CA87
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Allied Irish Bank plc -v- Pierce [2015] IECA 87 (22 April 2015) URL: https://www.bailii.org/ie/cases/IECA/2015/CA87.html Cite as: [2015] IECA 87 |
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 87
Appeal No. 2015/72 Kelly J. Hogan J. Mahon J. BETWEEN/ ALLIED IRISH BANKS PLC PLAINTIFF/APPELLANT AND
EILEEN PIERCE DEFENDANT/RESPONDENT JUDGMENT of Mr. Justice Gerard Hogan delivered on 22nd day of April 2015 1. Where a plaintiff elects to sue for a liquidated sum by means of a summary summons, how extensive must the particulars of debt be in order to satisfy the requirements of Ord. 4, r. 4 of the Rules of the Superior Courts, 1986? This is essentially the issue posed in this appeal and it arises in the following way. 2. The plaintiff bank, Allied Irish Banks plc (“AIB”) advanced various sums by way of loan to the defendant, Ms. Pierce, from 2007. Further facilities were granted in April 2008 and were again re-structured in June 2009. The facility fell into arrears and by letter dated 23rd April 2013 the plaintiff’s solicitors demanded repayment of the principal sum. These proceedings were commenced by way of summary summons shortly thereafter. 3. The affidavits filed on behalf of the Bank give further details of the account and accrued interest. One of the documents therein exhibited was an open letter from the defendant’s financial adviser to AIB. It is, perhaps, striking that this letter did not seriously dispute the debt and gave details of settlement proposals which had been advanced on her behalf. 4. The matter came before the Master on a number of occasions, but on 16th October 2014 he struck out the summons pursuant to Ord. 63, r. 5 on the ground that the summons was defective for want of failure to disclose adequate particulars regarding interest. AIB appealed that decision to the High Court. In his decision 14th November 2014 Binchy J. upheld the decision of the Master to strike out the summons on the ground that the claim for interest had not been sufficiently particularised. AIB now appeals to this Court against that decision. 5. The indorsement of claim contained in the summary summons was in the following terms:
Particulars: Loan Account Number [details supplied] 23rd April 2013: - amount formally demanded: (total): €785,928.24” 7. I should pause here to observe that it is agreed that in the event that this appeal were to succeed, the matter must then be remitted to the High Court, as the defendant elected to raise the pleading point as a preliminary objection and she has yet to file an affidavit showing a defence on the merits. The requirements of Ord. 4 and particulars on the indorsement of claim
11. This general principle is also reflected in the case-law regarding particulars in summary summons proceedings. It is true that the procedure provided for by Ord. 4, r.4 is attenuated. This, however, reflects the limited purpose of the summary summons procedure, namely, to provide for a speedy mechanism whereby a plaintiff creditor can recover a liquidated sum from a defaulting debtor. But as to the guiding principle to be applied, there can, I think, be very little doubt. 12. The defendant is accordingly entitled to sufficient particulars as will enable him to determine himself whether he is obliged to pay the sum claimed. The principle was stated by Cockburn C.J. in Walker v. Hicks (1877) 3 Q.B.D. 8, 9:-
16. Counsel for Ms. Pierce, Mr. Sheahan S.C., suggested that the Bank could and should have provided by way of particulars contained in the indorsement of claim a running account of the loan obligations, with additional details as to interest, nature of the loan, repayments and so forth. Doubtless all of this information could have been supplied, save that in that situation the indorsement of claim would have taken on the character of a bank statement rather than a pleading. It is clear, however, from the language of Ord. 4, r. 4 that this is what the drafters of the Rules sought to avoid: they aimed instead for a pithy and concise statement of the claim. 17. I do not doubt but that there might be special cases involving proceedings brought by way of summary summons where more elaborate particulars might be required. Yet such cases are likely to be unusual - perhaps even exceptional - and no objection to the form of pleading should properly be entertained unless the defendant has first made out a convincing case by way of replying affidavit to the effect that, absent such additional particulars, the fair defence of the proceedings would be compromised. 18. Nothing of the sort arises in the present case. Indeed, Mr. Sheahan S.C. freely conceded that the objection here was based on a pure pleading point to the proceedings as cast in their present form. In my view, however, the indorsement of claim in the present case complies with the requirements of Ord 4, r. 4. It follows, therefore, that the present appeal should be allowed and the matter remitted to the High Court for a determination on the merits. The role of the Master and Ord. 37, rr. 4 and 6 20. Order 37 then distinguishes between the powers of the Master in uncontested cases on the one hand and those which obtain in contested cases on the other. Order 37, r. 4 deals with the power of the Master in uncontested cases:
25. The defendant’s appeal against that decision of the Master succeeded before the High Court. As O’Byrne J. observed ([1927] I.R. 405, 405) Order XIII, r. 5 of the Rules of the High Court and Supreme Court 1926 gave the Master power to make certain orders, including an order for final judgment in uncontested cases. It was, however, otherwise in the case of a contested case. On this point O’Byrne J. stated:
But where - as here - the defendants oppose the application for liberty to enter final judgment under O. 37, r. 1 by the filing of affidavits disputing the plaintiff’s claim, then the case falls into the category of a contested case. In those circumstances, as the comments of O’Byrne J. in Grace make clear, the Master’s task is simply either to transfer the case into the High Court for adjudication once satisfied that the papers are in order and the matter is ready for determination or, should the parties so consent, adjourn the case for plenary hearing. Specifically, the Master has no function to resolve a conflict of fact or to make an assessment of the likely strength of the case made by either the plaintiff or the defendant or to determine that the case ought to have been commenced by plenary summons.
