Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Plunkett & Ors v. Houlihan & Ors [2004] IEHC 357 (15 November 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/357.html
Cite as: [2004] IEHC 357
[New search] [Printable RTF version] [Help]
Neutral Citation No. [2004] IEHC 357
THE HIGH COURT
Record Number: 2003 No. 1298P
Between:
Patrick Plunkett, Joseph McMenamin
and Eoin O'Donovan
Plaintiffs
And
Peter Houlihan and Nicholas Cushnahan, practising as Houlihan Cushnahan and Company, Chartered Accountants
Defendants
Judgment of Mr Justice Michael Peart delivered the 15th day of November 2004:
This is an unusual application brought by the defendants by way of Notice of Motion dated 23rd June 2004 and grounded on an affidavit of Michael Delaney, a solicitor in the firm of Giles J. Kennedy & Co, which is sworn on the 26th June 2004. In that application the plaintiffs seek an order pursuant to the provisions of O.15, r.1(1) of the Rules of the Superior Courts ("RSC") requiring the three plaintiffs named in the proceedings, to institute separate proceedings against the defendants.
That rule provides as follows:
"1. (1) All persons may be joined in one action as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise; provided that if, upon the application of any defendant, it shall appear that such joinder may embarrass or delay the trial of the proceeding, the Court may order separate trials or make such order as may be expedient."
Factual background:
The plaintiffs are professional men who are all former clients of the defendant accountancy firm. Each plaintiff alleges that the defendants, as their accountants and tax advisers advised each of them to invest money in various companies, that they were solicited to do so, and that certain representations were made to each of them and upon which they relied before making the said investment. However there is no connection between these three plaintiffs other than that they were all clients of the defendants. They did not consult that firm on any joint basis and they did so separately and at different times, and there is also no commonality between them as to the amounts invested or the companies into which they invested their money. The single feature in common between the three plaintiffs is that they all make the same complaint namely that it was not disclosed to the plaintiffs or any of them that the companies into which they were encouraged to invest their money were companies in which the defendants themselves had an interest in several of the companies either as directors or shareholders, and that information given to them in relation to the companies was not accurate and that in many other respects misrepresentations were made. There is no need to set the dispute out in more detail. It is contained in detail in the Statement of Claim delivered on the 4th September 2003. The plaintiffs plead that if the true position in relation to these companies had been properly made known to them, they would not have invested in same. They each claim to have suffered substantial losses.
Particulars of these alleged losses are set forth as follows in the Statement of Claim:
The first named plaintiff €69,835.59.
The second named plaintiff €39,361.87
The third named plaintiff €21,585.55.
The grounding affidavit states that the first named plaintiff invested in five companies, the second named plaintiff invested in eight companies, and the third plaintiff invested in six companies; that each plaintiff was a separate and individual client; their individual circumstances were separate and individual; their financial requirements and positions were different; and that in relation to tax/financial advices given, each plaintiff was treated separately since their financial positions were different; and that advices were given to each plaintiff by different members of the defendants' firm. It is further stated by the deponent that each plaintiff invested different sums of money and at different times over a number of years. It is alleged that it therefore follows that each plaintiff received individual advice, and not the same advice given to the other plaintiffs, and that accordingly, any evidence of any representations given by the defendants will be and can only be different for each plaintiff. It is further alleged by the defendants that each plaintiff benefited from tax advantages when they made their investments, and that these benefits must be set off against the amounts invested in order to arrive at any loss to each of the plaintiffs. The tax savings for each plaintiff would also be different depending on their particular tax situation.
The defendants submit that the plaintiffs are effectively trying to run three separate actions as one in circumstances where the facts of each plaintiff's claim must be separate and distinct, and therefore the evidence in relation to each is not common to all. The only matter in common to all plaintiffs is that at different times they were each given what they say is the same advice, namely to invest their money in the same companies or some of the same companies, and that if they had known the true situation and facts they would not have done so.
The defendants' solicitors also wrote to the plaintiffs' solicitors indicating that if each plaintiff would deliver a separate Statement of Claim they would treat each plaintiff as bringing a separate proceeding. The plaintiffs' solicitor responded by letter dated 4th June 2004 stating that it is not true to say that the circumstances giving rise to the plaintiffs' claims are not related in any way, and say that while they were each advised separately, the circumstances giving rise to the claims and the advices given "are almost identical". The letter goes on to elaborate on that advice. Mr Baily submits that it would be in ease of costs, court time and case management to have the plaintiffs' claims dealt with in one proceeding. He states also that it is a case in which discovery of documents will be necessary, and that if there are three sets of proceedings, this will mean a greater overall expense. He also states that it would avoid the possibility of the cases being heard by different judges, possibly with conflicting results.
The plaintiffs' solicitor, Brian Baily has sworn a replying affidavit on the 12th July 2004. He makes the points that he made in his said letter to the defendants' solicitors, and states also that the particulars of breach of contract, and misrepresentations will be the same in for each plaintiff, that there are no differences in the case being made by each, that the factual basis of each claim is identical, and that in any event even if separate claims are brought by each plaintiff, most defendants could be expected to make an application to the Court to have the claoims consolidated and listed together in one hearing.
Mr Baily also quite correctly brings to the Court's attention that in this case, the first intimation that the defendants wished to separate the claims and seek the order presently sought was nine months after the Statement of Claim was delivered, upon receipt of which the defendants' solicitors even raised a Notice for Particulars. He submits that the application is therefore brought late in the day.
