Waldron v Herring and Others

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date28 June 2013
Neutral Citation[2013] IEHC 294
CourtHigh Court
Docket Number[2011 No. 2644P]
Date28 June 2013
Waldron v Herring & Ors
APPROVED
Mr. Justice Edwards
JUDGMENT

Between

TONY WALDRON
PLAINTIFF
-AND-
ANDREW HERRING, STEPHEN MULLEN, SLIGO HAULAGE & DISTRIBUTION LIMITED AND TOMMY MULLEN TRADING AS MULLEN EXPRESS TRANSPORT
DEFENDANTS

[2013] IEHC 294

Record Number: 2644P/2011

THE HIGH COURT

PRACTICE AND PROCEDURE

Third party

Statute of limitations - Inordinate and/or inexcusable delay - Interpretation of Statute of Limitations 1957, s 11(2) - Concurrent wrongdoers - Whether claim for contribution from concurrent wrongdoer separate cause of action - Limitation period to bring claim for contribution - Whether third party proceedings issued as soon as reasonably possible - Date of knowledge of alleged cause of action - Board of Governors of St Laurence's Hospital v Staunton [1990] 2 IR 31 and Gilmore v Windle [1967] IR 323 applied - Staunton v Toyota (Ireland) Ltd (Unrep, Costello J, 15/4/1988); Buckley v Lynch [1978] IR 6; Neville v Margan Ltd [1988] IR 734; Moloney v Liddy [2010] IEHC 218, [2010] 4 IR 653 and McElwaine v Hughes, (Unrep, Barron J, 30/4/1997) approved - Gallagher v ACC Bank plc t/a ACC Bank [2012] IESC 35, [2012] 2 IR 620 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 16 r 1 - Statute of Limitations Act 1957 (No 6) , s 11 - Civil Liability Act 1961 (No 41), ss 21, 22, 27 and 31 - Statute of Limitations (Amendment) Act 1991 (No 18), s 3 - Application refused (2008/7770P - Kearns P - 13/07/2012 ) [2012] IEHC 294

Kennedy v O'Sullivan

PRACTICE AND PROCEDURE

Parties

Joinder - Substitution of plaintiff - Assignment of right of action - Whether non-party can be substituted as plaintiff in proceedings - Chose in action - Validity of assignment - Statutory requirements for assignment of right of action - Absence of valuable consideration - Whether assignment valid - Whether valuable consideration necessary for valid assignment -Doctrine of subrogation - Unjust enrichment - Champerty -Whether doctrine of subrogation should apply - Whether plaintiff unjustly enriched -Whether arrangement between plaintiff and non-party champertous - O'Rourke v Considine [2011] IEHC 191, (Unrep, Finlay Geogheghan J, 10/5/2011) and Boscawen v Bajwa [1996] 1 WLR 328 followed - Law Society of Ireland v O'Malley [1999] 1 IR 162 applied - Fincoriz SAS Di Bruno Tassan Din e C v Ansbacher and Co Ltd (Unrep, Lynch J, 20/3/1987); Highland Finance (Ireland) Ltd v Sacred Heart College of Agriculture [1998] 2 IR 180; [1997] 2 ILRM 87 (HC); [1992] IR 472; [1993] 1 ILRM 260 (SC); Kennemerland v Montgomery [2000] 1 ILRM 370; Orakpo v Manson Investments Ltd [1978] AC 95; Southern Mineral Oil Ltd v Cooney (No 2) [1999] 1 IR 237; Thema Intl Fund v HSBC Inst Trust Services (Ireland) [2011] IEHC 357, [2011] 3 IR 654 and Three Rivers District Council v Bank of England [1996] QB 292 considered - Rules of the Superior Courts 1986 (SI 15/1986) O 15, rr 2 and 13 - Statute of Frauds (Ireland) Act 1695, s 6 - Supreme Court of Judicature (Ireland) Act 1877, s 28 (6) - Non-party bank substituted for plaintiff (2011/2644P - Edwards J - 28/6/2013) [2013] IEHC 294

Waldron v Herring

These proceedings concerned a motion brought by a non-party, Permanent tsb plc ('the Bank'), who sought to be joined as either a co-plaintiff or as the sole plaintiff in substitution for the existing plaintiff pursuant to either O. 15 r. 2 or O. 15 r. 13 of the Rules of the Superior Courts. The overall proceedings were brought against the defendants as a result of two separate incidents on the 10th July 2008 and the 1 st December 2008 where the defendants" vehicles crashed into the plaintiff"s building, which was located beside a busy public road, thereby causing damage. The plaintiff"s claim was that this damage was caused by the defendants" negligence.

The basis of the Bank"s motion was that it had obtained a court order for possession of the relevant building on the 22 nd March 2011 with full legal ownership being acquired on the 25 th August 2011. The Bank had been able to obtain such ownership by enforcing a security on the building which was given by the plaintiff in consideration of a loan advanced the Bank and which went unpaid when the plaintiff ran into financial difficulties. When the Bank acquired the building, they noticed that the damage had not been repaired and so the necessary repairs were subsequently arranged and completed. The Bank"s motion was therefore to enter proceedings so the cost of the repairs could be recovered, with the plaintiff agreeing to provide a letter consenting to the motion as a result of an agreement he had reached with the Bank whereby the latter would pay his engineer"s fees and legal costs. The application was refused by the Master of the High Court in the first instance who felt a valid assignment of the plaintiff"s chose of action in favour of the Bank was required. The Master"s order was appealed to the High Court. In preparation for this, the plaintiff executed a document for the Bank purporting to assign his right of action.

