Parkborough Ltd t/a The Mortgage Advice Shop v Kelly and Another

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 26 November 2008
• Neutral Citation: [2008] IEHC 401
• Docket Number: [No. 2233 P/2006]
• Court: High Court
• Date: 26 November 2008

Parkborough Ltd (t/a Mortgage Advice Shop) v Kelly & Rea Mortgage Services Ltd (t/a Rea Mortgage Choice)

BETWEEN

PARKBOROUGH LIMITED T/A THE MORTGAGE ADVICE SHOP

PLAINTIFF

AND

MARIA KELLY

AND

REA MORTGAGE SERVICES LIMITED T/A REA MORTGAGE CHOICE

DEFENDANTS

[2008] IEHC 401

[No. 2233 P/2006]

THE HIGH COURT

PRACTICE & PROCEDURE

Remittal

Jurisdiction of court to remit or transfer - Costs - Plenary action seeking injunctive relief and damages initiated in High Court - Defendant sought remittal of matter to Circuit Court - Ascertainable damages fell within jurisdiction of Circuit Court - Whether alleged damage warranted proceedings being instituted in High Court - Whether reasonable to initiate action in High Court - Costs - Discretion - Whether issue of costs of proceedings should be left to Circuit Court Judge following remittal - Whether High Court had jurisdiction to make order as to costs before plenary action concluded - Normal practice - Rule that costs follow the event - McEvoy v Fitzpatrick [1931] IR 212 considered - Courts of Justice Act 1924 (No 10), s 25 - Courts of Justice Act 1936 (No 48), s 11(2) - Rules of the Superior Courts 1986 (SI 15/1986) O 49, r 7, O 99, r 1(4) - Proceedings remitted to Circuit Court, costs of both sides reserved (2006/ 2233P - Laffoy J - 26/11/2008) [2008] IEHC 401

Parkborough Ltd v Kelly

Facts: The plaintiff sought by way of notice of motion an order that it was reasonable that the plaintiff’s action was brought in the High Court notwithstanding the fact that ascertainable damages fell within the jurisdiction of the Circuit Court, such further order in relation to costs as was appropriate and if necessary an order remitting the matter to the Circuit Court. This application arose out of proceedings in which the plaintiff sought injunctive relief against the defendants (the first defendant being a former employee of the plaintiff) and claimed damages also. Prior to the initiation of these proceedings certain undertakings were provided by the defendant in relation to the use of confidential information and client lists. However, those undertakings were provided without any admission of liability or wrongdoing whatsoever and the defendants reserved the right to deal with, trade or enter into business relations with any persons or corporation who approached them. The plaintiff contended that an order should be made awarding the costs of the proceedings to date as High Court costs to the plaintiff against the defendants, if the Court was satisfied that it was reasonable for the plaintiff to have instituted proceedings in the High Court. The defendants also sought costs at that stage.

Held by Laffoy J. in remitting the matter to the Circuit Court: That the contest between the parties in this case was ongoing and upon remittal of the matter to the Circuit Court would be determined after a full plenary hearing in that Court. Consequently, this Court had no jurisdiction to award costs to either party. While not making a formal declaration to the effect, it was reasonable for the plaintiff to have initiated proceedings in the High Court due to the fact that the primary relief sought was injunctive relief. The matter was remitted to the Circuit Court with the question of costs, including the costs of this application to be reserved.

Reporter: L.O’S.

COURTS OF JUSTICE ACT 1924 S25

COURTS OF JUSTICE ACT 1936 S11(2)

RSC O.49 r7

RSC O.99 r1(4)

M'EVOY v FITZPATRICK 1931 IR 212

DELANY, MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARA 8.12

COURTS OF JUSTICE ACT 1936 S11(2)(A)

Miss Justice Laffoy

1 The application before the Court is on foot of a notice of motion in which the plaintiff seeks the following reliefs:-

2 (1) an order that it was reasonable that the plaintiff's action be brought in the High Court notwithstanding the fact that ascertainable damages fall within the jurisdiction of the Circuit Court;

3 (2) such further or consequential order in relation to costs as may be appropriate; and

4 (3) if necessary and without prejudice to the reliefs sought above, an order remitting the matter to the Circuit Court.

5 The unusual nature of the application is revealed when the sequence of events which preceded it is outlined.

6 When these proceedings commenced the plaintiff and the second defendant were competitors for mortgage broking business in Waterford. The first defendant was an employee of the plaintiff for a period during 2003 and from July 2004 to 22^nd March, 2006 when she handed in her notice because she had been "headhunted" by the second defendant.

7 Prior to the initiation of these proceedings the plaintiff's solicitors by letters dated the 4^th May, 2006 wrote to both defendants alleging wrongdoing on the part of both in exploiting the plaintiff's client base and seeking undertakings to:-

8 (1) return all of the plaintiff's property (whether in hard copy or computer format) taken by the first defendant on or since her departure from the plaintiff, including the list of persons canvassed, solicited or approached for the purposes of obtaining mortgages for them,

9 (2) furnish the plaintiff with a list of all information and/or documentation concerning the plaintiff's business, finances, dealings, transactions or other affairs disclosed and/or divulged since or on the first defendant's departure from the plaintiff,

10 (3) cease and desist from utilising or exploiting in any manner whatsoever the plaintiff's confidential information,

11 (4) observe all common law duties of confidentiality to the plaintiff, and

12 (5) furnish a list of all the plaintiff's customers whom the defendants or their servants or agents or anyone acting in concert with them had contacted with a view to providing mortgage brokerage services and provide the plaintiff with copies of all such correspondence.

13 By letter dated 9^th May, 2006, Messrs. O'Mara Geraghty McCourt (the defendants' solicitors) responded on behalf of the defendants denying the alleged wrongdoing and stating that the question of giving undertakings did not arise.

14 The proceedings were commenced by plenary summons which issued on 24^th May, 2006. The primary relief claimed by the plaintiff was injunctive relief framed in such a way as to give effect to the substance of the undertakings which had been sought. Damages were also claimed. In the statement of claim, which was delivered on 25^th July, 2006, special damages were itemised at €5,125. A defence was delivered on behalf of both defendants on 23^rd January, 2006 following a motion for judgment in default. The substance of the defence amounted to a traverse of all of the plaintiff's allegations of wrongdoing. Discovery was exchanged between the parties.

15 Subsequently, by letter dated 30^th April, 2008, the defendants' solicitors wrote to the plaintiff's solicitors giving an undertaking on behalf of the defendants and each of them. The undertaking was expressed to be given "without any admission of liability or wrongdoing...