High Court of Ireland Decisions

1. This is an application made on behalf of the Defendant to increase his lodgment. It is made on the day on which the hearing of the trial is due to begin. The morning has been taken up by negotiations between the parties in an attempt to compromise the action and these have proved unsuccessful. Counsel for the Defendant, following these unsuccessful negotiations, seeks an Order giving his client liberty to increase the lodgment and this application is resisted by Counsel for the Plaintiffs. The application is not based on a formal Notice of Motion but Counsel for the Defendant says that this can be provided if I were disposed to authorise such a procedure.

2. The pleadings show that the Defendant requested particulars, effectively of quantum, in his Notice for Particulars of the 14th February, 1997. The reply on the 17th April to a large extent asserted that the Defendant already had this information by way of invoices and the pleadings to date.

3. The Solicitors for the Plaintiffs have a receipt showing that these replies were sent and it seems from the reply of the Defendant's then Solicitors that it is reasonable to infer that they were received. There was a change of solicitors and the Defendant's present Solicitor now states that he does not have the information contained in those replies if they were sent and I accept from him that this is the case.

4. The fact remains, however, that for whatever reason the Defendant did not follow up on his request for particulars as sought in the Notice of the 14th February, 1997 which, from the point of view of the Defendant, proved inadequate in the sense that his present Solicitor does not have the information requested.

5. On the 8th December, 1998 this information was sent, or as I consider sent a second time, by the Plaintiffs' Solicitor to the Defendant's present Solicitor as a matter of courtesy and not as a matter of compliance with the original letter requesting particulars.

6. The next element of relevance in the sequence of events is, as I have already indicated, that this morning there were negotiations and indeed I am aware that shortly after 12 noon it was indicated to me that I would not be required to sit until 2 p.m.

7. I was referred to the judgment of Barr J. in Brennan v. Iarnrod Eireann and Others (1993) ILRM: 134. It is clear from the judgment of Barr J. delivered on the 20th January, 1992 that his concern in dealing with a comparable application was to protect what he identified as the requirement of confidentiality attaching to an exchange between parties in settlement negotiations. At page 135 of the report he says:-

8. In the present case, it appears that the Defendant was content to lodge a nominal lodgment. His Counsel says that he did this because he was not at the time in possession of sufficient information to allow him to assess a realistic amount. Be that as it may, the policy of lodging what I am told was a nominal amount was adopted.

9. I should note that the judgment of Barr J. goes on to acknowledge that there may be special circumstances where in fairness to the Defendant the Court should allow a late lodgment and as an example he suggests a case where in the course of negotiations the level of quantum being claimed is out of all proportion to the information available to the defendant up to that point.

10. I consider that in the exercise of my discretion on this application, I should be particularly careful to protect the integrity of the negotiations as was Barr J. in the Iarnrod Eireann case. I am informed that Counsel for the Defendant indicated to his opposite number an amount at the commencement of the settlement negotiations (and clearly, therefore, not influenced by any information communicated under privilege in the course thereof) and that it is this amount and not any other amount which his client now seeks to lodge with his defence. I consider, nonetheless, that it would not be safe for me to permit the Defendant to lodge on this basis because if I did that then in any other case a defendant's Counsel might well be tempted to commence settlement negotiations with a figure in terrorem of the plaintiff.

11. More pertinently, I consider that the responsibility for the lack of information available to the Defendant's legal advisers at the time of making the "nominal" lodgment must rest with the Defendant rather than the Plaintiffs. In this I am not assigning blame to the Defendant or his advisers: I am simply doing justice, as I see it, as between the parties in the light of the sequence of events which I have set out above. Furthermore, to some extent it does weigh with me that the Defendant was prepared to lodge what his Counsel described as a "nominal" lodgment and that he now seeks, following negotiations, to increase that to a realistic, or perhaps even a tight, lodgment. Thirdly, I consider that the close proximity of the application to the actual negotiations themselves and the close proximity of both the application and negotiations to the commencement of the hearing of the case in Court, involves a risk that no matter how properly Counsel for the Defendant conducts his advices and calculations of the lodgement, there must be some risk, or perception of risk, that something may have been said in the course of those negotiations which would enable the Defendant to make a better assessment from a tactical point of view, thereby resulting in an unfair advantage to him over the Plaintiffs.

12. In all the circumstances I consider that it would not be just to the Plaintiffs to allow the Defendant to make an increased lodgment as sought and accordingly I refuse the application.