Substitution Of Plaintiffs

Author:Mr Gearóid Carey
Profession:Matheson
 
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Introduction

In Waldron v Herring1 the High Court set out when it would allow a non-party to proceedings to be joined as a plaintiff (whether as a co-plaintiff, in addition to the existing plaintiff, or as sole plaintiff, in substitution for the original plaintiff) on the foot of an assignment agreement. Such orders can be made only in specific circumstances, but the court was satisfied that this was one such case. In reaching its conclusion, and in considering the objections raised by the defendants, the court helpfully recited the law relevant to such applications.

Background

The plaintiff was the registered owner of a business premises adjacent to a busy public road. On two separate occasions, within months of each other, the building was struck by vehicles and damaged. The plaintiff sued various defendants, seeking to hold them jointly and severally liable for the damage caused to his building in both incidents. The court noted that this was the correct approach for the plaintiff to take, as the court would have to attribute damage proportionately between the defendants on the basis of the evidence.

The plaintiff had borrowed money from a bank, Permanent tsb, from which a charge (security) was registered against the property in favour of the bank. The plaintiff ran into financial difficulty after the building was damaged. He was sued by the bank and had a substantial judgment recorded against him. The bank enforced its security and took possession of the property, becoming full legal owner in actual possession of the property.

The property was in a dangerously damaged state and the local council directed the bank to repair it, which it did. However, the bank wished to recover the costs of doing so and asked the plaintiff if he was prepared to consent to a High Court application to substitute the bank as a plaintiff in the present proceedings. The plaintiff agreed and, subject to terms, confirmed his agreement to the bank's application in writing. However, the master of the High Court declined the bank's application on the basis that the letter did not give the bank sufficient standing and that a valid assignment of the plaintiff's cause of action in favour of the bank was required. By the time the matter came before the High Court on appeal, a formal assignment agreement had been executed, by which the plaintiff purported to assign his right to the action in its entirety to the bank and to cede all recoveries that might be made to the...

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