Wolfe v Wolfe

• Jurisdiction: Ireland
• Judge: Mr Justice Herbert
• Judgment Date: 28 July 2000
• Neutral Citation: [2000] IEHC 156
• Court: High Court
• Docket Number: [1996 No. 292 COS]
• Date: 28 July 2000

[2000] IEHC 156

THE HIGH COURT

No.292COS CT5/1996

WOLFE v. WOLFE & RANGER HOLDINGS LTD & ANOR

IN THE MATTER OF JOHN ATKINS AND COMPANY LIMITED AND IN THE MATTER OF THE COMPANIES ACTS 1963– 1990

BETWEEN

MARTIN WOLFE AND RUTH WOLFE

PETITIONERS

-V-

PETER WOLFE ANGELA WOLFE RANGER HOLDINGS LIMITED AND JOHN ATKINS AND COMPANY LIMITED

RESPONDENTS

Citations:

RSC O.28 r1

RSC O.125 r1

RUBOTHAM (AN INFANT) V M & B BAKERIES LTD 1993 ILRM 219

DPP V CORBETT 1992 ILRM 674

BELL V PEDERSON 1995 3 IR 511

RSC O.28 r9

AER RIANTA INTERNATIONAL CPT V WALSH WESTERN INTERNATIONAL LTD 1997 2 ILRM 45

FAHY V PULLEN 102 ILTR 81

RSC O.99 r37(33)

O'DRISCOLL V IRISH SHELL & BP LTD 1968 IR 215

KIELTHY V ASCON LTD 1970 IR 122

BOURGOINE V TAYLOR 1878 47 LJ CH 542

ASCHERBERG HOPWOOD & CREW LTD V CASA MUSICALE SONZOGNO DI PIERO OSTALI 1971 3 AER 38

E M BOWDENS PATENT SYNDICATE LTD V HERBERT SMITH & CO 1904 2 CH 86

FLYNN & HALPIN TAXATION OF COSTS (1999) 130 & 137

GREENSLADE ON COSTS (1993) 1:25

STANLEY V AER LINGUS 114 ILTR 26

COMPANIES ACT 1963 S60

CROPPER V SMYTH 1883 26 CH D 700

PALAMOS PROPERTIES LTD & O'NEILL V BROOKS 1996 3 IR 597

CORNHILL V MIN FOR AGRICULTURE & FOOD UNREP O'SULLIVAN 13.3.1998 1998/14/4976

Synopsis:

- [2001] 1 IR 313 - [2001] 1 ILRM 389

The petitioners had sought liberty to amend their petition. The amendments were not opposed by the respondents but they sought the costs of the amendments and any further costs arising out of any adjournment thereby arising. Herbert J was satisfied that the proposed amendments were necessary in the interests of justice. Any prejudice thereby arising would be countered by adjourning the date of the trial. The respondents were now faced with having to meet a substantially different case and to merely award an order for the costs of the day would not be sufficient. However to allow costs to the respondents on a full party and party basis as if the original petition had been discontinued would be unjust and oppressive. In the circumstances an order for costs would be granted on a party and party basis but only in relation to certain fees occurring in conjunction with the adjourned trial. In addition the respondents were entitled to the costs of the motion and the costs of taking judgment. The petitioners would not however be obliged to furnish security for costs in order to proceed with their amendments.

1 Mr Justice Herbert delivered the 28th day of July, 2000 .

2 Following upon the judgement of this Court delivered on the 29th June 2000, a Notice of Motion was filed dated 3rd July 2000 on behalf of the Petitioners, Martin Wolfe and Ruth Wolfe, seeking liberty of the Court to re-amend the amended Petition heretofore delivered in this case.

3 Order 28 Rule 1 of the Rules of the Superior Courts, 1986, provides as follows:-

"the Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just and all amendments shall be made as may be neccessary for the purpose of determining the real question in controversy between the parties".

4 Order 125 Rule 1 of the Rules of the Superior Courts, 1986, defines, "Pleading" has including a petition, and there is nothing in Order 28 Rule 1 of the same Rules which would render such inclusion repugnant to its operation.

5 There can be no question but that the re-amendment sought in this case is in the words of Morris P., in the case of Rubotham (infant) -v- M & B Bakeries Limited (1993) ILMR219 at 221,

"Fundamental and introduces into the action a Claim for a relief which has not originally been made."

6 In my judgment in the absence of some special circumstances, as where the party opposing the amendment has rights existing at the date of the application to the Court, such as the benefit of the Statute of Limitations, which would be thereby prejudiced, the mere novelty of the proposed re-amendment does not represent a barrier to its being permitted by the Courts. I adopt the following passage from the judgment of Morris P. in the case of Rubotham (infant) versus M & B Bakeries Limited, (above cited):-

"since Order 28 Rule 1 of the Superior Courts Rules, envisages the making of an amendment which may be necessary "for the purpose of determining the real questions in controversy", it appears to me that the fact that this may be a new and hitherto unpleaded case is not a bar to granting an amendment".

