Mooreview Developments Ltd and Others v First Active Plc and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 20 October 2005
• Neutral Citation: [2005] IEHC 329
• Docket Number: [No. 9018 P/2003]
• Court: High Court
• Date: 20 October 2005

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & JACKSON

BETWEEN

MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MOLDRO S.C. LIMITED, THE POPPINTREE MAUL LIMITED AND BLONDON PROPERTIES LIMITED

PLAINTIFFS

AND

FIRST ACTIVE PLC AND RAY JACKSON

DEFENDANT

AND

RELATED CASES

[2005] IEHC 329

[No. 9018 P/2003]

THE HIGH COURT

PRACTICE AND PROCEDURE: discovery

Particulars - Amendment of pleadings - Whether discovery necessary - Party seeking discovery already in possession of documents - Whether still entitled to discovery to know case being made by respondent - Whether defendant entitled to fuller particulars of plaintiff's claim - Whether sufficient to state that matter within knowledge of defendant - Whether amendments necessary to allow court determine real questions of controversy - Whether reason for amendment necessary - Mahon v Celbridge Spinning Co Ltd [1967] IR 1; McCarthy v O'Flynn [1979] IR 127; Taylor v Clonmel Healthcare Ltd [2004] 1 IR 169 and Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 1 ILRM 321 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 31 r 12 - Discovery ordered; replies to request for particulars ordered; amendment allowed (2003/9018P - Clarke - 20/10/2005) [2005] IEHC 329

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & JACKSON

RSC O.31

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169 2004 2 ILRM 133

MCCARTHY v O'FLYNN 1979 IR 127

MAHON v CELBRIDGE SPINNING CO 1967 IR 1

CROKE v WATERFORD CRYSTAL LTD & IRISH PENSIONS TRUST LTD 2005 1 ILRM 321

1. Introduction:

2 1.1 On the 1st May, 2005 Carroll J. ordered that certain related proceedings be linked and heard at the same time.

3 1.2 The President of the High Court assigned those cases to me for the purposes of managing and ultimately hearing same. The proceedings include the above proceedings ("the principal proceedings") together with certain related proceedings all of which have been before the court on a number of occasions. The claims made in the principal proceedings are complex with the statement of claim running to 40 paragraphs and claiming damages running to well in excess of €150 million. While it is unnecessary, at this stage, to specify in any detail the full nature of the claims made, same arise out of the relationship between the first named defendants ("First Active") as lenders to a variety of companies which were related and of which Brian Cunningham ("Mr. Cunningham") was the principal shareholder and a director. In that context it would appear that First Active lent money to each of the plaintiffs in the principal proceedings with the possible exception of Blondon Properties Limited. In summary the plaintiffs allege that First Active was a shadow director of the plaintiff companies, that it acted in breach of lending terms and conditions, that it acted negligently and in breach of duty and that the second named defendant, as a receiver, ("the receiver") was invalidly appointed to the first second and third named plaintiffs and acted negligently. First Active and the receiver strenuously deny those allegations.

4 1.3 The first related case (Record 2003 No. 9017 P) is one in which Mr. Cunningham is plaintiff and First Active is defendant. In those proceedings, as presently constituted, Mr. Cunningham seeks declarations concerning the extent of guarantees entered into by him in relation to the indebtedness of certain of the plaintiffs in the principal proceedings and claims damages.

5 1.4 The second related proceedings (Record 2004 No. 18785 P) were commenced by Porterridge Trading Limited ("Porterridge") against First Active. Porterridge is also a company of which Mr. Cunningham is, apparently, the beneficial owner. Porterridge claims to be entitled to the interest of a lessee in certain properties at Galway which were leased to it by the second named plaintiff in the principal proceedings. First Active claims that it holds a mortgage or charge over the property which pre-dates the lease and accordingly takes priority. The allegations against First Active include slander of title.

