Rainford and Others v Newell-Roberts

• Jurisdiction: Ireland
• Judgment Date: 31 July 1962
• Date: 31 July 1962
• Court: Supreme Court

Rainford and Others v. Newell-Roberts.

PATRICK RUSSELL RAINFORD, GEORGE HERBERT BOSTON, and WILLIAM EWING GRAHAM

Plaintiffs

and

FREDERICK NORMAN NEWELL-ROBERTS

Defendant.

Private International Law - Foreign judgment - Action in personam in England - Defendant a British subject - Proceedings served outside the jurisdiction of the English Court - Judgment entered in default of appearance - Action brought in Irish jurisdiction on foot of the English judgment - Fact that defendant was a British subject did not amount to submission to jurisdiction of English Court.

On the 10th July, 1957, the plaintiffs were given liberty in England to institute proceedings in personam against the defendant and to serve them outside the jurisdiction of the English Court. The defendant was a British subject who, at that date, and at all times since then, was resident in Ireland. On the 12th July, 1957, the proceedings in the English Court were issued and service of such proceedings was subsequently effected on the defendant in this jurisdiction. The defendant did not appear to the proceedings, in which final judgment was entered for the plaintiffs for the sum of £815 8s. 6d. and £155 18s. 3d. costs, making a total of £971 6s. 9d. The present proceedings were instituted to recover that sum on foot of that judgment. The defendant contended that it could not be enforced as he had not submitted to the jurisdiction of the English Court; the plaintiffs contended that as a British subject he was amenable to that jurisdiction.

Held by Davitt P. that being a British subject did not amount per se to a submission to the jurisdiction of the English Courts, and that as the defendant had not submitted to the jurisdiction of the English Court in the particular proceedings, he could not be sued on foot of the judgment of the English Court in such proceedings.

Summary Summons.

The plaintiffs, Patrick R. Rainford, George H. Boston and William E. Graham, brought proceedings in the High Court (Davitt P.), claiming the sum of £971 6s. 9d. on foot of a judgment for the sum of £815 8s. 6d. and £155 18s. 3d., costs, obtained by them against the defendant, Frederick N. Newell-Roberts, in the High Court of Justice in England. The defendant was a British subject resident in Ireland, and the English proceedings had been served on him in the Irish jurisdiction; he did not enter an appearance or take any step in relation to those proceedings.

Cur. adv. vult.

Davitt P. :—

The facts of the case are not really in controversy and may be briefly summarised as follows: all four parties are medical doctors. Prior to 1948 Dr. Roberts and Dr. Rainford were in practice as partners in or near Birmingham. When the National Health Service came into operation they took Dr. Boston and Dr. Graham into the partnership. The four continued practising in partnership until the 30th September, 1951, when Dr. Roberts left the partnership and came to reside in Oughterard, Co. Galway, where he carries on the Corrib Hotel. The accounts of the partnership for income tax purposes were prepared annually by Mr. Thomas Cotterell who is a Chartered Accountant. He handled the partnership's income tax affairs, settled its liability with the Revenue authorities, and worked out what each partner was liable to pay. The partners themselves settled accounts quarterly when profits were shared subject to adjustment, if necessary, at the end of the year. Such a settlement took place at the end of September when Dr. Roberts was leaving.

Some time prior to 1953 the remuneration of doctors under the National Health Service was increased as a result of what became known as the Danckwerts Award. This had retrospective effect and covered the period from the 1st July, 1948, to the 30th June, 1952. As a result considerable sums became payable to the partners and were paid to them individually by the health authorities concerned. Dr. Roberts' cheques were sent on to him to his Galway address. As a result of these payments the Revenue authorities raised additional "protective" assessments upon the partnership amounting in all to £12,000 with a tax liability of £5,390 odd. Mr. Cotterell dealt with the matter on behalf of the partnership (as it then was) and secured certain adjustments. The amount of tax was eventually agreed between him and the Revenue authorities and he worked out what tax each partner was liable for. Dr. Roberts' share of the tax liability came to £816.

On the 24th November, 1955, Dr. Rainford wrote to Dr. Roberts, informing him that the Revenue authorities were seeking completion of payment of tax on the Danckwerts Award; that Dr. Boston, Dr. Graham and himself, together with a new partner, Dr. Bose, who had replaced Dr. Roberts, had paid £2,800 on account; that Mr. Cotterell had worked out their individual shares; and that Dr. Roberts' share of the liability amounted to £816. He requested Dr. Roberts to send him a cheque for that amount made out to the Commissioners of Inland Revenue. He added that if he received no reply by the 8th December he would assume that Dr. Roberts wished to deal separately with the Commissioners. Dr. Roberts made no reply.

The plaintiffs were pressed by the Revenue Solicitor for payment of the whole balance of tax due, and were advised that the partnership was liable for the tax and would have to pay. They paid and on the 12th October, 1956, Dr. Rainford again wrote to Dr. Roberts, informing him that they had paid, and requesting payment to them of his share, namely, £816. This time Dr. Roberts replied, questioning their authority to pay any income tax on his behalf, and inquiring on whose authority the amount said to be due by him was assessed. He ended by suggesting that they should apply to the Collector of Taxes for a refund of any tax paid on his behalf.

On the 12th July, 1957, the plaintiffs commenced proceedings in the Chancery Division of the High Court of Justice in England by issuing a writ against the defendant, claiming an account of all partnership dealings since the 30th September, 1951, and payment of the amount found due. Liberty to issue and serve this writ out of the jurisdiction on the defendant was granted on the 10th July. The defendant entered no appearance and on the 14th January, 1958, Mr. Justice Danckwerts ordered the account claimed to be taken and that the defendant pay to the plaintiffs their costs of action down to and including his order. The account was accordingly taken in the absence of the defendant. On...