Omeyemmezu T/A Norlia Recruitment Service v First Care Ireland Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 23 January 2020
• Neutral Citation: [2020] IEHC 36
• Docket Number: [2018/743 S.]
• Court: High Court
• Date: 23 January 2020

BETWEEN

CECELIA OMEYEMMEZU T/A AS NORLIA RECRUITMENT SERVICE

PLAINTIFF

AND

FIRST CARE IRELAND LIMITED, FIRST CARE IRELAND (BLAINROE) LIMITED, FIRST CARE IRELAND (EARLSBROOK) LIMITED, FIRST CARE IRELAND KILCOCK LIMITED, BENEAVIN HOUSE LIMITED, BENEAVIN LODGE LIMITED

DEFENDANTS

[2020] IEHC 36

Hyland J.

[2018/743 S.]

THE HIGH COURT

Summary judgment – Bona fide defence – Liberty to defend – Plaintiff seeking summary judgment – Whether the defendants had identified a bona fide defence

Facts: The plaintiff, Ms Omeyemmezu trading as Norlia Recruitment Service, applied to the High Court for summary judgment against the defendants, First Care Ireland Ltd, First Care Ireland (Blainroe) Ltd, First Care Ireland (Earlsbrook) Ltd, First Care Ireland Kilcock Ltd, Beneavin House Ltd and Beneavin Lodge Ltd, pursuant to O. 37, RSC in the sum of €749,353.40 together with interest due and owing to the plaintiff by the first defendant for services rendered and/or in the alternative of €100,606.14, due and owing by the second defendant, €168,716.99 due and owing by the third defendant, €220,518.31 due and owing by the fourth defendant, €200,326.04 due and owing by the fifth defendant and €59,185.92 due and owing by the sixth defendant, the combined total being €749,326.40 owed to the plaintiff for services rendered to the defendants and/or each of them respectively. Judgment in the amount sought was given by O’Hanlon J on 1st July 2019 in the defendants’ absence, in circumstances where the defendants did not appear due to inadvertence. A motion to set aside that judgment was brought. Ultimately the judgment was set aside by way of an order of Humphreys J of 25th September 2019. Hyland J was charged with the task of considering de novo whether the plaintiff was entitled to summary judgment according to the normal principles applicable to such an application. The primary bona fide defence that had been identified by the defendants was that there were protocols that had been agreed as part of the service level agreement (SLA) whereby it was agreed that with each invoice presented, the plaintiff would provide proof that the relevant staff member was qualified, was registered with the NMBI, and was Garda vetted. It was further asserted it had been agreed that the plaintiff would always have in place a valid tax clearance certificate. The defendants asserted that due to alleged non-compliance with these conditions, they were not obliged to pay on foot of the invoices raised by the plaintiff for 2016 and 2017. There was also a subsidiary defence which was only identified by counsel for the defendants in argument to the effect that the SLA exhibited was not the agreement governing relations between the parties due to it being unsigned, that there was no evidence of the contractual relationship between the plaintiff and the first to fourth defendants and sixth defendant, given that the SLA exhibited only referred to the fifth defendant, and that there was uncertainty in relation to the terms of the contract. Counsel asserted that there was a prima facie defence insofar as there was uncertainty in respect of contractual conditions between the plaintiff and the defendants.

Held by Hyland J that the defendants had established a bona fide defence in respect of the question as to the contractual terms that governed the invoices for 2016/2017. Hyland J held that there was no basis disclosed on the affidavit evidence to support the assertion that protocols in respect of registration, qualification, Garda vetting or tax clearance were part of the contracts, whether the original SLA or a collateral contract or some amendment to the SLA and that the alleged breach of the protocols justifies the non-payment of invoices.

Hyland J held that the application for summary judgment would be refused.

Application refused.

JUDGMENT of Ms. Justice Hyland delivered on the 23rd January 2020

Introduction

1 This is an application for summary judgment against the Defendants pursuant to O. 37, RSC in the sum of €749,353.40 together with interest due and owing to the Plaintiff by the first named Defendant for services rendered and/or in the alternative of €100,606.14, due and owing by the second named Defendant, €168,716.99 due and owing by the third named Defendant, €220,518.31 due and owing by the fourth named Defendant, €200,326.04 due and owing by the fifth named Defendant and €59,185.92 due and owing by the sixth named Defendant, the combined total being €749,326.40 owed to the Plaintiff for services rendered to the Defendants and/or each of them respectively.

