Mercantile Credit Company of Ireland Ltd v Heelan

• Jurisdiction: Ireland
• Judge: HAMILTON C.J
• Judgment Date: 01 January 1998
• Neutral Citation: 1995 WJSC-SC 1150
• Court: Supreme Court
• Docket Number: [S.C. No. 373 of 1994]
• Date: 01 January 1998

MERCANTILE CREDIT CO (IRL) LTD v. HEELAN

BETWEEN:

MERCANTILE CREDIT COMPANY OF IRELAND LIMITED AND HIGHLANDFINANCE IRELAND LIMITED

Plaintiffs

and

JOHN HEELAN, JOSEPH KENNY, JAMES F. O'HIGGINS AND PORTICOLIMITED

Defendants

1995 WJSC-SC 1150

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

373/94

THE SUPREME COURT

Synopsis:

PRACTICE

Documents

Discovery - Defendant - Obligations - Discharge - Failure - Order made striking out defence subject to stay - Stay removed - Order not made on application of plaintiff - Order set aside - (373/94 - Supreme Court - 14/2/95) - [1998] 1 IR 81

|Mercantile Credit Company of Ireland Ltd. v. Heelan|

PRACTICE

Pleadings

Defence - Cancellation - Court - Discretion - Exercise - Grounds - Party's failure to make proper discovery of documents - Order directing defence to be struck out made on court's initiative - Order set aside - Rules of the Superior Courts, 1986, order 31, r. 21 - (373/94 - Supreme Court - 14/2/95) - [1998] 1 IR 81

|Mercantile Credit Company of Ireland Ltd. v. Heelan|

Citations:

RSC O.124(1)

RSC O.31 r21

1 JUDGMENT delivered on the 14th day of February 1995 by HAMILTON C.J .[NEM DISS]

2 This matter originally came before this Court by way of a motion brought on behalf of the Plaintiffs in these proceedings seeking an order dismissing the appeal of the second and fourth named Defendants filed in this Court on the 28th day of July 1993 for want of prosecution.

3 The appeal referred to in the said notice of motion was an appeal brought by the second and fourth named Defendants in these proceedings against the order of the High Court made on the 28th day of May 1993 with a staythereon until after the hearing of further evidence on the 16th day of July 1993 whereby it was ordered and adjudged that the defence of the second and fourth named Defendants herein be struck out.

4 The effective part of the order against which the appeal was brought was contained in Paragraphs 2, 3 and 4 thereof which provided that:-

5 (2) that the defence of the said second named Defendant in these proceedings be struck out,

6 (3) that execution on foot of paragraph 2 of this Order be stayed for a period of two weeks from the date hereof, and

7 (4) that this matter do stand adjourned for mention to Friday, the 11th day of June 1993 at 11.00 o'clock in the forenoon.

8 By order dated the 11th day of June, 1993 it was further ordered:-

9 (1) that the stay on the order to strike out the said second named Defendant's defence do continue until the 25th day of June 1993,

10 (2) that the said second named Defendant do attend before this Court on the 25th day of June, 1993 for a resumption of his cross-examination,and

11 (3) that the said Plaintiff be at liberty to issue a motion for judgment in default of defence as againstthe second named Defendant returnable for the 25th day of June1993.

12 By order dated the 16th day of July 1993, it was ordered that the stay of execution granted pursuant to the aforesaid orders be and the same is hereby lifted.

13 By order dated the 29th day of July 1993, it was ordered and adjudged that the Plaintiffs do recover against the second and fourth named Defendants such amount as the Court may assess in respect of the Plaintiff's claim per damages and that such assessment be had before a judge sitting alone and be set down for hearing accordingly.

14 The application for a stay on the said order was refused by the HighCourt.

15 The motion seeking the dismissal of the second and fourth named Defendants appeal was grounded on the affidavit of Owen Dylan Macaulay sworn on the 9th day of December 1994 which contained, inter alia, the following averment:-

"I say that the second and fourth named Defendants served a notice of appeal dated 28th July 1993giving notice that the second and fourth named Defendant would appeal against the order of the High Court dated the 28th day of May 1993 by which it was directed that the defence of the second and fourth named Defendants be struck out for failure to comply properly with an order for discovery".

16 On the hearing of the said motion, counsel on behalf of the said second and fourth named Defendants sought the indulgence of the Court to permit him to prosecute the appeal on behalf of the said Defendants, that though there was very considerable delay in this matter, the Plaintiffs were also dilatory in bringing the motion to dismiss for want ofprosecution.

17 It was pointed out to the counsel by the Court the terms of the order made on the 29th day of July 1993 made by the High Court against which there was no appeal lodged.

18 This was the order directing the recovery against the second and fourth named Defendants of such amount as the Court might assess in respect of the Plaintiffs claim for damages.

19 Upon being so informed, he sought an adjournment ofthe motion, which was granted, in order to enable him to bring a motion before this Court seeking an order extending the time to permit him to file on behalf of the said Defendants a notice of appeal against the decision and orders made by the High Court on the 29th day of July1994.

20 On the 19th day of December 1994 a motion was issued on behalf of the said Defendants seeking inter alia an order that the time be extended under Order 124(1) of the Rules of the Superior Courts to permit the said Defendants to file a notice of appeal against the decision and order of the High Court made on the 29th day of July 1994.

21 Though there had been considerable delay on the part of the said Defendants and a considerable time had elapsed since the making of the order, the Court considers it proper in the interests of justice to extend the time in this particular case because the order made on the 29th day of July 1994 was made, and could...