Conclusions 30. I would also add that as this was by definition a contested case within the meaning of Ord. 37, r.6, the Master had no jurisdiction to strike out the summary summons on the basis that the summons was defective. 31. In these circumstances, I would allow the appeal and remit the matter afresh to the High Court to enable that Court to proceed to hear the merits of the present application which have yet to be determined. Introduction The pleading point 3. On that occasion it was apparently the Master himself who expressed his disquiet with the special endorsement of claim. He required submissions to be prepared on the point taken by him. That was so notwithstanding the absence of any evidence on the part of the defendant suggesting any prejudice being caused to her as a result of the alleged infirmity in the endorsement of claim.
4. In an affidavit sworn on the 25th April, 2014, by Mr. David Galvin on behalf of the plaintiff bank, he exhibited open correspondence from the defendant’s financial advisers dated the 10th September, 2013 and written in the context of this litigation. That correspondence contained an open offer to settle the litigation and the defendant acknowledged her indebtedness to the bank in the sum of €781,000. Notwithstanding that evidence, the Master proceeded to conduct a hearing on the pleading point on the 10th July, 2014, and reserved his decision until the 16th October, 2014. It was on that day that he erroneously struck out the summons.
5. The notice of motion seeking leave to enter final judgment was first made returnable before the Master on the 11th July, 2013. Despite the absence of any affidavit being sworn by the defendant it took until the 16th October, 2014, before the matter was ultimately and wrongly concluded by the Master.
6. Not merely was the order which was made on that occasion incorrect, but it was made in excess of jurisdiction. If that were the first time that such occurred, it might be unremarkable. But it is not, as is clear from what follows. Jurisdiction 8. In my view, the position is crystal clear. The wording of O. 37 makes it plain that the Master has no jurisdiction in contested cases other than to transfer them for judicial determination before a judge.
9. The words of the rule are so clear that it is difficult to imagine how there could be any doubt about what they mean. But if there was any such doubt it was entirely addressed in the series of decisions which are referred to in the judgment of Hogan J. Those decisions go back as far as 1927, but two of them are of very recent vintage. There is the decision of Kearns P. in Bank of Ireland v. Cawley [2013] IEHC 484. In that case the President held that the Master has no jurisdiction to dismiss proceedings in a contested case. That decision was given on the 8th November, 2013.
10. The second case is the decision of Hogan J. in ACC Bank plc v. Heffernan [2013] IEHC 557. That judgment was delivered just four days before that of the President in Bank of Ireland v. Cawley. There Hogan J. made it clear that the Master has no jurisdiction to make final orders in contested cases and he further analysed the meaning of the expression “in order for hearing” where it appears in O. 37, r. 6. I agree with him that it means nothing more than a case being administratively ready for hearing. It certainly does not give the Master a jurisdiction to strike out a contested case. It matters not whether a contest is on fact or law or by reference to some alleged irregularity in the pleadings or proceedings, the Master has no jurisdiction to adjudicate on it
11. Despite the clarity of the two judgments which I have cited, the Master, within months of their delivery, proceeded to do in the instant case precisely what it had been held he had no power to do by both Kearns P. and Hogan J.
12. The assumption by the Master of this non existent jurisdiction delayed the progress of this litigation for well in excess of a year. It deprived the plaintiff of the ability to make progress in circumstances where, in the correspondence to which I have already referred, the defendant accepted through her financial advisers that she has a liability to the plaintiff for €781,000. During all that period of delay, interest has continued to accrue and costs have multiplied. None of that ought to have happened. It would not have happened if the clear judgments of the President of the High Court and Hogan J. had been followed. Result |