Tom O'Brien and Hilary Larkin v Martin Meehan (Otherwise Martin J. Meehan)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] IECA 205 |
| Docket Number | Appeal Number: 2020/245 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
and
[2021] IECA 205
Whelan J.
Haughton J.
Binchy J.
Appeal Number: 2020/245
THE COURT OF APPEAL
Jurisdiction – Due process – Service of plenary summons – Appellant seeking an order setting aside/vacating an order of the High Court – Whether the High Court judge erred in accepting jurisdiction
Facts: The High Court (Reynolds J), on 8 October 2020, made directions for the exchange of affidavits and adjourned the motion of the respondents, Mr O’Brien and Ms Larkin, to 28 October 2020. The appellant, Mr McNeela, appealed to the Court of Appeal seeking an order setting aside/vacating the order of 8 October 2020. He sought an order dismissing the respondents’ notice of motion for lack/want of jurisdiction and/or due process; an order dismissing the respondents’ plenary summons for lack/want of jurisdiction and/or due process; and, an order instructing “the [respondents’] principal to sit down with the defendant’s representatives with the intent of coming to an agreement which is acceptable to both parties, where genuine attempts will be made to bring an end to the entirety of the herein matter(s).” A key argument by the appellant was that service of the plenary summons was not effected upon him in accordance with the requirements of O. 52, r. 11 and/or O. 9, r. 2(1)(iii) of the Rules of the Superior Courts (RSC) and further that such service should have been effected prior to service of the notice of motion which issued on 30 July 2020. Neither, he asserted, was the said notice of motion with grounding affidavits and all exhibits re-served with the plenary summons and he contended that as a result the High Court lacked the necessary jurisdiction to deal with the notice of motion or make orders pertaining to same, and that the judge ought not to have permitted same to be opened before the court. It was contended that the orders subsequently made on 8 October, 28 October, and 6 November 2020 were likewise tainted and that the judge lacked jurisdiction to make same. As such, it was contended that there was an absence of jurisdiction, that the judge exceeded her jurisdiction, and that the respondents were improperly and unlawfully before the court.
Held by Whelan J that the contention that since the plenary summons was not served on the appellant prior to 29 July 2020, same denied the High Court jurisdiction was entirely groundless and lacked any legal basis. Whelan J held that the appellant had identified no basis for setting aside, vacating or otherwise interfering with the order made by Reynolds J on 8 October 2020; neither was there any valid basis for dismissing the respondents’ notice of motion which issued on 30 July 2020 seeking interlocutory reliefs, nor had any basis been identified for dismissing the respondents’ plenary summons. Whelan J held that the appellant had failed to identify any tangible prejudice or hardship visited upon him by reason of the omission to serve a copy of the plenary summons upon him on 4 August 2020, which oversight was addressed on 11 August 2020. Whelan J was satisfied that the appellant’s presence before the High Court cured any procedural defects with regard to service relevant to the issues before the court on that date. Whelan J was satisfied that the High Court judge had full jurisdiction to deal with the notice of motion on the return date, being 8 October 2020. It appeared to Whelan J that the appellant was raising these procedural points repeatedly for the purposes of delay; he had not engaged with the merits of the claim, or filed an affidavit to address the substantive issues in the grounding affidavits. Whelan J was satisfied that the issues in this appeal were substantially moot and a consideration of the order made on 8 October 2020 could have no practical impact or effect upon the resolution of the plenary proceedings and the interlocutory application that stood adjourned before the High Court for determination in due course.
Whelan J dismissed the appeal and reserved to the High Court a determination of all the outstanding issues.
Appeal dismissed.
Judgment of Ms. Justice Máire Whelan delivered on the 20th day of July 2021
This is an appeal from the order of the High Court (Reynolds J.) of 8 October 2020 wherein the court inter alia made directions for the exchange of affidavits and adjourned the respondents' motion to 28 October 2020. The appellant contends that the High Court judge erred in accepting jurisdiction and making the said order.
