Ulster Bank Irl Ltd v Sheehan & Howley t/a Aaron Kelly & Company Solicitors
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony Hunt |
| Judgment Date | 08 December 2014 |
| Neutral Citation | [2014] IEHC 612 |
| Court | High Court |
| Date | 08 December 2014 |
[2014] IEHC 612
THE HIGH COURT
RSC O.19 R.6
CAINES (DECEASED), IN RE 1978 2 ALL ER 1 1978 2 All ER 1
UNISOFT GROUP LTD (No 3), IN RE 1994 1 BCLC 609
DUCKWORTH v M'CLELLAND 1878 2 LR IR 527
MASTERSON v SCALLAN 1927 IR 453 1927 61 ILTR 157
SAUNDERS LAW OF PLEADING & EVIDENCE IN CIVIL ACTIONS 1828 41
HALSBURY'S LAWS OF ENGLAND VOL 15 PARA 334
CUNNINGHAM v HEALTH SERVICE EXECUTIVE & MONAGHAN CO COUNCIL UNREP HEDIGAN 29.3.2011 2011/10/2258 2011 IEHC 124
DORAN v THOMAS THOMPSON & SONS LTD 1978 IR 223 1979 113 ILTR 93
KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267
RYANAIR LTD v BRAVOFLY & TRAVELFUSION LTD UNREP CLARKE 29.1.2009 2009/50/12462 2009 IEHC 41
SHEPPERTON INVESTMENT CO LTD v CONCAST (1975) LTD UNREP BARRON 21.12.92 1993/5/1393
RSC O.38 r9
KROPS v IRISH FORESTRY BOARD LTD & RYAN 1995 2 IR 113 1995 2 ILRM 290 1995/9/2649
WOORI BANK & HANVIT LSP FINANCE LTD v KDB IRELAND LTD UNREP CLARKE 17.5.2006 2006/59/12499 2006 IEHC 156
CROKE v WATERFORD CRYSTAL LTD & IRISH PENSIONS TRUST LTD 2005 2 IR 383 2005 1 ILRM 321 2004/11/2418 2004 IESC 97
AER RIANTA INTERNATIONAL CPT v WALSH WESTERN INTERNATIONAL LTD 1997 2 ILRM 45
NATIONAL IRISH BANK LTD v GRAHAM 1995 2 IR 244 1994 2 ILRM 109 1994/5/1515
RSC O.19
RSC O.20
RSC O.38 r8
RSC O.20 r6
O'LEARY v MIN FOR TRANSPORT & ORS 2001 1 ILRM 132 2000/14/5482
DPP v CORBETT 1992 ILRM 674 1992/6/1756
SMITH v CROPPER (T/A HS CROPPER & CO) 1884 26 CH 700
BOWER v MAXWELL UNREP EWCA CIV 8.5.1989 (UK)
Special Summons – Loss Suffered - Compensation – Compliance – Loan Facility – Costs – Notice of Motion
Facts: The plaintiffs claim in this case was for an order directing the defendants to comply with two undertakings given in September and October 2004. There was also a further or alternative claim for compensation of the plaintiff by the defendants, pursuant to the inherent jurisdiction of the Court, for loss suffered as a result of the alleged failure of the defendants to comply with the terms of these undertakings. The defendants entered an Appearance on 21 October 2013 and a Notice of Change of Solicitor on 19 November 2013. The Court had to decide whether to grant the relief sough on the defendants Notice of Motion.
Held by Justice Hunt that the relief sought on the defendants Notice of Motion would be refused. The Court was satisfied that the plaintiff was entitled to deliver the Points of Claim in its existing form without permission of the Court, as that claim was formulated and delivered at a proper time pursuant to court order. It was further stated that the affidavits initially sworn by Mr. Cotter did not operate as a form of admission or estoppel. Consequently, there was no rule or procedure preventing the plaintiff from delivering that pleading, or pursuing the claims made therein. It was further stated that, the plaintiff was entitled in plenary proceedings to put forward all reasonable formulations of the claim based on the breach of undertaking initially alleged in the special summons, in order to ensure that the court would be in a position to ultimately determine the real question in controversy between the parties. The defendants were similarly deemed to be in a similar position to challenge the plaintiff on all issues as they were previous to the delivery of the Points of Claim. Additionally, it was reasoned that there were no grounds upon which pleadings should be struck out based on any circumstances of unfairness, or of oppression of the defendants by the plaintiff. Consequently, relief was refused and the plaintiff”s costs were reserved to the trial judge. The defendants were given eight weeks to lodge any amended defence and/or lodgement, with two weeks for the plaintiff to reply.