The defendants argued that neither O. 15 r. 2 nor O. 15, r. 13 of the Rules of the Superior Courts allowed the Bank to enter the current proceedings, and that if a valid assignment of action had been made, the Bank was only entitled to institute separate proceedings of its own. It was also claimed that the assignment of the action was invalid for want of consideration.

Held by Edwards J that section 28(6) of the Judicature Act allowed an assignment of the legal right to a debt or other legal chose in action to an assignee. In order to do so validly, the case of O"Rourke v. Considine [2011] IEHC 191 decided that the assignment had to be a debt or other legal chose in action; the assignment must be absolute; it must be in writing; and the debtor must be given express notice in writing of the assignment. Applying these rules to the facts, it was clear they had been complied with. The same case also made it clear that an assignment did not need valuable consideration to be valid. The assignment was therefore declared valid.

However, it was held that allowing the Bank to be joined as a co-plaintiff pursuant to O. 15 r. 2 of the Rules of the Superior Courts was inappropriate as that was seen to apply to situations where the wrong plaintiff has been named as a result of a bona fide mistake. O. 15 r. 13 of the Rules of the Superior Courts was considered to be more flexible and was drafted to ensure a court could effectively adjudicate on proceedings. It was determined to be in the interests of justice to accede to the Bank"s motion as it felt that a wrongdoer should be prevented from escaping liability as a result of a legal or technical reason. The Bank was therefore substituted for the plaintiff in the proceedings

Motion approved

RSC O.15 r2

RSC O.15 r13

SUPREME COURT OF JUDICATURE (IRL) ACT 1877

SUPREME COURT OF JUDICATURE (IRL) ACT 1877 S28(6)

O'ROURKE v CONSIDINE UNREP FINLAY GEOGHEGAN 10.5.2011 2011/42/12056 2011 IEHC 191

LAW SOCIETY OF IRELAND v O'MALLEY 1999 1 IR 162 1998 2 ILRM 531 1998/23/9015

STATUTE OF FRAUDS (IRL) ACT 1695

BOSCAWEN v BAWJA 1995 4 AER 769 1996 1 WLR 328

ORAKPO v MANSON INVESTMENTS LTD 1977 3 AER 1 1978 AC 95

HIGHLAND FINANCE v SACRED HEART COLLEGE OF AGRICULTURE 1998 2 IR 180 1997 2 ILRM 87 1997/4/1200

THEMA INTERNATIONAL FUND PLC v HSBC INSTITUTIONAL TRUST SERVICES (IRL) 2011 3 IR 654 2012 1 ILRM 250 2011/47/13324 2011 IEHC 357

SOUTHERN MINERAL OIL LTD (IN LIQUIDATION) & SILK OIL (IRL) LTD (IN LIQUIDATION) v COONEY & FLAHERTY (NO 2) 1999 1 IR 237 1998 2 ILRM 375 1998/31/12345

B v KENNEMERLAND GROEP v MONTGOMERY & FITZPATRICK T/A THOMAS MONTGOMERY & SONS 2000 1 ILRM 370 2000/11/4287

THREE RIVERS DISTRICT COUNCIL & ORS v GOVERNOR & CO OF THE BANK OF ENGLAND

1995 4 All ER 312 1996 QB 292 1995 3 WLR 650

FINCORIZ SAS v ANSBACHER & CO LTD UNREP LUNCH 20.03.1987 1987/2/592

1

JUDGMENT of Mr. Justice Edwardsdelivered on the 28th day of June 2013

Introduction:
2

This matter comes before me as a motion in the Common Law Motion List where the moving party is at this point in time a non-party to the proceedings, i.e. Permanent tsb plc (hereinafter "the bank"), but who seeks to be joined to the proceedings either as a co-plaintiff in addition to the existing plaintiff, or as sole plaintiff in substitution for the existing plaintiff.

3

The application is made pursuant to O. 15 r. 2; alternatively pursuant to O. 15, r. 13 of the Rules of the Superior Courts. The motion was brought before the Master of the High Court in the first instance, and the Master refused the application. The matter now comes before me by way of an appeal against the Master's said order.

Background to the application:
4

The factual background is straightforward enough. In 2008 the present plaintiff was the registered owner of a property known as Bruce Betting at Greally's Corner, Roscommon, comprised in Folio 33182F of the Register of Freeholders for the County of Roscommon. The building is adjacent to a busy public road and the plaintiff was unlucky enough that it was struck by a lorry, and had damage caused thereto, twice within a number of months. There was a first incident on the 10 th July, 2008, and a second incident on the 1 st December, 2008.

5

The plaintiff commenced the proceedings herein by a plenary summons issued on the 22 nd March, 2011. He has since delivered a statement of claim. The action is a negligence action in which plaintiff claims damages against the defendants jointly and severally for the damage caused to his building. The first, second and third named defendants are sued as being concerned with the first incident on the 10 th July, 2008. The first named defendant is sued as the driver, and the second and/or third named defendants are sued as the owners, of the lorry that was in collision with his building on...

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1 firm's commentaries
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