2 This case has a somewhat tortured history in circumstances where judgment in the amount sought was given by O'Hanlon J. on 1st July 2019 in the Defendants' absence, in circumstances where the Defendants did not appear due to inadvertence. A motion to set aside that Judgment was brought. Ultimately the Judgment was set aside by way of an Order of Humphreys J. of 25th September 2019. There has been an appeal against the decision of Humphreys J. of 25th November 2019 to refuse the application made by the Plaintiff for the DAR of the hearing which resulted in his decision but the outcome of that appeal cannot affect the decision in this application and therefore I am in a position to give judgment without waiting for that appeal to be determined.

3 Accordingly, one High Court Judge has granted summary judgment in the matter and another High Court Judge has set that judgment aside.

4 I am now charged with the task of considering de novo whether the Plaintiff is entitled to summary judgment according to the normal principles applicable to such an application.

Factual Background

5 The Plaintiff, an individual trading under the business name Norlia Recruitment Service, is involved in the provision and recruitment of temporary/relief staff in the health care sector, and the supply of same to entities such as the Defendants. Five of the Defendants are companies that own and/or operate nursing homes, being the second to sixth named Defendants. The first Defendant is the owner and/or operator of nursing homes and was at all material times responsible for the management of the second to sixth named Defendants.

6 The Plaintiff provided such services to the second to sixth named Defendants from May 2015 onwards up until the end of December 2017. It appears that the services for 2015 were paid for, with some deductions and credit given by the Plaintiff, in circumstances where the Defendants say there was over-charging and the Plaintiff says the deductions/credits were given in the interests of commercial relations. In my view that dispute is not relevant to the matter before me since no monies are sought in respect of services provided in 2015 and therefore I do not need to make a finding on same.

7 What is not disputed is that in respect of services provided by the Plaintiff from the start of 2016 to the end of 2017 i.e. two years, no payment has been made and no invoices discharged by any of the Defendants.

Applicable Law

8 The principles identifying when summary judgment ought to be granted are well-established. In Ulster Bank Ireland Ltd v. Beades [2019] IESC 83, McKechnie J. held that leave to defend should be granted where there is a fair or reasonable probability that a real or bona fide defence exists or that what is averred in the Defendant's affidavit is credible. In Harrisrange Ltd v. Duncan [2002] IEHC 14, McKechnie J. noted that power to grant summary judgment should be exercised with discernible caution. He also noted that leave should not be granted where the only relevant averment in the totality of the evidence is a mere assertion of the situation which is to form a defence. In Aer Rianta cpt v. Ryanair Ltd (No 1) [2001] 4 IR 607, Hardiman J. identified that the Court must ask whether the Defendant's affidavit discloses an arguable defence. In IBRC Ltd. v. McCaughey [2014] 1 IR 749, Clarke J. noted as follows:

“Insofar as facts are put forward, then subject to a very narrow limitation, the court will be required, for the purposes of the summary judgment application, to accept that facts of which the defendant gives evidence or facts in respect of which the defendant puts forward a credible basis for believing that evidence may be forthcoming, are as the defendant asserts them to be. The sort of factual assertions, which may not provide an arguable defence, are facts which amount to a mere assertion unsupported either by evidence or by any realistic suggestion that evidence might be available, or, facts which are in themselves contradictory and inconsistent with uncontested documentation or similar circumstances such as those analysed by Hardiman J. in Aer Rianta”.

9 The above case law makes it clear that there is a low bar for a Defendant to circumvent when it is seeking to have a matter sent to plenary hearing.

Summary of Affidavit Evidence

10 In the Affidavit of Ms. Oneyemmezu sworn on 25th September 2018 grounding the motion for judgment, Ms. Oneyemmezu avers that the services were provided pursuant to a contract in writing dated 23rd May 2015 and she exhibits same together with the terms of business and amended terms at “CO1”. She says at para. 5 that she was first requested to provide staff by the deputy nursing home manager of the fifth named defendant on 22nd May 2015, and that she supplied a staff nurse the following day and other staff and that terms of business were furnished to the fifth named defendant and on 26th May 2015 a meeting was held with Ms. Mary Lloyd, nursing home manager with the fifth named defendant and the signed contract was furnished by Ms. Lloyd to her.

11 She then avers at para. 6 to para. 9 that she concluded agreements to provide the sixth named defendant, the third named defendant, the fourth named defendant and the second named defendant with staff and same was governed by parole...