Onyenmezu v Firstcare Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 September 2019
• Neutral Citation: [2019] IEHC 697
• Court: High Court
• Docket Number: [2018 No. 743 S]
• Date: 25 September 2019

[2019] IEHC 697

THE HIGH COURT

Richard Humphreys

[2018 No. 743 S]

BETWEEN

CECILIA ONYENMEZU (TRADING AS NORLIA RECRUITMENT SERVICE)

PLAINTIFF

AND

FIRSTCARE IRELAND LIMITED, FIRSTCARE IRELAND (BLAINROE) LIMITED, FIRSTCARE (EARLSBROOK) LIMITED, FIRSTCARE IRELAND KILCOCK LIMITED, BENEAVIN HOUSE LIMITED

AND

BENEAVIN LODGE LIMITED

DEFENDANTS

Failure to attend court – Inadvertence – Summary judgment – Defendants seeking an order under O. 122, r. 7 extending the time to make an application under O. 6, r. 83 and an order setting aside the judgment and order of the High Court – Whether the failure to attend court was down to mere inadvertence

Facts: The defendants’ solicitor attended the proceedings in this case in the Master’s Court on a number of occasions but through inadvertence failed to attend when the matter came before the High Court. On 1st July, 2019, in the absence of the defendants, Firstcare Ireland Ltd, Firstcare Ireland (Blainroe) Ltd, Firstcare (Earlsbrook) Ltd, Firstcare Ireland Kilcock Ltd, Beneavin House Ltd and Beneavin Lodge Ltd, O’Hanlon J granted summary judgment in favour of the plaintiff, Ms Onyenmezu. Before the High Court was a notice of motion seeking either an order under O. 122, r. 7 extending the time to make an application under O. 6, r. 83 and an order setting aside the judgment and order of O’Hanlon J, or an order to the same effect under the court’s inherent jurisdiction. Pilkington J gave liberty for short service of the motion by order of 9th August, 2019 and stayed the execution of the order in the meantime. Stewart J continued the stay on execution on 15th August, 2019, as did O’Connor J on 12th September, 2019.

Held by Humphreys J that, as Leggatt LJ for the English Court of Appeal emphasised in Shocked v Goldschmidt [1998] 1 All E.R. 372, there is a significant difference between a tactical decision not to attend court compared with failure to attend that is down to mere inadvertence. Having applied the approach of Denning LJ (as he then was) in Hayman v Rowlands [1957] 1 All E.R. 321, Humphreys J held that it was clear that the order should be set aside and that it would be unjust to make any other decision.

Humphreys J held that the appropriate order was an order under the inherent jurisdiction of the court setting aside the judgment and order of O’Hanlon J of 1st July, 2019, and an order re-listing the matter in the Chancery List in early course.

Orders granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 2019

1 The defendants' solicitor attended the proceedings in this case in the Master's Court on a number of occasions but through inadvertence failed to attend when the matter came before the High Court. That solicitor has said on affidavit that this was the first time in 32 years of practice that he had overlooked a date and failed to attend.

2 On 1st July, 2019, in the defendants' absence, O'Hanlon J. granted summary judgment in favour of the plaintiff. Order 36, r. 33 allows six days to apply to set aside a judgment in a plenary action that was obtained in the absence of a party.

3 The defendants' solicitor became aware of the judgment only when a writ of fieri facias was served, which was in late July. He sought agreement to a stay for a limited period of time but that was rejected. He then wrote to the plaintiff's solicitor, expressly drawing attention to the fact that he was on a family holiday in Spain.

4 The plaintiff's solicitor, Mr. John Branigan of Branigan Feddis Solicitors, replied rejecting a postponement of execution even until the defendants' solicitor was back in the country. Mr. Branigan's response should more properly have been to endeavour to prevail on his client to extend the absolute minimum human courtesy, let alone professional courtesy, to allow the defendants' solicitor to enjoy his holiday. He does not appear to have done so but merely took instructions and then wrote a belligerent letter of rejection based on those instructions. It was extremely uncollegiate not to have endeavoured to persuade his client to agree to even a temporary postponement. That extremely unhelpful attitude can't have improved the defendants' solicitor's holiday. The latter returned on 7th August, 2019 and then moved promptly to rectify the position.

5 What is now before the court is a notice of motion seeking either an order under O. 122, r. 7 extending the time to make an application under O. 6, r. 83 and an order setting aside the judgment and order of O'Hanlon J., or an order to the same effect under the court's inherent jurisdiction.

6 The defendants' solicitor's affidavit avers to there being a bona fide defence to the proceedings, and that seems to me to well surmount the test for a bona fide defence based on credible evidence as set out in the caselaw e.g. AIB...