Vector Workplace Facility Management v Firstcare Ireland Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 28 June 2022 |
| Neutral Citation | [2022] IECA 146 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 2021/283 |
[2022] IECA 146
Record No.: 2021/283
THE COURT OF APPEAL
Summary judgment – Debt – Arguable defence – Appellant appealing from summary judgment – Whether the High Court erred in failing to grant leave to serve a defence and counterclaim in circumstances where the appellant submitted it had established an arguable defence
Facts: The defendant/appellant, Firstcare Ireland Ltd, appealed to the Court of Appeal from a judgment and order of the High Court (Quinn J) for the plaintiff/respondent, Vector Workplace and Facility Management Ltd, in the sum of €1,192,089.05 together with costs. The appellant appealed on the primary ground that the High Court erred in failing to grant leave to serve a defence and counterclaim, in circumstances where the appellant submitted it had established an arguable defence. The respondent’s claim before the High Court was that the debt represented the sum due to it by the appellant for work done and goods and services provided under the terms of a written services agreement entered into by the parties on the 10th June, 2014. In urging on the Court of Appeal that the appellant had established an arguable defence, counsel made the following submissions: (a) a general point about the danger of granting summary judgment; (b) a claim that the invoices could not be treated as proving the debt; (c) that the appellant’s affidavits were perused more critically than the respondents; (d) that even if some of the appellant’s evidence was hearsay, it was sufficient to establish the necessity for plenary hearing; and (e) that there was a valid counterclaim in existence.
Held by Donnelly J that the High Court gave a detailed judgment in which the legal principles were correctly identified. This appeal was based upon a contention that the High Court had simply gotten the matter wrong and Donnelly J was satisfied that the trial judge did not err in the application of those principles. Donnelly J also considered the final factor identified by McKechnie J in Harrisrange Ltd v Duncan [2002] IEHC 14 which is to be determinative bearing in mind the constitutional basis of a person’s right of access to justice either to assert or respond to litigation, which is the achievement of a just result whether that be liberty to enter judgment or leave to defend as the case may be. Donnelly J was satisfied that the just result in this case was that which the High Court judge found, that is that judgment in the amended sum claimed be granted to the respondent.
Donnelly J dismissed the appeal.
Appeal dismissed.
JUDGMENT of Ms. Justice Donnelly delivered ( ex tempore) on the 28 th day of June 2022
. This is an appeal from a judgment and order of the High Court (Quinn J.) for the plaintiff (hereinafter the respondent) in the sum of €1,192,089.05 together with costs. The defendant (hereinafter the appellant) has appealed on the primary ground that the High Court erred in failing to grant leave to serve a Defence and Counterclaim, in circumstances where the appellant submits it had established an arguable defence.
. The respondent's claim before the High Court was that the debt represented the sum due to it by the appellant for work done and goods and services provided under the terms of a written services agreement entered into by the parties on the 10 th June, 2014. The appellant is the operator of a number of nursing homes and long term care facilities and the respondent provided, under the services agreement, various services such as catering, cleaning, laundry and facilities management services.
. There is no dispute that the services agreement was lawfully terminated by the appellant. In a written notification as required by the agreement Mr. John O'Donnell of the appellant sent a letter to Mr. Ray Taylor, the operations director of the respondent, stating that the reasons “ for terminating the contract are monetary, with a minimum saving of €200,000 per annum and up to €3000,000 per annum achievable with an alternative provider.”
. Agreement between the parties was reached as to early termination and there is no issue on this. Payment was overdue on some matters and another agreement was reached as to a payment plan. A letter was sent on the 7 th April, 2020 from Mr. O'Donnell saying the plan was to pay €500,000 at the end of March (already paid), €500,000 on the 30 th April, €500,000 on the 31 st May and the “ balance on the account estimated to be approximately €500,000 on the 30th June 2020”. The respondent wrote back saying they would prefer if all overdue amounts were paid but said it agreed with the plan. It said that this was however an estimate of the final amount.
