apply to any date after the first renewal of the summons.
This Court is satisfied that the interpretation contended for by the second named defendant's counsel is correct. If such interpretation was not correct it would mean that the words ‘during the currency of the renewed summons’ had no additional meaning or effect and that the sentence in the rule could have concluded at ‘from time to time’. The Court is obliged to give effect and meaning to the wording of Order 8, Rule 1 and that includes the words ‘during the currency of the renewed summons’. The only interpretation which can be given to the words ‘the currency of the renewed summons’ is the period identified as being the six month period of renewal provided for in an order to renew the summons. The rule provides a more stringent requirement in relation to a second or subsequent renewal in that after the first renewal, a summons will be incapable of further renewal unless an application to renew is made within the currency of the renewed summons.’
The judgment of Feeney J. in Bingham v. Crowley was followed by Dunne J. in Carlisle Mortgages Limited v. Patrick Canty...
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