Moran T/A Noel Moran Recovery v Black Star Management Ltd T/A The Recovery Network

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 20 March 2024
• Neutral Citation: [2024] IEHC 138
• Docket Number: 2022 967 P

Between

Noel Moran Trading as Noel Moran Recovery

Plaintiff

and

Black Star Management Ltd Trading as the Recovery Network

Defendant

[2024] IEHC 138

2022 967 P

THE HIGH COURT

Appearances

Mark Ryan for the plaintiff instructed by Michael Moran Solicitors LLP

Paul W. Hutchinson for the defendant instructed by M.W. Keller & Son Solicitors LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 20 March 2024

INTRODUCTION

1 This judgment is delivered in respect of an application to remit these proceedings to the Circuit Court. The application is made pursuant to Order 49, rule 7 of the Rules of the Superior Courts which, in turn, gives effect to Section 25 of the Courts of Justice Act 1924.

2 The principal dispute between the parties on this application is whether the quantum of damages which the plaintiff is reasonably likely to recover, if successful in his underlying claim, would be in excess of the Circuit Court's monetary jurisdiction of €75,000.

PRINCIPLES GOVERNING APPLICATION TO REMIT

3 The remittal of proceedings from the High Court to the Circuit Court is governed principally by two statutory provisions: (i) Section 25 of the Courts of Justice Act 1924, and (ii) Section 11(2) of the Courts of Justice Act 1936.

4 Section 25 of the Courts of Justice Act 1924 provides as follows:

“When any action shall be pending in the High Court which might have been commenced in the Circuit Court, any party to such action may, at any time before service of notice of trial therein, apply to the High Court that the action be remitted or transferred to the Circuit Court, and thereupon, in case the court shall consider that the action is fit to be prosecuted in the High Court, it may retain such action therein, or if it shall not consider the action fit to be prosecuted in the High Court it may remit or transfer such action to the Circuit Court or (where the action might have been commenced in the District Court) the District Court, to be prosecuted before the Judge assigned to such Circuit or (as the case may require) the Justice assigned to such District, as may appear to the High Court suitable and convenient, upon such terms, in either case and subject to such conditions, as to costs or otherwise as may appear to be just:

Provided that the High Court shall have jurisdiction to remit or transfer any action, whatever may be the amount of the claim formally made therein, if the court shall be of opinion that the action should not have been commenced in the High Court but in the Circuit Court or in the District Court if at all.”

5 The legal test governing the High Court's discretion to remit proceedings has been modified somewhat by Section 11(2) of the Courts of Justice Act 1936 as follows:

“Notwithstanding anything contained in section 25 of the Principal Act the following provisions shall have effect in relation to the remittal or transfer of actions under that section, that is to say: —

• (a) an action shall not be remitted or transferred under the said section if the High Court is satisfied that, having regard to all the circumstances, and notwithstanding that such action could have been commenced in the Circuit Court, it was reasonable that such action should have been commenced in the High Court;

• (b) an action for the recovery of a liquidated sum shall not be remitted or transferred under the said section unless the plaintiff consents thereto or the defendant either satisfies the High Court that he has a good defence to such action or some part thereof or discloses facts which, in the opinion of the High Court, are sufficient to entitle him to defend such action.”

6 As appears, the High Court in deciding whether to remit proceedings to the Circuit Court must consider whether it was “ reasonable” to have commenced the action in the High Court. This wording was examined in O'Shea v. Mallow Urban District Council [1994] 2 I.R. 117. The defendant in that case had sought to argue that it is implicit in the making of an order for remittal that it had been unreasonable to commence the action in the High Court, and that it followed, as a corollary, that no award in excess of the Circuit Court's jurisdiction could be made in the proceedings.

7 The High Court (Morris J.) rejected this argument, citing the provisions of Section 20 of the Courts of Justice Act 1936. The current version of that section provides that where an action claiming unliquidated damages is remitted or transferred by the High Court to the Circuit Court, the Circuit Court shall have jurisdiction to award damages in excess of €75,000.

