White Young Green Enviromental (Ireland) Ltd v Gethings

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 20 July 2015
• Neutral Citation: [2015] IEHC 498
• Docket Number: [2010 No. 5888 P]
• Court: High Court
• Date: 20 July 2015

BETWEEN

WHITE YOUNG GREEN ENVIRONMENTAL (IRELAND) LIMITED

PLAINTIFF

AND

ANNA GETHINGS

DEFENDANT

[2015] IEHC 498

[2010 No. 5888 P]

THE HIGH COURT

Practice & Procedures – O. 22, r. 1(1) of the Rules of the Superior Courts – Offer of tender of payment – S. 15 of the Civil Liability and Courts Act 2004 – Public policy

Facts: The plaintiff sought leave of the Court to make an offer to tender payment to the defendant in lieu of the counterclaim filed by the defendant in the main proceedings instituted by the plaintiff for recovery of professional fees, after the failed mediation between the plaintiff and the defendant.

Mr. Justice Binchy refused to grant leave to the plaintiff to make an offer to tender payment to the defendant. The Court held that it was a sound public policy to permit lodgement of money or offers of tender of payment for settlement of cases in an amicable manner; however, the policy would not permit the plaintiff to initiate the aforesaid action to offer money after having gained knowledge of the defendant's case through the settlement and negotiation process though unsuccessful. The Court found that the delay in filing the aforesaid application after the commencement of the trial by the plaintiff would be prejudicial to the interests of the defendant.

Mr. Justice Binchy

1 This is an application brought by the plaintiff pursuant to order 22, rule 1(1) of the Rules of the Superior Courts seeking leave of the Court to make an offer of tender of payment to the defendant in relation to her counterclaim herein.

2 The chronology of events leading to this application is as follows:-

(a) On 12th November, 2008, the plaintiff issued proceedings against the defendant seeking recovery of professional fees in respect of services rendered by the plaintiff to the defendant. These proceedings were issued in the Circuit Court and the total claimed by the plaintiff is in the sum of €33,985.37.

(b) On 7th July, 2009, a defence and counterclaim was delivered on behalf of the defendant. In the counter claim, the defendant alleged negligence on the part of the plaintiff who provided services to the defendant in relation to a proposed residential development to be undertaken by the defendant at Ballyduff, Kilcomb, Camolin, Co. Wexford and in particular, in relation to the requirements of theplanning authority, Wexford County Council, concerning the need to obtain a discharge licence for the development under the Water Pollution Acts, 1977 to 1990. The value of the counterclaim as pleaded in the civil bill was €260,393.00 of which €210,666.18 comprised interest which was alleged to be continuing.

(c) The plaintiff raised a detailed notice for particulars in relation to the counterclaim on 20th November, 2009.

(d) On 18th June, 2010 the proceedings were adopted in the High Court.

(e) On 20th July, 2010 the defendant delivered replies to the notice for particulars of the plaintiff together with vouching documentation.

(f) On 8th April, 2011, the plaintiff delivered a detailed and considered reply to the defence and counterclaim of the defendant.

(g) The defendant served a notice of intention to proceed on 24th October, 2013.

(h) On 15th May, 2014, the defendant delivered updated particulars of special damages. The amount now claimed by way of counter claim was increased very significantly to in excess of €1.5 million of which €594,459.67 related to interest, which was stated to be continuing.

(i) The defendant served notice of trial on 28th May, 2014.

(j) On 5th June, 2014, the solicitors for the plaintiff informed the defendant that the plaintiff company had been placed in liquidation in August 2012. The solicitors for the plaintiff informed the defendant's solicitors that, as a result, the proceedings could not be progressed until such time as the defendant obtained an order pursuant to section 222 of the Companies Act, 1963, giving the defendant liberty to proceed with her counterclaim against the company in liquidation. The defendant duly issued a notice of motion dated 8th July, 2014 seeking an order of the court pursuant to section 222 of the Companies Act, 1963. That application was heard and granted by the Court on 13th October, 2014.

(k) The plaintiff made a request for discovery of documents arising out of the counterclaim of the defendant on 12th November, 2014.

(l) The defendant's solicitors delivered an affidavit of discovery on the 22nd January, 2015 followed by delivery of documents of discovery on 2nd February, 2015.

(m) The defendant delivered further updated particulars of special damages on 8th April, 2015. The principal difference between this and the particulars delivered by the defendant in May 2014 related to interest claimed.

(n) The matter had been set down for trial on 14th April, 2015. The trial commenced on that day but, upon the urging of the Court, on the second day of the trial the parties applied to adjourn the proceedings to facilitate a mediation of the dispute and the...