Promontoria (Oyster) Designated Activity Company v Fox

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 17 January 2020
• Neutral Citation: [2020] IEHC 12
• Docket Number: 2019 No. 115 SP
• Court: High Court
• Date: 17 January 2020

BETWEEN

PROMONTORIA (OYSTER) DESIGNATED ACTIVITY COMPANY

PLAINTIFF

AND

JOHN FOX

DEFENDANT

[2020] IEHC 12

Garrett Simons J.

2019 No. 115 SP

THE HIGH COURT

Remittal – Jurisdiction – Well charging proceedings – Defendant seeking to have the proceedings remitted to the Circuit Court – Whether the market value of the lands fell within the threshold prescribed under the Third Schedule of the Courts (Supplemental Provisions) Act 1961

Facts: Proceedings were instituted by way of Special Summons in accordance with Order 38 of the Rules of the Superior Courts, seeking to enforce a lien in respect of a debt for which, it was said, the defendant, Mr Fox, was liable to the plaintiff, Promontoria (Oyster) Designated Activity Company. The principal reliefs sought in the proceedings were, first, a well charging order, i.e. an order that the defendant’s interest in certain registered lands is well charged with the payment of all monies due and owing by the defendant to the plaintiff; and secondly, a declaration that there is due and owing to the plaintiff a total sum of €145,918.80. The defendant brought a motion seeking to have the proceedings remitted to the Circuit Court. That application was made on the basis that the market value of the lands fell within the threshold prescribed for proceedings of this type under the Third Schedule of the Courts (Supplemental Provisions) Act 1961. It was said that the Circuit Court has jurisdiction in well charging proceedings, save those where the market value of the lands exceeds €3,000,000.

Held by the High Court (Simons J) that these proceedings had at least the potential to require the determination of legal issues, the significance of which may transcend the facts of the individual case. It seemed to Simons J that these potentially difficult legal issues would benefit from a hearing before the High Court at first instance; the High Court could then prepare a reserved judgment, which judgment would be amenable to an appeal to the Court of Appeal.

Simons J held that the defendant’s application to have the proceedings remitted to the Circuit Court would be refused.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 17 January 2020

INTRODUCTION

1 This judgment addresses a question of procedural law in the context of well charging proceedings. More specifically, the judgment addresses the allocation of jurisdiction as between the High Court and the Circuit Court.

2 The within proceedings have been instituted by way of Special Summons in accordance with Order 38 of the Rules of the Superior Courts. The proceedings seek to enforce a lien in respect of a debt for which, it is said, the Defendant is liable to the Plaintiff. The principal reliefs sought in the proceedings are, first, a well charging order, i.e. an order that the Defendant's interest in certain registered lands is well charged with the payment of all monies due and owing by the Defendant to the Plaintiff; and secondly, a declaration that there is due and owing to the Plaintiff a total sum of €145,918.80.

3 The Defendant has brought a motion seeking to have the proceedings remitted to the Circuit Court. This application is made on the basis that the market value of the lands falls within the threshold prescribed for proceedings of this type under the Third Schedule of the Courts (Supplemental Provisions) Act 1961 (as amended). It is said that the Circuit Court has jurisdiction in well charging proceedings, save those where the market value of the lands exceeds €3,000,000.

4 The Plaintiff, conversely, submits that the Circuit Court's jurisdiction is delimited by the monetary value of the debt underlying the well charging proceedings. It is submitted that if the debt exceeds €75,000, then the Circuit Court cannot entertain the well charging proceedings. In the present case, the debt is said to be in the order of €145,918.80, and thus—on the Plaintiff's argument—is beyond the Circuit Court's jurisdiction. This is so notwithstanding that the Plaintiff agrees that the value of the lands is well below the threshold of €3,000,000 prescribed under the Third Schedule of the Courts (Supplemental Provisions) Act 1961 (as amended).

5 The Plaintiff submits—in the alternative—that even if the Circuit Court does have jurisdiction to entertain the proceedings, the High Court should nevertheless exercise its discretion to refuse an order for remittal. The concerns raised by the Defendant should instead be addressed by way of a differential costs order.