The pre-litigation position is that the receiver (the first named respondent) was appointed on 26 February 2020 by Everyday Finance DAC pursuant to powers contained in two deeds of mortgage dated 31 May 2002 and 10 July 2008 over certain assets of the appellant which he held as tenant in common with Martin Meehan, namely, the properties 85 and 86 Amiens Street, Dublin 1, and Units 120, 121, 122, 123, and 124 Waterford Industrial Estate, Co. Waterford. The sums outstanding in respect of the facilities secured by those mortgages appear to have been €1,344,695.86 as of September 2019.
The above entitled proceedings were commenced by way of plenary summons on 27 July 2020. The plenary summons seeks interlocutory orders against the appellant and a co-defendant Martin Meehan (otherwise Martin J. Meehan) including injunctive orders restraining the said defendants from attempting to manage or otherwise interfere with the exercise by the first named respondent of his functions as receiver over certain properties known as Units 120 to 124 Waterford Industrial Estate, Co. Waterford and numbers 85 and 86 Amiens Street in Dublin 1, and seeking further orders in aid of recovery of possession of the said properties.
On 29 July 2020 the respondents applied ex parte to the High Court seeking directions in relation to the issue and service of a notice of motion seeking interlocutory injunctive reliefs. That application was grounded on the plenary summons, the ex parte docket, and affidavits of Eoghan Keyes filed on 28 July 2020, Darren Das filed on 28 July 2020 and Tom O'Brien (the first named respondent) filed on 29 July 2020, together with a draft of the notice of motion. Reynolds J. granted liberty to the first respondent to issue and serve the notice of motion. Same was returnable before the High Court on 8 October 2020. Directions were given for the service of any replying affidavits to the said motion within a period of six weeks from the date of service of the motion and the first named respondent to file thereafter any response within a further period of two weeks.
The court directed that service be effected on the appellant at a specified address in Malahide, Co. Dublin by registered post and by certified post. Further directions were made including that the solicitor on record for the first named respondent write to the defendants to “outline the court's concern regarding the provision of legal advice to them by an entity not known to the court” – an issue not directly relevant in this appeal.
Service of the notice of motion returnable for 8 October 2020 together with the three grounding affidavits and the exhibits thereto was effected under cover of letter of 4 August 2020. It is common case that, through an oversight, the said documentation did not include a copy of the plenary summons. The cover letter is noteworthy in so far as it expressly stated:-
“We will send you the copy court order of Ms. Justice Reynolds made 29 July 2020 once perfected.”
The appellant corresponded with the solicitors for the respondent on 7 August 2020 advising that the motion papers he had received were incomplete and in particular alerting them to the fact that no copy of the plenary summons was included. In response to that communication, under cover of letter of 11 August 2020, a copy of the plenary summons was received by the appellant. He disputes the validity of that service.
It is noteworthy that the said letter of 11 August 2020 also stated:-
“We will send you the copy court order of Ms. Justice Reynolds made 29 July 2020 once perfected.”
In fact, the order of the High Court had been perfected on 5 August 2020.
On 1 September 2020 the appellant communicated by email, reminding the respondents' solicitors of their commitment to send a copy of the order “once perfected”. A further reminder was sent by him on 3 September 2020. Eventually, on 7 September 2020, a copy of the perfected order made on 29 July 2020 was served on the appellant. Under cover of letter of 8 September 2020 the appellant expressed concern that he was thereby prejudiced and he contended, in particular, that his ability to appeal against the said order was impacted in so far as the time permitted under the rules to do so had expired.
On 24 September 2020 the appellant entered a conditional appearance without prejudice to his right to contest the jurisdiction of the High Court.
On 29 September 2020 the appellant issued a notice of motion returnable before this court whereby the appellant sought an order extending the time permitted to file an appeal against the order of Reynolds J. made on 29 July 2020.
On the same day, some days outside the period of six weeks afforded to the appellant to file any replying affidavits by the order of 29 July 2020, the appellant also swore two affidavits; one at 10.13am, the other at 11.42am. They are substantially similar, albeit the latter deposed that “these purported and alleged proceedings of 29/07/2020 are currently before the Court of Appeal also…” (para. 9).
On 8 October 2020 the motion for interlocutory orders was returnable before the High Court. On that date the court struck out the proceedings as against the...
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