Pugh v PGM Financial Services Ltd
|Mr. Justice McDermott
|09 December 2016
| IEHC 704
|[2014 No. 8907 P.]
|09 December 2016
 IEHC 704
THE HIGH COURT
[2014 No. 8907 P.]
Contract – Practice & Procedures – O.8, r. 2 of the Rules of the Superior Courts – Renewal of plenary summons – Existence of good reason and balance of hardship
Facts: -The fourth named defendant had filed the present application to set aside the order of the High Court for renewing the plenary summons originally issued in the substantive proceedings and granting liberty to the plaintiff to serve concurrent summons. The fourth named defendant argued that the plaintiff was aware that the fourth named defendant was a company situated outside the jurisdiction of Ireland and thus, the plaintiff had full 12 months for serving the concurrent summons to the fourth named defendant.
Mr. Justice McDermott refused to grant the desired relief to the fourth named defendant. The Court held that the plaintiff should establish that there was a good reason for asking the extension of time period for the service of summons. The Court found that the fourth named defendant was not served at its address in London owing to the mistake on part of the plaintiff's solicitors who sent the copy of summons in Dublin at the registered office of the subsidiary company of the fourth named defendant. The Court, however, stated that the mistake on the part of the solicitor in itself would not be a good reason for the renewal of summons unless supported by circumstances evidencing no foul play on the part of the solicitors. The Court noted that the plaintiff's solicitor took immediate steps to rectify the error of service at the wrong address the moment he came to know of it, which was sufficient enough to warrant an order for extending the time period for the service of summons.
This is an application pursuant to O. 8, r. 2 of the Rules of the Superior Courts to set aside the order of the 11th April, 2016 (Mr. Justice Moriarty) renewing the plenary summons originally issued in these proceedings on the 20th October, 2014 for a period of six months and granting the plaintiffs leave to amend the address of the fourth named defendant as originally stated thereon and an order granting leave to issue a concurrent summons.
In the general indorsement of claim set out on the plenary summons originally issued on the 20th October, 2014 the plaintiffs claimed an order directing the defendants to disclose documents concerning monies invested by them and others in investment funds known as Rowan UK Commercial Property Funds 3 and 4, all income and expenditure received or paid by the Fund and any sums lodged to bank accounts together with monies retained or not invested by the Fund since it's inception. Damages are sought for misrepresentation, breach of contract, negligence and breach of duty, negligent misstatement, breach of fiduciary duty, breach of trust, fraudulent misrepresentation and deceit.
The fourth named defendant, Rowan Asset Management Ltd. is described in the plenary summons as a limited liability company having its registered office at First Floor, Marine House, Clanwilliam Court, Dublin 2. However it is clear from the pleadings and correspondence and it is accepted by both sides that the fourth named defendant is a United Kingdom domiciled company having its registered offices at 25 Bruton Street, Mayfair, London W1J 6QH, England.
The plaintiffs claim arises out of a pension investment product that is said to have lost 50% of its value within six years. It is claimed that the first and second named defendants were investment advisors to the plaintiffs and that the third named defendant was the investment fund trustee. The fourth named defendant is described as the asset manager of the Fund and the fifth named defendant was the auditor thereof. The sixth and seventh named defendants are the insurance providers for the investment fund. Proceedings have been discontinued against the fifth defendant.
On the 16th October, 2015 an attempt was made to serve the plenary summons on ‘The Secretary, Rowan Asset Management Ltd., First Floor, Marine House, Clanwilliam Court, Dublin 2’. A subsidiary of the fourth named defendant known as Rowan Europe Asset Management Ltd. having its registered offices in place of business at the same address replied to the letter enclosing the plenary summons by letter dated 16th November. The letter stated:
‘Rowan Asset Management Ltd. (of which Rowan Europe Asset Management Ltd. is a subsidiary) is domiciled in England and contrary to the information in the Plenary Summons it has its registered office at 25 Bruton Street, London W1J 6QH. Rowan Asset Management Ltd. does not have a registered address, nor does it carry on any business, at Clanwilliam Court, Dublin 2 where the Plenary Summons was sent.
Rowan Europe Asset Management Ltd. had no involvement in the matters referred to in the Plenary Summons and in the circumstances we cannot be regarded as having any role or involvement in the service of the Plenary Summons on Rowan Asset Management Ltd.’
This letter is signed on behalf of Rowan Europe Asset Management Ltd. by a Mr. Nick Jacobs who is described as a UK director of Rowan Europe Asset Management Ltd. Mr. Jacobs has also sworn an affidavit as chief executive officer of the fourth named defendant in these proceedings. The plaintiffs' solicitor deposes that the letter sent by Rowan Europe Asset Management Ltd. on the 16th November, 2015 was misfiled within the solicitor's office and ‘did not come to the writer's attention’.
On the 11th March, 2016 the plaintiffs' solicitor sent a twenty-one day warning letter to the fourth named defendant calling on it to enter an appearance at the Dublin address contained in the plenary summons. A further letter was sent by Rowan Europe Asset Management Ltd. on 22nd March furnishing a copy of its prior letter and confirming that it was a subsidiary of the fourth named defendant and did not wish to have any involvement in the action. It restated the fact that Rowan Asset Management Ltd. was domiciled in England with registered offices as described. It emphasised that the fourth defendant did not have a registered office nor did it carry on any business whatsoever at Marine House, Clanwilliam Court, Dublin 2. It stated that there was no point in the plaintiffs' solicitors writing to the fourth defendant at that address and that Rowan Europe Asset Management Ltd. could not be regarded as having any role or involvement whatsoever in the proceedings initiated by the plaintiffs.
Thereafter on the 11th April, 2016 an ex parte application was made to the High Court grounded on the affidavit of Mr. John Carroll solicitor sworn on the 4th April, 2016 whereby the plaintiffs sought and obtained orders extending the time for the renewal of the plenary summons dated 20th October, 2015 to the 11th April, 2016 and renewing the said summons for a period of six months from that date with liberty to issue a Concurrent Summons against the fourth named defendant and amending it's address to read 25 Bruton Street, Mayfair, London W1J 6QH, England.
Mr. Carroll deposed that he believed that the plenary summons had already been forwarded to the fourth named defendant by the wholly owned subsidiary upon which service had been affected. He also stated that the fourth named defendant was well aware of the plaintiffs' claim from the detailed correspondence that had been exchanged and which was set out in the affidavit. He therefore claimed that reasonable efforts at service had been made within the initial twelve month period after the summons was issued and ‘that in any event there is a good and sufficient reason for the court to make an order renewing the summons’. The court made the order of the 11th April, 2016 pursuant to Order 8, rule 1 of the Rules of the Superior Courts.
The fourth named defendant seeks to set aside this order pursuant to Order 8, rule 2.
Order 8 of the Rules of the Superior Courts provides:
‘1. No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. The summons shall in such case be renewed by being stamped with the date of the day, month and year of such renewal; such stamp to be provided and kept for that purpose in the Central Office and to be impressed upon the summons by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in the Form No. 4 in Appendix A, Part I; and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.
2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at...
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