Prendergast v Biddle

• Jurisdiction: Ireland
• Judge: MAGUIRE C.J.
• Judgment Date: 31 July 1957
• Neutral Citation: 1957 WJSC-SC 1
• Court: Supreme Court
• Date: 31 July 1957

[1957] WJSC-SC 1

SUPREME COURT

Prendergast v Biddle

PATRICK J. PRENDERGAST

v.

ANNE BULLITT BIDDLE (Otherwise ANNE MORE O'FERRALL.)

1 JUDGMENT of MAGUIRE C.J. Delivered 31st July, 1957.

2 The plaintiff in this action has brought proceedings by Summary Summons claiming the sum of £1, 992 for training and maintenance of the defendant's race horse and for moneys paid on behalf of the defendant. The defendant while not disputing the amount of the claim resists judgment being given on the Summary Summons and asks that the matter be adjourned for plenary hearing in order that she may set up a counterclaim for damages which she estimates at £4, 250 for breach of contract in the sale of a half share in a mare called 'Fine Flower'.

3 The learned Judge refused the defendant's application on a number of grounds - (a) that there was no point in common between the claim and the counterclaim (b) that the defendant's application is in the nature of a delaying tactic (c) that if he were to look at the application as a Judge hearing an application under O.XLX r.3, he would exercise his discretion and refuse the permission to the defendant to to avail herself of the permission granted by the rule to set off or counterclaim on the ground that it would "probably be more convenient if the defendant's claim took the form of a separate action." Finally he says that it would be unjust that a plaintiff who is admittedly entitled to judgment should in the absence of special circumstances be delayed in being put into a position to receive such amount by an alleged claim for damages for breach of contract.

4 Mr. Micks contends that prior to the rules of 1926 the defendant would if the plaintiff's action were by writ of summons either generally of specially endorsed be entitled to set up her counterclaim and have it tried out in the pending action. The case of Quinn v. Hession 13 I.L.T.R. 2, is a direct authority for this where the writ was generally endorsed. In that Case the claim was for slander. The Court set aside counterclaims for slander uttered on the sane occasion as the Slanders alleged by the plaintiff but allowed a counterclaim for slanders separate and disconnected on the ground that an estimate can without any disturbing influence be formed on each and in such case it is not inconsistent that both causes of action be tried together. Palles c.3. with whom Dowse B and Fitzgerald B. agreed says - p. 14 - "I am "of opinion that on the true construction of the Judicature Act and the "rules for carrying it into effect any claim of a defendant against a "plaintiff whether connected or disconnected with the original subject "matter of the action can be made the subject of a counterclaim and if it "is embarrassing or inconvenient the only remedy is by applying to strike "it out. This opinion I ground on the Section of he Act and the 22nd "Schedule rule." He then considers the Section and the rule which is in precisely the same terms as r.3 of O.19. Dowse E. says, p.15 "A counterclaim was contemplated to be to all intents and purposes a cross. "action..... a counterclaim being then a cross action is not affected "by considerations which limit claims of set-off end need not therefore "be a jusdem generis with the original action ..... the defendant is "entitled therefore to set up anything by way of counterclaim for which "he might have brought an action against the plaintiff subject to "judicial control on the ground of convenience… The question in "each case is one of justice and propriety and no hard and fast rule "can be laid down".

5 It is to be noted that it was argued in that case that the concluding words of S.3 of Section 27 of the Judicature Act only allowed a counterclaim which was connected with the subject matter of the original action. The Chief Baron rejects that argument and holds that the words in the Section only refer to a case where a relief is sought against other parties as well as against the plaintiff. There was no rule in the Schedule to the Act in the same terms as O. 21 r.12. This rule and the following rules in the Order were obviously introduced to give effect to the power conferred by the sub-section, so far as relates to counterclaims whereby relief is sought against other parties as well as the plaintiff.

6 No change has been introduced by the 1926 rules which makes this case inapplicable where proceedings are brought by plenary summons. To my mind it supports to the full Mr. Mick's argument on this branch of the case.