LEGISLATIVE FRAMEWORK

6 It is necessary to consider two aspects of the legislative framework as follows. The first aspect concerns the Circuit Court's jurisdiction, and, in particular, the question of whether that court's jurisdiction in well charging proceedings is confined to cases where the debt asserted is less than €75,000. The second aspect concerns the High Court's discretion to remit proceedings to the Circuit Court. These two aspects are examined under separate headings below.

(i) Circuit Court's jurisdiction

7 The Circuit Court's jurisdiction to entertain well charging proceedings derives from the Courts (Supplemental Provisions) Act 1961 (as amended). Section 22 provides that the Circuit Court shall, concurrently with the High Court, have all the jurisdiction of the High Court to hear and determine any proceedings of the kind mentioned in the Third Schedule to the Act.

8 The Third Schedule sets out the Circuit Court's jurisdiction in various types of cases in tabular form. Column (1) contains a unique reference number. Column (2) identifies the civil proceedings in respect of which concurrent jurisdiction is conferred on the Circuit Court. Column (3) sets out an exclusion of jurisdiction in certain cases. This is subject to the possibility of the parties consenting to jurisdiction pursuant to section 22(1). Column (4) identifies the judges of the Circuit Court by whom the jurisdiction is to be exercised.

9 The parties are agreed that the proceedings come within reference number 19 of the Third Schedule. Columns (2) and (3) of the relevant entry read as follows.

(2) Civil proceedings in respect of which jurisdiction is conferred on the Circuit Court

Proceedings for any of the following purposes—

(a) the redemption of mortgages on land,

(b) the raising of portions or other charges on land,

(c) the sale and distribution of the proceeds of any land subject to any mortgage, lien or charge,

(d) applications under sections 94, 97 (except where the property concerned is subject to a housing loan mortgage), 100 (except where the property concerned is subject to a housing loan mortgage) and 117 of the Land and Conveyancing Law Reform Act 2009.

(3) Exclusion of jurisdiction (except by consent of necessary parties) in certain cases

Where the market value of the land exceeds €3,000,000.

(ii). High Court's discretion to remit

10 The remittal of proceedings from the High Court to the Circuit Court is governed principally by two statutory provisions: (i) section 25 of the Courts of Justice Act 1924, and (ii) section 11(2) of the Courts of Justice Act 1936.

11 Section 25 of the Courts of Justice Act 1924 provides as follows.

25 When any action shall be pending in the High Court which might have been commenced in the Circuit Court, any party to such action may, at any time before service of notice of trial therein, apply to the High Court that the action be remitted or transferred to the Circuit Court, and thereupon, in case the court shall consider that the action is fit to be prosecuted in the High Court, it may retain such action therein, or if it shall not consider the action fit to be prosecuted in the High Court it may remit or transfer such action to the Circuit Court or (where the action might have been commenced in the District Court) the District Court, to be prosecuted before the Judge assigned to such Circuit or (as the case may require) the Justice assigned to such District, as may appear to the High Court suitable and convenient, upon such terms, in either case and subject to such conditions, as to costs or otherwise as may appear to be just:

Provided that the High Court shall have jurisdiction to remit or transfer any action, whatever may be the amount of the claim formally made therein, if the court shall be of opinion that the action should not have been commenced in the High Court but in the Circuit Court or in the District Court if at all.

12 The legal test governing the High Court's discretion to remit proceedings has been modified somewhat by section 11(2) of the Courts of Justice Act 1936 as follows.

(2) Notwithstanding anything contained in section 25 of the Principal Act the following provisions shall have effect in relation to the remittal or transfer of actions under that section, that is to say:—

(a) an action shall not be remitted or transferred under the said section if the High Court is satisfied that, having regard to all the circumstances, and notwithstanding that such action could have been commenced in the Circuit Court, it was reasonable that such action should have been commenced in the High Court;*

(b) an action for the recovery of a liquidated sum shall not be remitted or transferred under the said section unless the plaintiff consents thereto or the defendant either satisfies the High Court that he has a good defence to such action or some part thereof or discloses...