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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Monaghan -v- United Drug Public Ltd Company [2014] IEHC 183 (01 April 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H183.html
Cite as: [2014] IEHC 183
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Judgment Title: Monaghan -v- United Drug Public Limited Company Neutral Citation: [2014] IEHC 183 High Court Record Number: 2013 239 CA Date of Delivery: 01/04/2014 Court: High Court Composition of Court: Judgment by: Barrett J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 183 THE HIGH COURT [2013 No. 239 C.A.] BETWEEN MICHAEL MONAGHAN PLAINTIFF AND
UNITED DRUG PUBLIC LIMITED COMPANY DEFENDANT JUDGMENT of Mr. Justice Barrett delivered on the 1st day of April, 2014 1. This case raises the issue of whether a party can seek to have a regular judgment that is obtained in default of defence set aside for surprise in circumstances where its opponent has complied with every rule of procedure and extended every professional courtesy. The case is an appeal from a judgment of the Circuit Court. Facts 3. Perhaps the greatest surprise in this case is that even at this late stage Royal Sun Alliance continued to dally. On 13th and 20th June, 2013, Mr. O'Connell wrote again to Royal Sun Alliance as no defence had yet been forthcoming. No reply issued to these letters or to a separate letter that Mr. O'Connell had sent on 30th May. Mr. O'Connell arranged for a second motion for judgment in default of defence to be issued and served on Royal Sun Alliance under cover letter of 9th July, 2013. It is worth noting that by this date Royal Sun Alliance was not only in breach of the Circuit Court Rules as to the submission of its defence but also in continuing breach of the Circuit Court order in May. It is agreed by all the parties that the second motion was duly served on Royal Sun Alliance. However, despite having been duly served, it was lost within Royal Sun Alliance and neither motion nor the accompanying grounding affidavit has ever been located. On the motion return date, 30th July, 2013, the County Registrar was satisfied that the motion had been duly served and ordered that judgment be given to Mr. Monaghan in default of defence. Despite every rule of procedure having been observed by Mr. O'Connell on behalf of his client, despite every forbearance and professional courtesy having been extended by Mr. O'Connell to Royal Sun Alliance, despite the fact that Royal Sun Alliance repeatedly dallied in this matter and ultimately lost the papers that were duly served upon it, Royal Sun Alliance has nonetheless argued before this Court that the interests of justice require that the judgment in default of defence obtained on 30th July, 2013, should be set aside in order that there might be a full hearing of the defence in these proceedings. Applicable principles
5. In Fox v. Taher (Unreported, High Court, January 24th, 1996), Costello P. was confronted with a case in which there had been mistake on the part of the defendants, rather than surprise. Costello P. noted that:-
6. In Fox, Costello P. was satisfied that, at all times, the defendants in that case wished to contest the jurisdiction of the Irish courts in the matter arising and was of the view that the defendants should be allowed to make their case. In the case before this Court, Royal Sun Alliance has indicated that at all times it wished to argue its defence. Even if the court accepts that this is so, it might perhaps be contended that Royal Sun Alliance had a curious way of achieving its objective in this regard, engaging in protracted delay, contravening the rules as to the timing of a defence, not observing a court order as to when a defence was to be submitted, and ultimately losing documents that were duly served upon it. Certainly it appears to this Court that it would be a most curious notion of justice that would require the court to conclude that when one party to proceedings appears to behave much as it wants while the other behaves exactly as is required, justice nonetheless favours the former over the latter. 7. In Allied Irish Banks plc v. Lyons [2004] IEHC 129 (Unreported, High Court, July 21st, 2004), a case concerning a mistake by a solicitor rather than surprise, Peart J. concluded that the interests of justice required that a summary judgment against the solicitor's client ought to be set aside, rather than leaving the client to a possible remedy against her solicitor in negligence. The court has had close regard to whether the interests of justice might similarly require in this case that the judgment in default of defence ought to be set aside on the basis that United Drug should not suffer for its insurer's actions. However, it appears to the court that in all the circumstances of the case, this is a matter that falls to be resolved between United Drug and Royal Sun Alliance, two sophisticated commercial institutions that are capable of defending their respective interests. The interests of justice do not appear to the court to require that the consequences of Royal Sun Alliance's actions or inactions ought to be visited on Mr. Monaghan whose advisors have at all times acted in compliance with the applicable rules of court and principles of professional courtesy. 8. For the reasons stated above, the court concludes that neither the interests of justice nor other special circumstances require that the Circuit Court judgment in default of defence, as obtained by Mr. Monaghan on 30th July, 2013, be set aside.
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