It is also a fact that while there are in these proceedings in which three clients of the defendants have joined together for the purpose of making their claims, there are two further sets of proceedings against these defendants in which further groupings of clients have joined together, each making the same claims. It is curious why all the plaintiffs named in all three such proceedings did not all band together for the purpose of one set of proceedings if, as alleged, the claims all arise out of the same transaction or series of transactions. There is an identical motion by the defendants in respect of each of these proceedings, and I have been informed that my decision in this particular proceeding will apply also in the other proceedings.
Brian Murray SC on behalf of the defendants has referred the Court to the judgment of O'Byrne J. in Reddy and others v. Dublin Corporation [1941] I.R. 255, wherein the plaintiffs (thirteen in all) who were all in the employment of Dublin Corporation, each performing different duties according to their different contracts of service, sought declarations that they and the Corporation were within the provisions of the Conditions of Employment Act, 1936. Some plaintiffs were lamplighters, others were caretakers, night-watchmen, labourers and soforth. It was held that the plaintiffs could not be joined together in one action under the then equivalent of the present rule in O.15, r.1(1) RSC as the rights claimed by the plaintiffs did not "arise out of the same transaction or series of transactions" as required by the Rule, their conditions of employment being so diverse. O'Byrne J. stated at p. 259:
"It was conceded by both parties and seems obvious that, if the plaintiffs brought separate actions, common questions of law (e.g. the meaning and effect of the said Act) and of fact (e.g. the nature of the undertaking carried on by the defendants) would arise, and, accordingly, the question for consideration may be further restricted to one point, namely, do the rights claimed by the plaintiffs arise out of the same transactions or series of transactions………
It is difficult to see how their respective rights can be said to arise out of the same transactions or series of transactions. Each of them is separately employed, with his own special duties and terms of employment, depending upon his individual contract. It seems to me that in each case the rights of the particular plaintiff must be determined by reference to the work upon which he is engaged, and this depends upon his own employment and is peculiar to him."
Mr Murray also referred to the judgment of McCarthy J. in Duffy v. News Group Newspapers Limited [1992] 2 I.R. 369 where at page 377 he stated as follows:
"The issue of fact between the several cases is common in that it is the same question – does the article refer to the plaintiff? On the other hand it is a totally separate issue in each case in respect of each plaintiff. In no sense does it correspond to, for example, an issue of negligent driving of a motor vehicle where the issue in respect of a defendant driver must be the same in every sense – was the motor vehicle driven negligently? In each case it is an issue of fact that is wholly distinct from each other case although the question to be addressed in each case is the same."
Mark Sanfey SC on behalf of the plaintiffs has submitted that in the present case the claims against the defendants are the same and arise from a series of transactions. He points to the fact as pleaded in the Statement of Claim at paragraph 4 thereof that the agreements concluded between all the plaintiffs with the defendants, albeit at different times and on an individual basis, are the same and were subject to the same conditions as set out in the said paragraph 4. These matters are common to all plaintiffs in his submission. It is this element of commonality shared by all the plaintiffs which, he submits, brings the claims within the concept of a series of transactions.
Conclusion:
It is agreed that each of these plaintiffs as well as each of the plaintiffs in the other sets of proceedings to which I have already referred were clients on an individual basis of the defendant firm. It appears to be the case that each was advised in relation to their financial and tax affairs on an individual basis, and therefore any advices given were individual to each plaintiff, and any advice given relating to the tax advantages of investing in the companies in question would be related to the individual tax/financial status of each client. The fact that advice of a similar nature may have been given which resulted in each plaintiff making a decision to invest in certain companies and the same misrepresentations are alleged, does not in my view mean that the cause of action arises from the same transaction or series of transactions. It is not akin to the example given by McCarthy J. in Duffy v. News Group Newspapers Limited to which I have referred earlier where he mentioned the issue of negligent driving of a particular vehicle being common to a number of plaintiffs. In the present case each plaintiff has a different story to tell, different both in terms of time and detail. It even appears to be the case, since it is not controverted on affidavit, that different personnel within the defendant firm may be involved in the advice given to the different plaintiffs or at least some of them. In the present situation the raising of particulars and the replies thereto could even be problematical. It seems to me that matters are more clearly dealt with by separate pleading in each case. Some cases may even be appropriate for the Circuit Court if separated from the other plaintiffs' claims.
It is of course desirable as far as possible that, even though the proceedings are separately instituted, some form of case management be undertaken from a cost and time saving point of view when it comes to the determination of the claims. If, as suggested, the evidence of each plaintiff, though individual to each plaintiff and different in detail as a result, in fact, if proven, amounts to the same allegation as to misrepresentation and breach of contract, it would make sense for one of the cases to be run, and that the determination of the issue in one case would so far as that is possible, rule the determination of the other cases. It may not be appropriate to actually consolidate the cases, but some efficiencies of effort, time and cost would seem possible by some form of sensible case management.
I am satisfied that this case has similarities to the situation which arose in Reddy and others v. Dublin Corporation to which I have been referred. I therefore grant the relief sought by the defendants in their Notice of Motion, and I will allow an opportunity to Counsel to address me on the appropriate order to be made in these circumstances, and also in relation to the costs of this motion and the proceedings in each case to date.