White v Melling

CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date23 January 2018
Neutral Citation[2018] IEHC 42
Docket Number[2009 No. 1EEO]
Date23 January 2018

[2018] IEHC 42

[2009 No. 1EEO]


Employment – Unfair dismissal – Practice & Procedure – O. 42, r. 24(a) of the Rules of the Superior Courts – European Enforcement Order

Facts: The defendant sought an order for vacating the judgment of the High Court wherein the Court had given liberty to the plaintiff to issue execution against the defendant in lieu of the judgment entered in favour of the plaintiff and against the defendant in the county court in England. The defendant contended that the plaintiff had failed to disclose the material facts to the High Court, which included the fact that the judgment of the court in England had been compromised. The plaintiff contended that the Court in Ireland did not have the jurisdiction to go behind the European Enforcement Order.

Ms. Justice Faherty declined to vacate the order of the High Court. The Court held that there was no concluded agreement between the parties when the plaintiff had filed the ex parte leave application before the High Court. The Court noted that the contents of the letter relied on by the defendant was merely an offer and not a binding settlement.

JUDGMENT of Ms. Justice Faherty delivered on the 23rd day of January, 2018

In the within motion dated 22nd November, 2016, Mr. Melling (hereafter referred to as 'the defendant') seeks an order vacating an Order of the High Court (Hedigan J.) made on 18th April, 2016. On the said date, Hedigan J. ordered 'pursuant to O. 42, r. 24(a) of the Rules of the Superior Courts that [Ms. White hereafter 'the plaintiff'] be at liberty to issue execution against [the defendant] on foot of a judgment entered in her favour against [the defendant] on 7th July, 2006 by the Guildford County Court in England in the sum of GBP £55,680.80 plus a Court Fee in the sum of GBP£35.00 plus costs in the sum of GBP£75.00 and with any further interest becoming due having the Order certified as a European Enforcement Order on 11th August 2008 pursuant to the European Communities (European Enforcement Order) Regulations 2005 that the said judgment be enforceable in the State.'


The defendant seeks to have the Order of Hedigan J. vacated on the basis of alleged failure on the part of the plaintiff to disclose material facts to the Court on 18th April, 2016, including that the said judgment had already been compromised within the State.


The background to the Order made by Guildford County Court on 7th July, 2006 is as follows: The plaintiff was successful in a claim brought by her against the defendant and one Russell Kane, to the Employment Tribunal (England and Wales) in 2006 for unfair dismissal. In a judgment dated 4th May, 2006 the London South Employment Tribunal, under reference 2300987/2006, determined that the plaintiff was unfairly dismissed. The Employment Tribunal awarded the plaintiff in total Stg£55,583.34.


In its 'Reasons for the Tribunal's Judgment', dated 5th May, 2006, the Employment Tribunal found:

• The plaintiff commenced employment with the defendant on 1st September, 2004;

• That the effective date of termination was 28th November, 2005;

• Albeit the plaintiff was told that the respondents (including the defendant) were ceasing to trade in England there was no evidence to substantiate that fact;

• In the absence of such evidence there was no justifiable potentially fair reason for dismissal;

• No consultation preceded the dismissal and no attempt was made by the defendant to follow any statutory procedures. The dismissal was therefore automatically unfair.


The Employment Tribunal also found that 'the respondents [including the defendant] did not appear at the hearing and were not represented. A letter from them and copied to the Tribunal admits the Claimant's claim'.


On 7th July, 2006, judgment was entered in the plaintiff's favour in Guildford County Court by way of 'Order for recovery of an award'. On 11th August, 2008, the Order was certified as a European Enforcement Order as by Guildford County Court.


Subsequently, the plaintiff instructed her then solicitors, A & L Goodbody, to register a judgment mortgage over the property of the defendant at 58 Delbrook Manor, Dundrum, Dublin 16. This process was duly completed on 16th February, 2009.


On 2nd March, 2016, the plaintiff's solicitor, Mr. Kieran Friel of McHale Muldoon Solicitors, filed a praecipe for fieri facias in the Central Office of the High Court. The Central Office refused to permit the plaintiff to issue execution on foot of the Order of 7th July, 2006 on the basis that same was more than six years old. Consequent on this, Mr. Friel applied ex parte to the High Court pursuant to O. 42, r. 24(a), following which leave was granted by Hedigan J.