7 Procedure by way of summary summons was however replaced the old procedure of specially endorsed writ O XIV. Mr. Micks has referred the Court to cases where it was sought to set up a counterclaim where proceedings took this form. Two of these cases are cited in the note in Wylie p.271, that "where a defendant has clearly no defence but sets up a plausible counterclaim judgment should be given in the claim with a stay of execution for whole or part." In the case of these cases: Sheppards & Co., v. Wilkinson & Jervis 6 T.L.R. 13, there was no defence to a claim for moneys advanced. The defendants however set up a counterclaim for breach of certain agreements. The Court allowed judgment to be entered for the plaintiffs but stayed execution until the trial of the counterclaim. The Master of the Rolls said that he would express no opinion on the counterclaim but he would not say that it was absolutely impossible that it should succeed" The application before the Court was for judgment under O.14. In Slater v. Cathcart 8 T.L.R. 92 a similar course was taken when the plaintiff's claim was for costs and the counterclaim set up was for negligence. An order similar to that in Shepperds' Case was made. Court & Sheen 7 T.L.R. 556., is a case which clearly gives support to the proposition of Mr. Micks that even though the claim be admitted or be clear and unanswerable the plaintiff was not entitled to immediate judgment where as here it is only admitted subject to the counterclaim which might turn out to be grater than the plaintiff's claim.

8 There arises however a difficulty owing to the wording of O. 16 r.5 of the rules of 1926 in following the procedure adopted in the Cases just cited. The Court appears only to have power to give judgment for or against the plaintiff or to adjourn the Case for plenary hearing. The concluding words are very wide as they authorise the Court to make "such order for he determination of the question in issue in the action of matter as may seem just". These words do not however, in my opinion, as at present advised, authorise the giving of judgment for the plaintiff on his claim while adjourning the Case for plenary hearing which seems the only course which will permit of the counterclaim being formulated end tried. It is not necessary however to decide this. Even if this be so I am of opinion that a defendant cannot be deprived of the benefit of Section 27 (3) of the Act of 1877 and of Order 19 r.3 end unless it be shown that the trial of the counterclaim would be inconvenient he must be given an opportunity of setting it up.

9 The question therefore arises whether the learned Judge properly exercised his discretion in denying the defendant the right which r.19 (3) confers upon him in the ground of inconvenience. I have already pointed cut that the counterclaim need not be connected with the subject matter of the original action. Therefore this reason for the learned Judge's action does not hold. The other ground is delay. The delay is only the normal delay which must be expected in every case where it is. sought to set up a counterclaim. None of the cases cited support this as amounting to inconvenience.

10 It is true that in Gray & Webb, 21 Ch. D. 802 the Court excluded a counterclaim on the ground that it would unduly delay the action. In his Judgment Kay J. made plain his view that O.XIX r.3 is sufficiently general to allow a counterclaim by way of defence whether or not it is connected with it or of the same character. As however it would have taken a considerable time to verify the particulars and the sum claimed being for £1400 while the counterclaim was only £250 he held that the delay amounted to inconvenience.

11 If ever there was a Case in which Section 27 of the Judicature Act and r.19 (3) should be applied this is one. The real issue between the parties is who is indebted to the other and in what sum. Had the Case been allowed to go to Plenary Hearing it could have been disposed of this Term. No Case is made that there would be any confusion arising on the trial of the action. Obviously it would be confined to the issue on the counterclaim. Accordingly I see no reason for denying to the defendant her right under the Act of 1877 and rule 19 (3) to set up her counterclaim. It is in my opinion only just and proper that she should be given an opportunity to do so. The only way it would seem to do so is to send the Cass for plenary hearing. A term no doubt can be imposed that the defendant will admit on her defence the Plaintiff's claim. There is no need to require her to expedite the trial as once the counterclaim is delivered the plaintiff can see that there is no delay in bringing the action to trail.

12 I would reverse the Order of the High Court and remit the case for Plenary bearing.

13 PRENDERGAST

14 V.

15 BIDDLE.

16 Certified Copy/

17 JUDGMENT of LAVERY J.

18 Delivered 31st July, 1957.

19 Submitted for revision by Lionel J. Winder, Barrister-at-Law, reporting for the Incorporated Council of law Reporting for Ireland.

PATRICK J. PRENDERGAST v ANNE BULLITT BIDDLE LAVERY J. [Maguire J. concurring]

20 The Plaintiff issued and served a Summary Summons on the 19th February 1957, claiming the sum of £1,992. 10.2, for balance due by the Defendant to the Plaintiff for the training keep and maintenance of the Defendant's race horses and for...