The plaintiff's claim in this case, as set out in the special summons dated 24 July 2013, is for an order directing the defendants to comply with two undertakings given in September and October 2004. There is also a further or alternative claim for compensation of the plaintiff by the defendants, pursuant to the inherent jurisdiction of the Court, for loss suffered as a result of the alleged failure of the defendants to comply with the terms of these undertakings. The defendants entered an Appearance on 21 October 2013 and a Notice of Change of Solicitor on 19 November 2013.
The first grounding affidavit of Sean Cotter was sworn on 28 October 2013. That deposes to the provision of a loan facility in February 2004 to Dunleer Grove Limited in the sum of €1,250,000, to facilitate the purchase of the Grove Hotel, Dunleer for €1,500,000. This company was represented by the defendants in connection with these transactions. The funds were released in October 2004 on foot of undertakings by the defendants to produce unqualified good marketable title to the property. The defendants furnished a Report and Certificate of title in this respect in October 2009.
This affidavit asserts that the title to the property was defective, resulting in a diminution of the market value of €100,000, that the Deed of Mortgage pre-dated the Deed of Transfer and that the borrowers and purchasers of the property were incorrectly specified as Michael and Caitriona McClelland. A liquidator was appointed to Dunleer Grove Limited in April 2009, who sold the property in November 2010, at a price resulting in the loss to the plaintiff alleged above. The alleged liability of the defendants to the plaintiff consequent on the alleged breach of undertaking was specifically cited in paragraph 12 of this affidavit as €100,000.
This affidavit was replied to by that of Sean Sheehan of 10 December 2013. This does not deny the existence of the undertakings but denies the breach alleged by the plaintiff. He sets out an extensive account of the conveyancing history of these transactions, and deposes that the plaintiff was aware at all times of relevant developments. These matters may become highly relevant at a future stage of the proceedings, but the details are not germane to the current dispute between the parties.
At paragraph 14, Mr Sheehan clearly asserts that the losses claimed by the plaintiff arise not from any breach of undertaking, but from a simple fall in property values over the relevant period. Paragraph 19 also asserts that any reduction in market value could also be attributed to the dilapidated state of the premises at the time of sale at the end of 2010. Paragraph 21 deals with a specific aspect of the alleged defects in title at this time, described as a mapping issue, with a limited consequential requirement of a small amount of additional investigation and expense.
A second affidavit was sworn on behalf of the plaintiff on 17 February 2014 by Mr Cotter, in reply to that of Mr Sheehan. This takes issue with various assertions made by Mr Sheehan in his affidavit. Paragraph 10 of this document refers back to the initial grounding affidavit and repeats the claim for consequential loss to the plaintiff in the sum of €100,000.
A further replying affidavit was filed on behalf of the defendants, dated 26 March 2014, by Eileen Dowling, one of the purchasers of the property from the liquidator in December 2010. She sets out an account of her recollection of the purchase of the property. At paragraph 7, she states that the reason why the purchasers offered €200,000 to the liquidator had nothing to do with fundamental problems with title, licence or planning permission, but was due to the extremely poor condition of the property, remediation of which required expenditure by the purchasers in the sum of €150,000.
By co-incidence or otherwise, the summons was listed before the Master of the High Court on the date of the swearing of Eileen Dowling's affidavit on 26 March 2014. The Master struck out the summons with an order for costs in favour of the defendants. By Notice of Appeal dated 1 April 2014, the plaintiff appealed from the Master's order to the High Court. By order dated 12 May 2014, Mr. Justice Keane discharged the order of the Master and adjourned the motion to 23 June 2014.
The special summons came on for hearing before Mr. Justice Gilligan on 14 July 2014, pursuant to the Notice of Appeal. The order recites that having heard counsel for both sides and on reading the Special Summons, the learned judge adjourned the action to plenary hearing as if commenced by Plenary Summons, subject to a timetable set out therein for the exchange of pleadings and particulars. The motion was further adjourned to 15 October 2014, for mention in relation to any discovery issues.
The plaintiff delivered Points of Claim pursuant to the order of Gilligan J. on 25 July 2014. The defendants required particulars arising from the Points of Claim by notice dated 27 August 2014. These were replied to by the plaintiff on 19 September 2014. The defendants delivered Points of Defence to the Points of Claim on 26 September 2014.
The exchange of the Points of Claim and Points of Defence caused the issue by the defendants of the Notice of Motion under consideration. This is dated 10 October 2014, and seeks the following relief at paragraph 1:-
"An Order striking out (i) all of Paragraph 9 of the Plaintiff's Points of Claim delivered on 25 th day of July 2014 and (ii) so much of Paragraph 10 thereof as should allege particulars of loss or damage herein in excess of €100,000, that is, for abuse of process and all and each of the further and/or special objections...
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