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 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:
6. It is agreed that the particulars supplied in the indorsement of claim followed the standard practice which has been used by the plaintiff bank without objection for more than fifty years. The point taken by the defendant’s counsel, Mr. Sheahan S.C., is that while this may be so, this summons nonetheless fails ex facie to comply with the requirements of Ord. 4, r. 4 of the Rules of the Superior Courts, 1986 and that he is entitled on that ground alone to object to the proceedings in their present form.
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
8. Ord.4, r. 4 of the Rules of the Superior Courts provide:
“The indorsement of claim on a summary summons and on a special summons shall be entitled ‘special endorsement of claim’ and shall state specifically and with all necessary particulars the relief claimed on the grounds thereof. The indorsement of claim on a summary summons or a special summons shall be in such one of the forms in Appendix B, Part III shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.”
9. Looking at the matter first in terms of general principles, the whole object of pleadings and, specifically, the requirements contained in the Rules of the Superior Courts regarding to particulars was articulated by Henchy J. in Cooney v. Browne [1984] I.R. 185, 191 in the following terms:
“…where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”
10. The Rules of the Superior Courts admittedly contain a variety of distinct provisions dealing with the obligation to provide particulars. While the obligation to supply particulars may vary depending on the context, these provisions all, however, share one common objective, namely, to ensure that litigants properly know the case that they have to meet. The obligation to supply particulars is, accordingly, not an end in itself.
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:-
“I think a party, who is placed in the predicament of being liable to have a judgment signed against him summarily, is entitled to have sufficient particulars to enable him to satisfy his mind whether he ought to pay or resist… It seems to me that a party is entitled, before summary proceedings for judgment are taken against him, to know specifically what is the claim against him.”
13. Mellor J. spoke to the same effect [(1877) 3 Q.B.D. 8,9-10]:
“It seems to me very important to prevent any loose dealing with regard to the form of special endorsements. A very summary remedy is given to the plaintiff where there has been such an endorsement. But before the plaintiff can ask for final judgment the defendant ought to have afforded him, by the endorsement of reasonably specific particulars of claim on the writ, an opportunity to see whether the claim is one to which he has any defence or not.”
14. This issue was further considered in Allied Irish Banks Ltd. v. The George Ltd., High Court, 21st July 1975. At issue in The George was whether the standard form endorsement of claim used in summary summons proceedings actually satisfied the requirements of Ord. 4. This was a case in which the bank sued for money owed by a customer. Butler J. held that the special endorsement of claim “complies, though not perhaps ideally, with these requirements.” He continued:-
“I think it would have been preferable if the agreement to pay interest at the normal rate had been more particularly pleaded and that it had been indicated whether the loan was by way of overdraft or special advance or term loan or whatever might be the case. All this, however, is something which is clearly within the knowledge of the defendant so as to determine his attitude towards the claim. But with the reservations as stated, I am prepared to accept the special endorsement of claim as sufficient.”
15. In the present case the particulars supplied by AIB in the indorsement of claim refer to the sum outstanding, the date of demand and the relevant account. To my mind, this is sufficient, at least so far as the present case is concerned. It is clear from the correspondence from her financial adviser which has been exhibited in the grounding affidavits filed on behalf of AIB that she is fully acquainted with the nature of the bank’s claim against her. Adopting the words of Ryan J. in Bank of Ireland v. Keehan [2013] IEHC 631, it cannot be said that this defendant “has asserted…any confusion or uncertainty as to his liability.”
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
19. One other matter calls for comment. In the present case the Master struck out the summons on the ground that it was defective in failing separately to specify the interest component of the sum demanded and owing. The procedure governing the actual hearing of proceedings commenced by summary summons is set out in Ord. 37 of the Rules of the Superior Courts 1986. Order 37, r. 1 provides that every summary summons endorsed with a claim for a liquidated sum “shall be set down before the Master by the plaintiff on motion for liberty to enter final judgment for the amount claimed”. Order 37, r. 2 provides that, generally speaking, any motion for liberty to enter final judgment shall be heard on affidavit. Order 37, r. 3 provides that the defendant “may show cause against such motion by affidavit.”
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:
“Upon the hearing of any such motion, the Master, in all uncontested cases, may deal with the matter summarily, and may give liberty to enter judgement for the relief to which the plaintiff may appear to be entitled and, for that purpose, in the case of an action for the recovery of land for non-payment of rent, may ascertain the amount of rent due, or he may dismiss the action and generally may make such order for the determination of the action as may seem just.”
21. It is accordingly clear that in uncontested cases the Master may deal with the matter summarily and give liberty to enter final judgment. Order 37, r. 6 deals, however, with contested cases. It provides:
“In contested cases, the Master shall transfer the case, when in order for hearing by the Court, to the Court list for hearing on the first opportunity; and, for this purpose, the Master may extend the time for filing affidavits and give such directions and adjourn the case before himself as he shall think fit. The Master may also, on consent, adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings, discovery, settlement of issues or otherwise as may be appropriate.”
