Pietro Macari v Concetta Macari

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 02 February 2022
• Neutral Citation: [2022] IEHC 51
• Docket Number: No. 2020/5182 P
• Year: 2022
• Court: High Court

Between

Pietro Macari

Plaintiff

and

Concetta Macari

Defendant

[2022] IEHC 51

No. 2020/5182 P

THE HIGH COURT

Replies to particulars – Breach of agreement – Mismanagement of estate – Defendant seeking to compel the plaintiff to reply to particulars – Whether the notice for particulars was oppressive

Facts: The plaintiff, Mr Macari, was the son of the defendant, Mrs Macari, who was the personal representative of her deceased husband, the father of the plaintiff. A claim arose out of an agreement alleged by the plaintiff to exist between him and his deceased father. Specifically, it was claimed that, in or about 2009, his father promised him that the plaintiff would be left three units in a commercial development in the deceased’s will. This did not happen and the alleged breach by the deceased of what the plaintiff said was an enforceable agreement was a central complaint in the proceedings. Many other matters predating that alleged agreement were referred to in the pleadings, and a large number of reliefs which did not relate to it were included in the Statement of Claim, including a claim for quantum meruit and/or quantum valebat, and allegations of mismanagement of the estate of the deceased. The defendant applied to the High Court seeking to compel the plaintiff to reply to particulars raised by Notice dated 28 May, 2021. The Notice ran to 30 paragraphs, with the first ten of those containing sub paragraphs, the result being that over 80 separate particulars were raised. The plaintiff took the view that the Notice was oppressive and need not be replied to.

Held by Stack J that while some of the particulars were undoubtedly unnecessary, there was a distinct lack of clarity in the Statement of Claim which had made the majority of the particulars sought appropriate and necessary in order to identify the issues between the parties.

Stack J would not order the plaintiff to reply to paras. 2, 7, 11, or 12 of the Notice for Particulars. Stack J held that the plaintiff was not required to reply to paras. 14-20 of the Notice. Stack J held that the particulars sought at paras. 1, 3, 4, 5, 6, 8, 9 and 10, should all be replied to by way of formal Replies to Particulars. Stack J ordered that the plaintiff reply to paras. 24 and 25. Stack J also ordered the plaintiff to reply to the particulars set out at paras. 21, 22, 23, 26, 27, 28 and 29 of the Notice. Stack J held that the particulars sought at para. 1 (e) and (g), para. 3 (f), and (g), para. 4 (f) and (m), para. 5 (a), and para. 6 (f) were matters of evidence in respect of which replies were not necessary. Stack J would not order further replies to the particulars sought at para. 1 (f), para. 3 (e), para. 4 (i), para. 5 (f), para. 6 (e), para. 8 (e), para. 9 (i), and para. 10 (b).

Replies to particulars ordered.

JUDGMENT of Ms. Justice Stack delivered on the 2nd day of February, 2022.

Introduction

1 This is an application brought by the defendant to compel the plaintiff to reply to particulars raised by Notice dated 28 May, 2021.

2 The Notice runs to 30 paragraphs, with the first ten of these containing sub paragraphs, the result being that over 80 separate particulars have been raised. The plaintiff has taken the view that the Notice is oppressive and need not be replied to. However, I have taken the view that, while some of the particulars are undoubtedly unnecessary, there is a distinct lack of clarity in the Statement of Claim which has made the majority of the particulars sought appropriate and necessary in order to identify the issues between the parties.

3 The plaintiff is the son of the defendant, who is the personal representative of her deceased husband, the father of the plaintiff. The claim arises out of an agreement alleged by the plaintiff to exist between him and his deceased father. Specifically, it is claimed that, in or about 2009, his father promised him that the plaintiff would be left three units in a commercial development in the deceased's will. This did not happen and the alleged breach by the deceased of what the plaintiff says is an enforceable agreement is a central complaint in the proceedings. However, many other matters predating that alleged agreement are referred to in the pleadings, and a large number of reliefs which do not relate to it are included in the Statement of Claim, including a claim for quantum meruit and/or quantum valebat, and allegations of mismanagement of the estate of the deceased.

The pleadings

4 The plenary summons was issued on 17 July, 2020 and 25 different reliefs are claimed in the Indorsement of Claim. However, leaving aside claims to interim or interlocutory relief, interest, costs, accounts and inquiries, and damages on an entirely general basis, there remains 18 reliefs in the general Indorsement of Claim. However, these can be grouped into three broad categories:

• i. Paras. 1 to 7 are reliefs relating to an alleged agreement made in or about 2009 between the plaintiff and the deceased, and/or directed at obtaining the ownership of three units in Tallaght Leisure Centre, Tallaght, Dublin 24, being part of the property comprised in Folio 18765 of the Register, County of Dublin,

• ii. Para. 8 is a claim for quantum meruit and/or quantum valebat,

• iii. Paras. 9 to 18 are all directed to issues relating to the administration of the estate.

5 A Statement of Claim was delivered on 20 January, 2021. Under the heading “Background to and Terms of Agreement” the Statement of Claim refers to three different agreements, one occurring in or about 2000 and set out at para. 6, one being reached in or about 2005, and referred to at para. 9, and one having been concluded, according to the plaintiff, in or about 2009, whereby the deceased agreed to leave him three units in his will. These units are not identified in the Statement of Claim, even though specific performance has been claimed in relation to them. The defendant sought particulars of which units were said to be the subject of this agreement at para. 30 of the Notice and the plaintiff has agreed to identify them.

6 At para. 12 of the Statement of Claim, it is pleaded:

“In breach of the said agreement and despite representations given by the deceased to the plaintiff on numerous occasions, the deceased failed, refused and/or neglected to devise and bequeath the three units in the development to the plaintiff, causing loss, damage and expense to the plaintiff as a result thereof.

7 Under the heading “Particulars of Breach of Agreement and Misrepresentation”, the terms of the deceased's role, and the fact that he died on 29 July, 2018, without leaving the plaintiff three units as the plaintiff alleges he had promised, are set out. Paragraph 17 explicitly pleads that the plaintiff, in accordance with the 2009 agreement, continued to manage the development as agreed with the deceased. At para. 21 of the Statement of Claim, it is then pleaded:

“In the premises, the Deceased was guilty of breach of contract and agreement in failing, refusing and/or neglecting to make the agreed provision for the plaintiff by way of his will and was further guilty of misrepresentation in representing to the plaintiff that he would make the agreed provision, such that for a considerable period of years the plaintiff acted in reliance thereof and to his detriment.”

The 25 reliefs originally contained in the plenary summons are then repeated.

8 Delivery of the Statement of Claim provoked the service of a Notice for Particulars dated 12 March, 2021. On 28 May, 2021, paras. 24 to 30 were added to the Notice for Particulars, and most of these deal with reliefs claimed in the Statement of Claim in respect of which no material facts or cause of action is pleaded. It is on foot of this latter Notice that the motion is brought.

9 In the interim, the defendant had, under threat of a motion from the plaintiff, delivered a Defence dated 1 April, 2021. The...