. The first two payments of €500,000 were made. Over the weeks following that payment plan, further invoices were delivered. On the 9 th July, 2020 the respondent's solicitors wrote a letter saying they had instructions to commence proceedings for the payment of the sum of €1,192,731.67 unless the amount was paid within seven days. The reply from the appellant's solicitor said that an investigation had been initiated into all matters concerning the totality of the services provided by the plaintiff and into the billing and invoicing of the client.
. The summary summons issued on the 22 nd July, 2020. The matter was entered into the commercial list. The respondent sought summary judgment and a date for hearing was set.
. Each party swore a number of affidavits. Mr. Thomas Neville, the chief financial officer of the respondent, referred to the services agreement and swore that the amount due and owing had been calculated in accordance with that agreement. The other deponent on behalf of the respondent was Mr. Taylor. Mr. O'Donnell, as well as Mr. Mervyn Smith, who is described as the chairman of the appellant, swore affidavits on behalf of the appellant. A further affidavit of a Mr. Keating was placed before the Court by the appellant and I will refer to that further below.
. Quinn J. delivered judgment on the 5 th October, 2021 and it is against that judgment that this appeal lies. His judgment is detailed. It is not suggested that he erred in identifying the correct principles applicable to summary judgments but that he misapplied them.
. The appellant's position was that he had established an arguable defence. In particular the appellant submitted that his affidavit evidence disclosed that: a) the final amount claimed by the respondent in the invoices was higher than expected; b) there were issues with complaints about the services that had been revealed; c) there had not been enough time to deal with the individual invoices which were “ still on [Mr. O'Donnell's] desk”; d) the amount of cleaning supplies had been tripled during the last months; e) they had been told that the respondent had availed of a Government employee Covid scheme but did not credit this to the appellant; and that f) another catering provider had told the appellant that he had been asked to overcharge the appellant by 10%. An affidavit from Mr. Keating, the sub-contractor, was exhibited in the second affidavit of Mr. O'Donnell.
. The High Court judge addressed all matters in holding that despite the extensive reference to findings and reports by various people including the group financial controller, none had sworn an affidavit. This, he said, was a classic case of hearsay which reduced the appellant's objections to the invoices to the level of bare assertions. He also said that while the affidavits were replete with references to an investigation it was nowhere said how long or what form it was to take, or when it would be completed.
. The judge held that the allegation as regards Mr. Keating was not corroborated in the affidavit of Mr. Keating himself.
. The allegation regarding the government Covid scheme was wholly speculative and was made by reference to self-contradictory descriptions by Mr. O'Donnell. There was no denial by the respondent that they had availed of the scheme but that it related wholly to their own sphere of operations. In relation to the issues about the services, he said that termination was the contractual remedy for the appellant's general dissatisfaction or “ sense” of being overcharged. The judge held that while the replying affidavits had at one level the appearance of containing detail, the reliance on general complaints, not substantiated by reference to invoices, is such as to amount to a series of bald assertions which do not go to the validity of the claim in respect of goods and services delivered by the plaintiff.
. In urging on the Court that the appellant had established an arguable defence, counsel made submissions, that can, I believe, be grouped into five main headings:
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a) a general point about the danger of granting summary judgment;
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b) a claim that the invoices could not be treated as proving the debt;
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c) that the appellant's affidavits were perused more critically than the respondents;
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d) that even if some of the appellant's evidence was hearsay, it was sufficient to establish the necessity for plenary hearing;
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e) that there was a valid counterclaim in existence.
. As stated above there was no disagreement between the parties on the law nor was there any submission that the trial judge had failed to identify any relevant principle. If there was a difference in the parties' submissions on the seminal case of Harrisrange Limited v. Duncan [2002] IEHC 14, it was that the appellant stressed point (ix) of McKechnie J.'s formulation of the test which states “ leave to defend should be granted unless it is very clear that there is no defence”, while the respondent stressed point (xi), that “ leave should not be granted where...
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