Starkey v Purfield

• Jurisdiction: Ireland
• Judgment Date: 28 June 1946
• Date: 28 June 1946
• Court: High Court

Starkey v. Purfield.

CHARLES J. STARKEY

Plaintiff

and

LAURENCE PURFIELD

Defendant.

Practice - Summary summons - Indorsement - Sufficiency - Solicitor suing for costs - Amendment of summons - Jurisdiction to amend - Rules of the High Court and Supreme Court, 1926, Or. IV, r. 2; Or. XV, r. 5 -Attorneys and Solicitors (Ir.) Act, 1849 (12 & 13 Vict. c. 53), s. 2.

Plaintiff, a solicitor, issued a summary summons against the defendant claiming the amount of two bills of costs furnished to the defendant. Defendant entered an appearance, but filed no defence. The plaintiff applied for judgment, and the matter was set down for hearing before the Master of the High Court, when it was adjourned. At the adjourned hearing the Master, on the application of the plaintiff, gave leave to amend the summons by averring that the two bills of costs had been duly signed, with liberty to the plaintiff to re-serve the summons when so amended. The Master then adjourned the matter to a subsequent date.

The defendant thereupon applied to the High Court for an order discharging the order of the Master in so far as it purported to permit the plaintiff to amend the summons.

Held that the order made by the Master, being a substantive order for amendment of the summons, was wrong, but on the authority of Caulfield v.Bolger, [1927] I. R. 117, and Seales v. McSweeney, [1944] I. R. 25, the Master would have had jurisdiction to make such an order in conjunction with adjourning the summons for plenary hearing. Accordingly the action was adjourned for plenary hearing as if it had been commenced by plenary summons.

Motion by the defendant for an, order discharging the order of the Master of the High Court made on the 17th day of June, 1946.

The plaintiff, who was a solicitor practising in the city of Dublin, claimed, in a summary summons, payment of a sum of £45 alleged to be due to him by the defendant. The summons was dated the 9th day of April, 1946.

The special indorsement of claim was as follows:—

"The plaintiff's claim is for the sum of £45 being amount due by defendant to plaintiff for professional costs as per particulars hereunder:"—

	"Particulars"
"1945"
"Jan. 26th"	To costs, as per bill furnished on this date	£5 10 0
"July 9th"	,, costs, as per bill furnished on this date	£40 7 0
		----------
		£45 17 0
		----------
"Agreed at £45 0 0."

An appearance to the summons was entered on behalf of the defendant on the 24th of April, 1946, but the defendant subsequently stated in an affidavit that at the time of the service of the summons he was not living within the jurisdiction and was absent at sea serving on a ship, and that he had not at any time seen the summons or had the same in his possession.

No defence having been filed on behalf of the defendant, the plaintiff applied for judgment, and the matter was set down for hearing before the Master of the High Court on the 7th of June, 1946, when it was adjourned to the 17th of June, 1946.

At the adjourned hearing the Master, on the application of the plaintiff, gave leave to amend the summons by averring that the bills of costs had been duly signed, with liberty to the plaintiff to re-serve the summons when so amended.

The Master then adjourned the matter until the 26th of June, 1946.

The defendant now applied to the Court for an...