8 The interpretation of Section 11(2) of the Courts of Justice Act 1936 has been considered most recently by the Court of Appeal in Allied Irish Banks plc v. Gannon [2017] IECA 291, [2018] 2 I.R. 239. Hogan J. (delivering the unanimous judgment of the Court of Appeal) referred to the two leading authorities on the interpretation of the section, Stokes v. Milford Co-Operative Creamery Ltd (1956) 90 I.L.T.R. 67, and O'Shea v. Mallow Urban District Council (above). Hogan J. then summarised the factors which might be taken into account in deciding whether it was “ reasonable” to commence proceedings in the High Court as follows (at paragraph 26 of the reported judgment):

“There may well be cases where for any number of reasons it was reasonable to commence the proceedings in the High Court in the sense contemplated by the subsection. Thus, for example, the proceedings may be linked or otherwise bound up with existing High Court proceedings or where all the witnesses were based in Dublin where the alternative was a Circuit Court hearing at a rural venue or where the case raised an unusually important point of law suitable for adjudication by the High Court. Depending, of course, on the facts of the particular case, these examples might well amount to instances where the High Court might be satisfied within the meaning of s. 11(2)(a) of the 1936 Act that it was reasonable to commence the proceedings in that forum.”

9 Absent such considerations, the contest on most applications for remittal will centre on the quantum of damages. It appears that the test to be applied is an objective one: the High Court must ask whether an award of damages in excess of the Circuit Court's monetary jurisdiction would be unreasonable or excessive. This test had originally been formulated in the context of a claim in tort and in the context of a legislative regime where damages fell to be assessed by a jury rather than a judge: O'Connor v. O'Brien [1925] 2 I.R. 24. This is reflected in the terms in which the test is expressed:

“The plaintiff's statement of his case (unless unequivocally displaced) must be accepted for this purpose, and the question must resolve itself into this:—Has the plaintiff stated (upon the affidavits opposing an application to transfer the action) a case upon which a jury could reasonably give him a verdict for a sum exceeding the Circuit Court's monetary jurisdiction. […]”.

10 This test has been reiterated by the Supreme Court in Ronayne v. Ronayne [1970] I.R. 15. There, the Supreme Court explained that this test continued to apply notwithstanding that—as the result of a subsequent legislative amendment—the Circuit Court now has unrestricted jurisdiction as to the amount of damages which may be awarded in a remitted action.

11 The test applies in slightly modified form in cases, such as the present, where the action is founded on an alleged breach of contract rather than on tort. The assessment of damages is less subjective in such actions than it is in, say for example, a personal injuries action, and the need to show deference to the verdict of a jury does not arise. The judge hearing the application to remit should consider whether the range of damages which might reasonably be awarded by the court of trial straddles the Circuit Court's monetary jurisdiction of €75,000.

12 The test has been most recently addressed by the High Court (Roberts J.) in Farrelly v. Pepper Finance Corporation [2023] IEHC 92. The test was described as follows (at paragraph 18):

“In relation to claims for unliquidated damages, such as the present case, it is well established that the primary test to be applied by this Court on an application to remit is to consider whether the proceedings could have been commenced in the lower court and whether the relief claimed is within the jurisdictional limits of that lower court. The current jurisdictional limits for claims brought in the Circuit Court is €75,000 in respect of non-personal injury claims and €60,000 in respect of personal injury claims. In considering whether the relief claimed is within the jurisdictional limits of the Circuit Court I must determine this application not on the basis of what damages I believe will probably be awarded but rather on the basis of the maximum damages that could reasonably be awarded to the plaintiff taking her claims at their height.”

13 The fact that the plaintiff has sought damages in excess of the Circuit Court's monetary jurisdiction is not determinative. Rather, the court hearing the application to remit is entitled to make some limited assessment of the value of the plaintiff's claim. This is apparent, in particular, from the judgment in Ronayne v. Ronayne where the members of the Supreme Court took the step of viewing the scarring, the subject-matter of the personal injuries action in those proceedings, for the purpose of evaluating the reasonable range of damages. Of course, an application to remit should not be elevated to a dress rehearsal of the trial of the action. It is a summary application which is heard and determined on affidavit evidence. Within these confines,...