Motor Insurers Bureau of Ireland v Hanley
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 18 December 2006 |
| Neutral Citation | [2006] IEHC 405 |
| Court | High Court |
| Docket Number | [2004 No. 528S] |
| Date | 18 December 2006 |
Between:
And
[2006] IEHC 405
THE HIGH COURT
Practice & procedure - Personal Injuries - Summary Summons - Whether can proceed by way of summary summons to pursue indemnification made by agreement with MIBI - Whether could proceed under Order 2 Rules of Superior Courts - Order 2 Rules of the Superior Courts 1986
Facts: The plaintiff body, the MIBI, sought to proceed by way of summary summons to recover the sum of €127,170.07 pursuant to the mandate indemnification agreement between the parties under which the plaintiff dealt with a claim against the defendant for him. The plaintiff sought a declaration that it was entitled to proceed by way of Order 2 of the Rules of the Superior Courts. The defendant contended that while a liquidated sum was at issue, it was not due on foot of any contract, express or implied.
Held by Peart J. that the plaintiff was entitled to proceed by way of Order 2 given that a claim for a liquidated sum on foot of an express contract existed.
Reporter: E.F.
RSC 1986 O. 2
COMMON LAW PROCEDURE AMDT ACT (IRELAND) 1853 16 & 17 VICT CAP 113 S8
COMMON LAW PROCEDURE AMDT ACT (IRELAND) 1853 16 & 17 VICT CAP 113 S6
COMMON LAW PROCEDURE AMDT ACT (IRELAND) 1853 16 & 17 VICT CAP 113 S16
COMMON LAW PROCEDURE AMDT ACT (IRELAND) 1853 16 & 17 VICT CAP 113 S96
BEWLEY & NAISH COMMON LAW PROCEDURE ACTS 1871 100
RULES OF THE SUPREME COURT (IRELAND) 1891 O. III r6
WYLIE JUDICATURE ACTS 1900 189
RULES OF THE SUPREME COURT (IRELAND) 1891 APPENDIX A PART III SII
COMMON LAW PROCEDURE 1854 S93 (UK)
KILGARIFF v MCGRANE 8 LR IR 354
LAGOS v GRUNWALDT 1910 1 KB 41
BULLEN & LEAKE PRECEDENTS OF PLEADINGS IN PERSONAL ACTIONS IN THE SUPERIOR COURTS OF COMMON LAW 2ED 1863
BULLEN & LEAKE PRECEDENTS OF PLEADINGS IN PERSONAL ACTIONS IN THE SUPERIOR COURTS OF COMMON LAW 8ED 1924 50
RULES OF THE SUPREME COURT (IRELAND) 1905 O. III r6
COURTS OF JUSTICE ACT 1924
RULES OF THE HIGH COURT & THE SUPREME COURT 1926 O. I r1
CAULFIELD v BOLGER 1927 IR 117
RULES OF THE HIGH COURT & THE SUPREME COURT 1926 O .3 r1
RULES OF THE HIGH COURT & THE SUPREME COURT 1926 O. 4 r2
STARKEY v PURFIELD 1946 IR 358
STACEY & HARDING v O'CALLAGHAN 1958 IR 320
BOND v HOLTON 1959 IR 302
ANNUAL PRACTICE 1941 17
RSC 1961 O.2 r1
RSC 1986 O.13 r3
RSC 1986 O.37
O'FLOINN PRACTICE & PROCEDURE IN THE SUPERIOR COURTS 1ED 5
COMMON LAW PROCEDURE (IRL) ACT 1853 S6
RULES OF THE CIRCUIT COURT OF JUSTICE 1930 O.2 r7
RULES OF THE CIRCUIT COURT OF JUSTICE 1930 O.15 r3
RULES OF THE CIRCUIT COURT OF JUSTICE 1930 O.16 r1
CCR(IRL) O.23
CCR(IRL) O.25
SUPREME COURT PRACTICE 1999 40
MURDOCH DICTIONARY OF IRISH LAW 4ED "DEBT"
MURDOCH DICTIONARY OF IRISH LAW 4ED "LIQUIDATED DEMAND"
RSC O.1 r3
RSC FORM 2 APPENDIX A
CONNOLLY v TEELING 12 ICLR 29
STEPHENSON v WEIR 4 LR IR 369
Mr Justice Michael Peart delivered on the 18th day of December 2006 :
These proceedings arise out of a motor accident which occurred on the 27th June 1996. On that occasion the defendant was driving a vehicle when uninsured, and a third party sustained personal injuries and other losses. On the 15th July 1997, the third party issued proceedings in the High Court against the defendant, John Hanley and the Motor Insurers" Bureau of Ireland ("the Bureau"), seeking damages for those injuries and losses. A firm of solicitors came on record on behalf of both defendants on the 17th July 1998. The Bureau in due course settled those proceedings and paid over to the third party a sum of €127,170.07 pursuant to its obligations under the MIBI Agreement. The Bureau submits that this was not a voluntary payment, but was made pursuant to its legal obligations.