In his grounding affidavit to the within application, sworn 21st November, 2016, (and in his later affidavits) the defendant takes issue with the fact that the plaintiff instituted proceeding against him for unfair dismissal. Specifically, he disputes that the plaintiff was ever employed by him. At paras. 6 – 27 of his affidavit of 21st November, 2016, the defendant sets out, inter alia, details of his business ventures both in this jurisdiction and in the UK. In particular, reference is made to his interest in Irish Remax Estate Agents via a company Prusmetto Estate Agents Limited trading as Remax Estate Agents- the vehicle used to promote the defendant's interests in the real estate business in this jurisdiction. The defendant's Irish operation ceased in 2006. The defendant avers that Prusmetto Estate Agents Limited was dissolved on 9th November, 2007.


The defendant avers that in 2004 he and others were introduced to 'jurisdictional franchise holders in the U.K.' with a view to purchasing regional Remax franchises in London and the South of England. It is averred that on foot of this the plaintiff came to Dublin in early 2004 to meet with the defendant and others. The purpose of the meeting was the plaintiff's proposed retention as a consultant to assist the defendant's soon to be incorporated company, Remax Properties Plus (U.K.) Limited, to source investors in the UK for the company. According, to the defendant, the plaintiff had experience in real estate in the UK and South Africa and operated a real estate agency in Surrey via Vision Investment Properties Limited, a UK registered company. The defendant avers that the plaintiff's proposed role was 'as a retained Consultant' until an assessment could be made as to the viability of the business. The plaintiff was to be paid a retainer fee of Stg£50,000 payable over a twelve month period, with the plaintiff being responsible for her own income tax, VAT and insurance from her retainer. If the business venture proved to be successful then the plaintiff was to be offered a partnership to include an agreed shareholding and directorship. It is averred that following communications between the plaintiff and the defendant in August, 2004, it was agreed that the plaintiff would be retained as a Consultant with a 'salary' of Stg£50,000 with commission at 50% 'until the £50,000 salary level had been earned by the office and thereafter 70%/30% split which may increase to a larger percentage on [the plaintiffs] side if her numbers justified it.'


The defendant avers that notwithstanding strenuous efforts made by the Irish operation in Ireland and the plaintiff to secure and attract suitable monetary investors, the defendant's company, Remax Properties Plus (U.K.) Limited never commenced trading. Ultimately, in 2005 a decision was made by the Irish directors of the company to cease operations in London. It is averred that the plaintiff, as the 'retained consultant', was a party to that decision. Remax Properties Plus (U.K.) Limited was ultimately dissolved. The defendant goes on to state:

'I say that since [the plaintiff] was retained as UK based Consultant in September 2004, and as a direct consequence of our inability to secure adequately capitalisation, the [plaintiff] suffered regular delays in the payment of fees and expenses for consultancy services and as a result the [plaintiff] threatened to pursue a claim against the Irish directors of Remax Properties Plus (U.K.) Limited in the UK Employment Tribunal.'


The plaintiff duly pursued this option.


At paras. 28 – 42 of his affidavit, the defendant acknowledges and accepts:

(a) Receipt of a notice of hearing from the Employment Tribunal dated 10th April, 2006;

(b) That he was aware of the scheduled hearing of the Employment Tribunal on 4th May, 2006;

(c) That the Employment Tribunal delivered judgment and that the said judgment, together with a Certificate of Correction, was received by him; and

(d) That he did not attend, nor was he represented at the hearing.


It is also established that on 2nd May, 2006, the plaintiff wrote to defendant advising that the Tribunal hearing would take place but that should she be paid in full her outstanding salary and expenses owed she would withdraw her application. Reference was made to ACAS having approached the defendant to settle the matter out of court but that ACAS had not heard from the defendant.


The defendant wrote to the plaintiff on the same date advising that he would not be available to attend the Tribunal on 4th May, 2006. He stated, inter alia, as follows:

'You were also involved in all aspects of the business model and you personally negotiated with both of us and accepted the position that you would receive a shareholding and salary in the company, provided that we secured the financial backing from investors to capitalise the company. However you were also told and fully understood that if we failed in our attempts to secure the finance then we would reluctantly have to cease our operations in England. This we did and you were informed of our...

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