6 1.5 In the context of attempting to deal with each of the interlocutory matters which require to be resolved before determining the precise method and sequence of the trial of the issues which arise in the above proceedings I directed that the parties would attempt to resolve all procedural questions such as particulars and discovery but that in the event that any such questions proved incapable of resolution applications in respect of remaining issues should be brought before me. On foot of those directions a series of procedural applications were heard by me and this judgment is directed towards the issues which arise on those applications.

2. Additional Cases

2 2.1 However before going on to deal with those issues I should note that two of the motions which were before me on the occasion in question concerned applications on the part of, on the one hand First Active, and on the other hand the receiver to have further proceedings joined in this process. The proceedings involving First Active bear Record No. 2005 No. 272 S and seek, as against Mr. Cunningham, judgment on foot of a guarantee arising out of transactions and dealings involving companies who are the plaintiffs in the principal proceedings. In the case of the proceedings maintained by the receiver (bearing Record No. 2005/793 S) same seek repayment of what is contended to be a director's loan outstanding by Mr. Cunningham in favour of Moorview Developments Limited (the first named plaintiffs in the principal proceedings). The applications to have those respective proceedings joined in the case management process were resisted by counsel on behalf of Mr. Cunningham on slightly different bases.

3 2.2 In relation to the proceedings maintained by First Active it was contended that were I to embark on any hearing in respect of those proceedings prejudice might occur. The proceedings are summary proceedings. First Active's application for liberty to enter final judgment came before the Master of the Court on 15th July, 2005 . The Master took the view that the case was contested and transferred same to the court list for hearing where it stands listed for the 7th November next. Thus if these proceedings were to be linked the first matter which would, apparently, come before me, would be the hearing of an application for summary judgment in the circumstances outlined above.

4 2.3 Having regard to a contention on the part of counsel for Mr. Cunningham that prejudice might be caused, were I to embark upon such a hearing, it seemed to me that it would, out of prudence, be inappropriate for me to consider whether this case should be linked with the cases already assigned to me and that, as a safer alternative, an application to so link should be made to the judge having carriage of the motion list on the 7th November next or alternatively to the President of the High Court who has assigned me to deal with these cases. I took that course of action without forming any view as to whether there was a stateable basis as to whether prejudice might be caused but by virtue of the fact that, if it should transpire as a result of hearing the application that I was, in fact, prejudiced, I might put myself in a position where, contrary to the assignment by the President, I would no longer be in a position to deal with further issues arising in these proceedings.

5 2.4 In relation to the proceedings maintained by the receiver no such contention of prejudice was made but it was indicated that the application to link those proceedings might be premature having regard to the fact that no replying affidavit had been filed by Mr. Cunningham, as defendant in those proceedings, so as to indicate the issues that might arise whether of law or fact and consequently, the issues not being established, it was contended that it was not clear as to whether there would be an advantage in the linkage sought. In all the circumstances it appeared to me that it might again be prudent if someone other than myself were to determine whether it was appropriate that this case should also be linked.

6 2.5 Finally before departing from those two applications I should note that counsel for First Active made clear when seeking to move the application to link the First Active guarantee proceedings that it would be his case that even in the event that judgment were granted against Mr. Cunningham in a summary fashion in those proceedings, he would accept that it would be appropriate (having regard to the connection between the events leading to the guarantee and the events which are the subject of the principal proceedings) that a stay should be placed upon any such judgment pending a resolution of the principal proceedings.

3. The Issues for Decision

The remaining motions can be divided into those involving

(a) discovery;

(b) particulars; and

(c) an application by Mr. Cunningham to amend certain pleadings

I deal with each in turn.

4. Discovery

2 4.1 Both First Active and the receiver seek discovery of a variety of documents which are specified in the respective schedules to the two notices of motion issued. While there are certain more detailed questions that arise in respect of some of the categories of documents sought (particularity in the receiver's application) it is fair to say that the principal opposition on the part of Mr. Cunningham to making the discovery sought in both applications is at the level of principle and applies equally to both cases. It is undoubtedly correct that the discovery sought, particularly on the application of First Active, is wide ranging. It is equally true to say that a reading of the pleadings generally but in...