Tacit Golf LLP v McDonagh

• Jurisdiction: Ireland
• Judge: Ms. Justice Emily Egan
• Judgment Date: 09 May 2022
• Neutral Citation: [2022] IEHC 434
• Court: High Court
• Docket Number: [2021 4555 P]

Between

Tacit Golf Club LLP

Plaintiff

and

Giles McDonagh and Range King Limited

Defendants

[2022] IEHC 434

[2021 4555 P]

THE HIGH COURT

Judgment in default of defence – Damages – Rules of the Superior Courts (Procedure on Default) 2021 – Plaintiff seeking judgment in default of defence – Whether the court had jurisdiction to make an order for judgment in default of defence

Facts: The plaintiff, Tacit Golf Club LLP, issued a plenary summons claiming damages against the defendants, Mr McDonagh and Range King Ltd, for, inter alia, wrongful interference with contractual rights/business relations and conspiracy to injure the plaintiff. The plaintiff also sought an order for disgorgement of profits and unjust enrichment, an account of profits, and orders restraining the defendants from disseminating the plaintiff’s confidential information and returning same to the plaintiff together with further orders pursuant to the European Union (Protection of Trade Secrets) Regulations 2018 and Directive EU 2016/943. The defendants entered an appearance on 4th May, 2021 and the plaintiff delivered a statement of claim on 3rd August, 2021. Notice for particulars and replies thereto were exchanged on 15th October, 2021 and 15th December, 2021 respectively. On 1st October, 2021, before the commencement date of the Rules of the Superior Courts (Procedure on Default) 2021, S.I. No. 490 of 2021 (the new rules), the plaintiff served a 21-day warning letter requiring the delivery of the defence, consenting to the late delivery of same and indicating that, in default, a motion for judgment in default of defence would issue. It did not appear that the defendants replied to that letter and the plaintiff issued a motion for judgment in default of defence after the commencement date of the new rules on 1st February, 2022. The motion was returnable before the High Court on 25th April, 2022. At the hearing of the motion, the defendants contended that, as O. 27 r. 10 (1) of the new rules provides that no motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract may be served unless the plaintiff has written a 28-day warning letter, the motion ought not to have been issued and the court therefore had no jurisdiction to make an order for judgment in default of defence.

Held by Egan J that the motion for judgment in default of defence was properly issued in this case and that, all things being equal, the plaintiff would be entitled to the relevant orders together with an order for costs. She held that, in this particular case, there was no evidence that the plaintiff complied with O. 27 r. 10 (3) and (4) which provide that the notice of motion shall be served not later than ten days from the date on which it was issued together with a letter specifically drawing the defendants’ attention to the fact that, if the defendants deliver a defence within 21 days and lodges same in the central office, the motion shall not be put into the judge’s list but shall be struck out with the defendants paying the plaintiff the sum of €750 for the costs of the motion for judgment. She noted that no letter had been exhibited by the plaintiff in compliance with this order. In her view, this did not deprive the court of jurisdiction as the relevant provision of the rules clearly contemplates that the motion for judgment may be issued prior to the service of this letter. However, it seemed to her that the plaintiff’s apparent failure to issue this letter meant that it was necessary in the interests of justice to make an “unless order” rather than to grant judgment in default of defence. In addition, she held that she would limit the plaintiff’s costs of the motion to €750.

Egan J made an unless order in the case. She therefore extended the time for the delivery of defence for four weeks and ordered that unless the defence was delivered and a copy thereof filed in the Central Office within that extended period, judgment should be entered for the plaintiff and, thereafter the matter should be set down before the court for the assessment of any damages to which the plaintiff may be entitled and for the determination of any relief other than damages. She awarded the costs of the motion to the plaintiff and further measured those costs in the amount of €750.

Unless order made.

EX TEMPORE JUDGMENT ofMs. Justice Emily Egandelivered on the 9th day of May, 2022

Introduction

1 This ruling concerns the transitional provisions of the Rules of the Superior Courts (Procedure on Default) 2021, S.I. No. 490 of 2021 (“the new rules”) which came into operation on 13th November, 2021. The new rules amend O.27 of the Rules of the Superior Courts (“the previous rules”) which deals with default of pleading.

2 The specific issue arising is whether a 21-day warning letter issued in accordance with the previous rules provides a sufficient basis for the court to make an order for judgment in default of defence in respect of a motion issued under the new rules which now provide for a 28-day warning letter.

Factual background

3 The factual background is straightforward. The plaintiff issued a plenary summons in this case claiming damages against both defendants for, inter alia, wrongful interference with contractual rights/business relations and conspiracy to injure the plaintiff. The plaintiff also seeks an order for disgorgement of profits and unjust enrichment, an account of profits, and orders restraining the defendants from disseminating the plaintiff's confidential information and returning same to the plaintiff together with further...