7 I have reached the conclusion that the re-amendment sought by the petitioners is necessary in the interest of justice and for the purpose of ensuring that what are very obviously the real and principal questions in controversy between the parties are before the Court. In reaching this conclusion I am satisfied that any prejudice suffered by the Respondents will be remedied by the adjourned of the trial, an Order for costs and the imposition of a condition that the Petitioners shall forthwith furnish to the Respondents an indemnity against all extra costs and expenses which may reasonably be incurred by the Respondents in dealing with the re-amendment. (DPP -v- Corbett, (1992) ILRN, 6754 at 678, per Lynch J, adopted by Kinlen J in Bell -v- Pederson and Sandoz Ringaskiddy Limited, (1995) 3 ILLRN 511 at 518 and 519).

8 The Court will permit the delivery of a re-amended petition in the form annexed to the aforementioned Notice of Motion provided that:-

9 1. The "particulars" proposed to be inserted into paragraph 11 thereof shall in lieu be pleaded as a separate and distinct basis of claim.

10 2. The "particulars" proposed to be inserted into paragraph 12 thereof shall in lieu be pleaded as a separate and distinct basis of claim and in the following manner:-

11 (a) the proposed sub paragraphs 12 (3) and 12 (5) shall be conjoined so as to become one paragraph to be numbered 13.

12 (b) the proposed sub paragraphs 12(1) 12(2) 12(4) shall be included in the said paragraph 13 by way of particulars.

13 3. The paragraphs now numbered 13a and 13b in the proposed re-amended petition shall be re-numbered so that each shall bear a unique sequential number.

14 4. The paragraphs of the proposed re-amended petition shall be re-numbered to take account of the foregoing directions.

15 The re-amended petition shall be indorsed as provided by Order 28 Rule 9 of the Rules of the Superior Courts, 1986, and each re-amendment shall be signified by underlining with two parallel horizontal red lines.

16 Counsel for the first and second named Respondents and Counsel for the third named Respondents did not oppose the application by the petitioners to re-amend the petition, but made the case that the petitioners should not be permitted to amend without paying not only the costs of the re-amendment and undertaking to pay any costs incurred by the Respondents consequent upon the re-amendment, but also all costs incurred by the Respondents and thrown away up to the date of the adjournment of the proceedings which adjournment was rendered necessary by the re-amendment. They argued that having regard the terms of Order 28 Rule 1 of the Rules of the Superior Courts, 1986, the necessity for the Court to hold the balance of justice fairly between the parties meant that without such an Order in favour of the Respondents the Court was in effect prohibited from granting the relief sought by the Petitioners.

17 I prefer to be guided by the dictum of Murphy J., (Barrington J., concurring), in the course of his judgment in Aer Rianta International CPT -v- Walsh Western International Limited,(1997) 2IRLM. 45 at 51 where he held that:-

"If Justice requires that the amendment be allowed it likewise requires that all costs and expenses caused thereby should be borne by the Defendant," (in that case the party seeking leave to amend),

18 In the course of determining what would be the appropriate Order for costs to be made in this case I have considered a number of decisions in this jurisdiction and in England.

19 The case of Fahy -v- Pullen, 102 ILTR 81, was an action for personal injuries arising from a road traffic accident. In replies to particulars arising out of the statement of claim the Plaintiff claimed that for her to move her right arm caused severe pain from her shoulder to the insertion of the deltoid. In giving evidence as the first witness before a judge sitting with a jury she said in reply to a question from her Counsel that she had pain and discomfort the whole time in both arms and both elbows particularly in the left elbow. The trial judge, (Mr Justice Henchy), on application by Counsel for the Defendant, did not consider that the jury could properly be told to exclude this evidence, which he ruled inadmissible, as to pain and discomfort in the Plaintiff's left arm and elbow. The jury was discharged and the trial was adjourned. The Defendant was awarded, "the costs of and incident to this Order which will be thrown away in consequence of this adjournment."

20 The Plaintiff appealed to the Supreme Court. The Supreme Court allowed the Plaintiff's appeal. In his judgment, Ó'Dalaigh C.J, held:-

21 (1) that no amendment of the pleading was necessary, but that had such an amendment been necessary circumstances might have been different,

22 (2) that the Defendants could not have been taken by surprise because on an examination by the Defendant's medical expert of the Plaintiff a week before the trial she had told him and he had recorded that both arms were disabled and were causing pain,

23 (3) that the general words used in the replies to particulars were sufficiently apt to embrace the evidence to which objection was taken.

24 The Court directed that the Defendants should bear the costs of the adjournment of the action, such costs to be on the basis of "costs of the day" as defined by Order 99 Rule 37 (33) of the then Rules of the Superior...