22. The power to dismiss a contested case is clearly reserved to the High Court itself, as Ord. 37, r. 7 provides:
“Upon the hearing of any such motion by the Court, the Court may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing…”
23. It will accordingly be seen that the Master has no jurisdiction to make final orders in contested cases. As I put it in my judgment as a judge of the High Court in ACC Bank plc v. Heffernan [2013] IEHC 557:
“His task in such cases is rather to the transfer the matter to the High Court for hearing when the case is “in order” for hearing by the Court. The reference to “in order for hearing” means nothing more than that the case is administratively ready for hearing so that, for example, all appropriate affidavits have been sworn and filed. This phrase does not gave the Master a jurisdiction to strike out contested cases on the ground that the pleadings are in some way irregular or that the proceedings ought to have been commenced by plenary action rather than by way of summary summons: see here by analogy the comments of Laffoy J. to like effect in ACC Bank plc v. Tobin [2012] IEHC 348. In that case she held that the Master had no jurisdiction to strike out a special summons on the grounds that the papers were not in order for the purposes of Ord. 38, r. 5.”
24. This conclusion is also borne out by other authority. In Grace v. Molloy [1927] I.R. 405 the plaintiff issued a summary summons claiming a fixed sum by way of arrears of rent. The defendant filed a replying affidavit claiming that he had an arrangement with the plaintiff to the effect that the plaintiff was to continue to pay rent to the head landlord under the lease and to remain as tenant under that lease and that it was only on the plaintiff making such payments that the defendant was obliged to recoup him in respect of the same amount. The defendant stated that the plaintiff had not paid the rent due to the head landlord and claimed that until such payments were made in the first instance he was not liable. The Master made an order for final judgment on the ground that the defendant’s affidavit did not disclose the fact entitling him to defend.
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:
“The present is admittedly a contested case, and therefore the Master had no power under that Rule to make the order for judgment, nor has he such jurisdiction under any order of the Rules of the High Court and Supreme Court.”
26. It is clear, therefore, that the Master has no jurisdiction to determine contested cases. What, then, is a “contested case” in this context? In my judgment in Heffernan, I stated:
“For my part I would interpret the reference to “an uncontested case” in its ordinary sense as meaning one where the defendant offers no opposition to the application over and above the entry of an appearance. The mere entry of an appearance is not in itself sufficient to bring a case into the category of a contested case, since this is simply the administrative mechanism which (subject to some exceptions not here relevant) acknowledges due service of the proceedings and fulfils the function of either permitting a solicitor to come on record or, where the litigant is acting in person, allowing for address for service to be thereby given.
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.
27. A similar view was taken by Kearns P. in Bank of Ireland v. Dunne [2013] IEHC 484 where he stated that:
“The Master has no jurisdiction in a contested case….Further, where a case is contested and there is some ambiguity as to form, the Rules do not confer on the Master a jurisdiction to dismiss the proceedings out of hand - his jurisdiction, clearly spelt out in the Rules (Ord. 37, r.6), permits him only to go so far as to decline to transfer the case to the court list until those deficiencies are rectified and the matter thereby becomes ‘in order.’”
28. By any standards, it is clear that the present case was a contested case. After all, AIB were seeking judgment for the sum of €785,928 and the defendant was contesting this by contending, among other things, that the summons was defective. This, by definition, brought the case within the category of a contested case. It is clear that in such cases the Master has no jurisdiction and his task is simply to transfer the case to the High Court once it is administratively ready for hearing. Specifically, the Master had no jurisdiction at all to strike out the summons on the ground that it was defective. That was a matter in respect of which only the High Court alone had a jurisdiction to determine.
Conclusions
29. In summary, therefore, I would allow the appeal on the basis that the plaintiff bank had supplied adequate particulars for the purposes of Ord. 4, r. 4. Specifically, as there was no suggestion at all that this defendant did not know the nature of the case which she had to meet, it cannot be said that these particulars were inadequate in any way. There may, perhaps, be special cases where more particulars might be required, but such cases are likely to be unusual, even exceptional. Certainly, the question of further particulars could not arise unless the defendant first demonstrates by cogent affidavit evidence that the matter cannot be fairly determined in the absence of such particulars.
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.
Judgment of Mr. Justice Kelly delivered on the 22nd day of April 2015.
Introduction
1. I entirely agree with the judgment which has been delivered by Hogan J., but I wish to add some observations of my own. I do so because of the presence of some remarkable features in the way this litigation has proceeded to date.
The pleading point
2. The objection which was taken concerning the special endorsement of claim on the summary summons appears to have its genesis in what took place at a hearing before the Master of the High Court on the 13th March, 2014.
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
7. Hogan J. has analysed the provisions of O. 37 and the role of the Master of the High Court under that order.
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
13. I concur in the view that this appeal must be allowed.
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