Monahan v Byrne
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 20 January 2016 |
| Neutral Citation | [2016] IECA 10 |
| Docket Number | No. 2015/247 |
| Court | Court of Appeal (Ireland) |
| Date | 20 January 2016 |
Kelly P.
Irvine J.
Hogan J.
[2016] IECA 10
Hogan J.
No. 2015/247
THE COURT OF APPEAL
Plenary Summons ? Renewal ? Extension of Time ? Service ? Delay ? Good Reason - Conveyancing
Facts: The appellant appealed against a High Court judge?s decision whereby he allowed an appeal from the Master of the High Court and set aside an order renewing the plenary summons in relation to conveyancing proceedings. The summons would have expired unless it had been renewed. The Master of the High Court made an ex parte order on the application of the plaintiff?s solicitors extending the time to serve the summons. After the renewed summons had been served the defendants issued a motion seeking an order pursuant to Ord. 8, r.2 to have service of the summons set aside. The High Court judge determined that the plaintiff had not provided a ?good reason? within the meaning of Ord. 8, r. 1 RSC to justify the renewal of the summons and he accordingly set aside. The plaintiff had advanced three reasons: firstly, the conveyancing file was incomplete; secondly, the solicitor for the plaintiff had been reluctant to sue his colleague and lastly, there was a risk the claim would become statute barred if the summons was not renewed.
Held by Hogan J: The court had to assess whether a ?good reason? existed within the meaning of Ord. 8, r. 1 to order a renewal of the summons. If a ?good reason? existed the court would go on to consider whether to make an order in the interests of justice by balancing the hardship caused to both parties. The court considered the three reasons offered by the plaintiff in turn. It determined that the absence of a complete file was not a real impediment to the service of the proceedings and did not amount to a ?good reason? within the meaning of Ord. 8, r. 1. The reluctance to sue local solicitors did not constitute a ?good reason? within the meaning of Ord. 8, r. 1. It was clear from case law that the fact an action might be statute-barred did not in itself constitute a ?good reason? to justify the court renewing the summons for the purposes of Ord. 8, r. 1.
The court also addressed the plaintiff?s submission that the defendants delayed in making the application to have the renewal of the summons set aside. The court determined that the delay in bringing the set aside application was not sufficient to disentitle the defendants from bringing the application. The court found that the trial judge was correct in his conclusion that the plaintiff had failed to provide a ?good reason? within the meaning of Ord. 8, r. 1 to justify the renewal of the summons. The court dismissed the plaintiff?s appeal and affirmed the decision of the High Court setting aside the renewal of the summons.
This is an appeal from the decision of the High Court (Hedigan J.) delivered on 27th April 2015 ( [2015] IEHC 263) whereby he allowed an appeal from the Master of the High Court and set aside an order renewing the plenary summons which grounded these proceedings and which itself was dated 7th June 2012.
At the close of the hearing on 17th November 2015 this Court indicated that it would dismiss the appeal and give its reasons for that decision at a later date. The reasons for this decision are now set out in this judgment.
The issue arises in the following way: The defendants are a firm of solicitors practising in Drogheda, Co. Louth. The plaintiff is a former client of the defendants and in these proceedings he claims damages for breach of contract, breach of fiduciary duty and misrepresentation. The claim itself relates to a contract for the purchase of land on 14th June 2006. The plaintiff contends that he and another individual, Mr. Ray White, jointly borrowed some ?2.2m. from Allied Irish Banks which was secured by certain mortgaged property. ?1m. of this sum was then paid to the plaintiff. It is said that a further ?1.08m. was then paid to the defendants on trust for the plaintiff.
The essence of the complaint made against the defendants is that ?790,500 of these monies were paid by them to Mr. White on 30th June 2006 and a further sum of ?146,250 was paid on 16th August 2006. It is said that these payments were unauthorised and amounted to a breach of duty. The plaintiff further contends that through the wrongdoing of the defendants the plaintiff was made liable jointly and severally with Mr White to AIB in the amount of ?2,338,097. On the 11th of April 2012 AIB called in the debt.
If the plaintiff is correct, then his cause of action crystallised immediately with these wrongful payments so that the six year limitation period in both contract and tort had almost expired by the time the proceedings were actually issued on 7th June 2012. Critically, however, the summons was not actually served on the defendants during the twelve month period permitted by Ord 8, r.1 RSC. The summons would accordingly have expired unless it had been renewed on or before 6th June 2013. On the 4th June 2013 the Master of the High Court made an order ex parte on the application of the plaintiff's solicitors extending the time for the service of the summons for six months.
The first defendant was served on 2nd December 2013, the day before the renewed summons was due to expire. The second defendant was served on the 6th December 2013. On 9th June 2014 the plaintiff's solicitors provided the defendants' solicitors with a copy of the affidavit grounding the application, this having been requested a few weeks earlier. Some six weeks later the defendants issued a motion seeking an order pursuant to Ord. 8, r.2 seeking to have the service of the summons set aside.
The reasons given for the various delays relate to both the incompleteness of the conveyancing file and a reluctance on the part of the plaintiff's then solicitor to sue fellow professionals who were also based in Drogheda. So far as the former reason is concerned, it appears that at their request, a complete file had been furnished by the defendants to the solicitors for the plaintiff on the 10th of June 2011. It was understood at that point that the plaintiff intended to sue Mr White.
It appears, however, that the file (or, at least, important parts of it) went astray in the course of the transfer of that file from the plaintiff's solicitors to a new firm of solicitors in December 2012. It is not clear, however, that the difficulties regarding the file posed a real impediment to the issue and service of the summons. It may be noted that in the course of his judgment in the High Court Hedigan J. observed that:
??.the file remained incomplete even when the renewed summons was eventually served on the first defendant on the 3rd of December 2013. This reason of incompleteness of the file is not an acceptable one. The renewed summons was served while the file remained incomplete. Service of the summons issued on the 7th of June 2012 might just as readily have been made at any time up to the 6th of June 2013.?
Hedigan J. thus concluded that the absence of a complete file did not, in fact, cause or contribute to the delay in serving the proceedings. While he observed that there might well have been a reluctance on the part of the plaintiff's then solicitor to sue fellow professionals working in the locality, this could not objectively justify the delay in effecting the service. Hedigan J. concluded that the plaintiff had not provided any ?good reason? within the meaning of Ord. 8, r. 1 such as would have justified the renewal of the summons and he accordingly set it aside.
Before considering the reasons given by Hedigan J. in his judgment to justify the setting aside of the renewal of the summons, it may be convenient to set out the provisions of Order 8, rr. 1 and 2. Rule 1 states:
?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?.?
Rule 2 provides:
?In 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.?
It is clear that any ex parte order renewing a summons can at most have a provisional status, since by definition the court will not yet have had an opportunity of hearing the other side who almost by definition will be affected by the making of such an ex parte order. The provisional status of ex parte orders is true as a matter of general law ( Adam v. Minister for Justice [2001] 3 I.R. 53), but, in any event, constitutionally mandated principles of fair procedures require that such orders cannot be accorded any higher legal status: see, e.g., DK v. Crowley [2002] 2 I.R. 744. This point was confirmed in the specific context of Ord. 8, r.2 by Finlay Geoghegan J. in Chambers v. Kenefick [2007] 3 I.R. 526,...
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