On the 15th September 1997 the defendant, John Hanley, signed a Mandate Form which states as follows:
a "(A) I consent to the Motor Insurers" Bureau of Ireland taking over and conducting in my name the defence of any claim or action for damages for personal injury made against me arising out of an accident which occurred on the day of 19 (sic)
b (B) The Motor Insurers" Bureau of Ireland will be entitled to make such admissions on my behalf as appear to it to be necessary in the conduct of the proceedings and I undertake to give them all possible assistance and information in the handling of the claim and conduct of proceedings.
c (C) In the event of my having a claim for contribution against any person or party I authorise the Motor Insurers" Bureau of Ireland to prosecute such claim in my name for its benefit.
d (D) [DELETED — see below]
e (E) I understand that the Motor Insurers Bureau of Ireland will where necessary and at its own expense instruct solicitors to act on my behalf."
This Mandate Form has been signed by the defendant, but before signing same he deleted paragraph (D) which reads:
"I hereby accept liability for all sums paid by Motor Insurers Bureau of Ireland in respect of any settlements effected by it or on foot of any award of judgment made arising from the said accident."
The Bureau nevertheless instituted summary summons proceedings on the 30th April 2004 which contains a Special Indorsement of Claim which states:
1. The plaintiff indemnifies uninsured drivers pursuant to an agreement dated the 21st December 1988 and made between the Minister of the Environment of the one part and the Motor Insurers Bureau of Ireland of the other part. The plaintiff has offices at 39, Molesworth Street, Dublin 2.
2. Pursuant to the said agreement ands as a consequence of the defendant executing a mandate the plaintiff agreed in the case of an accident occurring on or about the 27th June 1996 to be liable for the payment of compensation to Peter O'Riordan the victim of this road traffic accident involving the defendant who was an uninsured driver.
3. The plaintiff's claim is for €127,170.07 being money due and owing by the defendant to the plaintiff under and by virtue of the abovementioned mandate agreement whereby the defendant in consideration of the plaintiff paying over to Royal & Sun Alliance Insurance PLC the said sum of €98,921.62 on or about the 15th May 2003 and the said sum of €28,248.45 on or about the 25th September 2003, he authorised the plaintiff to deal with the defence of the above named Peter O'Riordan's claim against him. In breach of agreement the defendant refuses to repay the said monies.
4. Further or in the alternative on or about the 15th May 2003 the plaintiff paid out €98,921.62 and on or about the 25th September 2003 the plaintiff paid out €28,248.45 for the benefit of and on behalf of the defendant and at his request, implied or otherwise.
Particulars
The plaintiff had indemnified the defendant in an action arising out of a road traffic accident in which the defendant was uninsured, in the sum of €127,170.07. This indemnification was granted not only in consideration of an express mandate signed by the defendant dated the 15th September 1997 but in addition as a consequence of the plaintiff's obligations under the said agreement dated the 21st December 1988.
5. In the premises, the defendant became and is liable to repay the said sum to the plaintiff by reason of an implied or express subrogation or otherwise under the principles of recoupment/restitution.
Following the service of these proceedings on the defendant on the 22nd July 2004, an appearance was entered by the defendant's solicitors. Thereafter, as required by Order 37 of the Rules of the Superior Courts, 1986 ("RSC") the plaintiff issued and served a Notice of Motion dated 1st June 2005 seeking liberty to enter final judgment for the amount of €127,170.07, together with interest and costs. That motion came before the Master of the High Court first of all on the return date the 4th October 2005. It seems to have been adjourned until at least the 17th November 2005 since there is a letter dated 14th November 2005 from the defendant's solicitors to the plaintiff's solicitors in which they state:
"Further to recent correspondence herein please note we will not be contesting your application on Thursday 17th November 2005. We will not be in attendance."
Nevertheless, according to the affidavit grounding the present motion, it appears that the Master of the High Court took the view that the claim was not one which could be the subject of a summary summons, and directed that the matter be listed before the President of the High court. On the 30th January 2006 the learned President directed that the present motion be issued and that the defendant be put on notice thereof. The present motion was issued by the plaintiff on the 15th February 2006 and seeks the following reliefs:
2 "1. A declaration that the plaintiff is entitled to pursue its action herein as against the defendant by way of Order 2 of the Rules of the Superior Courts, 1986.
2. Directions as to the joinder of the Minister for Transport as a notice party.
3. Such further and other order or directions as this Honourable Court seems just.
4. Costs."
It is the first of these reliefs which really needs to be addressed in this judgment.
The Court has been informed by Brian O'Moore SC for the plaintiff that it has been agreed between the plaintiff and the defendant that whatever the result of this present application, the Bureau will be discharging the defendant's costs of this application, since it is a matter which the Bureau is anxious to have clarified by the Courts. Henry Hickey SC has appeared on the defendant's behalf.
An averment in the affidavit of John Casey sworn for the purpose of grounding the present motion...
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