[2018] IEHC 22
THE HIGH COURT
[2014 No. 6748 P.]
FELIX GROVIT
PLAINTIFF
DEFENDANT
DECISION of Mr Justice Binchy delivered on the 17th day of January, 2018
1. This is an application brought by the defendant pursuant to O.13, r.11 of the Rules of the Superior Courts, whereby he seeks to have set aside orders made by this Court on 8th December, 2014 (O'Malley J.) and 9th July, 2015 (Kearns P.). The background to those orders, and to this application, is somewhat unusual.
2. In May 2010, the defendant obtained a judgment against a company of the name Carigna Investments N.V. ("Carigna") which, according to the defendant, trades under the name Chequepoint Netherlands. According to the defendant's grounding affidavit, Carigna is registered in Curacao, an island in the Caribbean, but the defendant obtained the judgment referred to in the Dutch Courts, pursuant to which he was awarded damages of €3,858,411.00, together with costs and interest calculated from 5th February, 1999. It is claimed that when interest is added, Carigna is now indebted to the defendant for an amount exceeding €15 million.
3. The defendant further claims that Carigna has no assets with which to discharge the judgment which he has obtained against it, and that this is owing to the actions of the plaintiff and his son, Stefan Grovit. The defendant claims that the plaintiff and Stefan Grovit have control over Carigna and that they have exercised that control so as to strip Carigna of its assets and thereby deny the defendant of the benefit of the judgment that he has obtained against Carigna.
4. The defendant has advanced these claims against the plaintiff and Stefan Grovit in proceedings in the Dutch Courts (the "Grovit" proceedings). The Grovit proceedings are currently stayed pending the final determination of these proceedings. The procedural history of the Grovit proceedings is summarised by an affidavit sworn on behalf of the defendant in these proceedings by his Dutch lawyer, namely Mr. Hendrik Jan Bos. In this affidavit, Mr. Jan Bos avers that because the plaintiff's address was unknown, and because his lawyer refused to accept service of documents, it was necessary to publish a notice in newspapers both in the Netherlands and in England putting the plaintiff and Stefan Grovit on notice of the Grovit proceedings and in particular proceedings scheduled to take place at a session of the Amsterdam Court on 19th August, 2014. This notice (the "Notice"), which appeared in The London Times on 19th June, 2014 was in the following terms:-
"Public Notices
Mr. Felix Fareed Ismail Grovit and Mr. Stefan Carim Ismail Grovit. Through my summons dated 13th June, 2014, I have at the request of Hendrik Jan Jansen, living in Amsterdam, the Netherlands, chosen address (1075AA) Amsterdam, the Netherlands, Koningslaan 17, at the offices of Bos and Partners Advocaten, H.J. Bos, Attorney, summoned as witnesses: Mr. Felix Fareed Ismail Grovit and Mr. Stefan Carim Ismail Grovit, both with no known address or whereabouts inside or outside the Netherlands, to appear in person on 19th August, 2014 at 9:30hrs at the session of the Amsterdam Court, Paknassusweg 220, Amsterdam, the Netherlands, to be heard, at the request of Hendrik Jan Jansen under oath as a witness, within the scope, the preliminary hearing as allowed by the Amsterdam Court on 20th March, 2014, regarding the facts as outlined in the petition which can be inspected at the offices of H.J. Bos, aforementioned, bit (sic) not exclusively, the position of the witness at Carigna Investments N.V., trading as Chequepoint Netherlands, from February 1999 up and until February 2013."
5. Mr Jan Bos avers that this notice was published with the authority of the judge presiding in the Amsterdam Court at the preliminary hearing. Mr Jan Bos said that this permission was obtained from the presiding judge through contact made with that judge by Mr Jan Bos's firm, by telephone. Accordingly, there is no formal record of that order.
6. In any case, the notice came to the attention of the plaintiff who claims that the contents of the notice are defamatory of him, and as a result of which the plaintiff issued these proceedings. The plenary summons issued on behalf of the plaintiff states that the publication was available in this jurisdiction and it is apparently on that basis that the proceedings were issued in the State, but it was never explained, at the hearing of this application at least, why the plaintiff chose to advance proceedings for defamation of his character in this jurisdiction rather than England, where the plaintiff resides, and in which jurisdiction The Times must surely have its principal circulation.
7. The plaintiff's solicitors then purported to serve these proceedings on the defendant at the address stated in the Notice i.e. the address of the defendant's lawyers in Amsterdam. This service was effected by registered post, by the solicitors acting on the plaintiff's behalf. The plaintiff also claims that documents in these proceedings were served personally on the defendant by the plaintiff's lawyers in the Amsterdam Court in August 2014.
8. The defendant acknowledges his awareness of these proceedings but claims that they were never properly served upon him and accordingly he had no obligation to enter in an appearance to the proceedings or otherwise engage with the same. In para. 21 of his affidavit grounding this application, the defendant avers as follows:-
"I was aware of the existence of the Irish defamation proceedings, which were repeatedly mentioned by the plaintiff in the context of the Grovit Proceedings. However, since I was never validly served in accordance with EU and Dutch law, I say and am advised that I was under no obligation to enter an appearance in those proceedings. I say and I am advised that valid service of an originating notice of summons was a necessary precondition for the court to assert extra-territorial jurisdiction in this case, and the court has no discretion to overlook the plaintiff's failure to follow the service procedures laid down by EU and Dutch law."
9. So it is not in dispute that the plaintiff was aware of these proceedings; on the contrary, he deliberately elected not to engage with these proceedings because he was advised that he had not been properly served with the same. As a result, a motion for judgment in default of appearance issued in October 2014, and came on for hearing before O'Malley J. on 8th December, 2014. This motion was grounded upon an affidavit of service of a Kieran Friel, a trainee solicitor in the office of the plaintiff's solicitors wherein he deposed as to service of the proceedings upon the defendant. In para. 4 of his affidavit Mr. Friel avers:- "I say that I caused the plenary summons dated 1st August, 2014 to be served on the defendant on 20th August, 2014 by sending a true copy of same by pre-paid registered post to the address chosen by the defendant and printed in The Times newspaper on 19th June, 2014. I say same was received and was not returned. I beg to refer to a copy of the postal receipt upon marked with the letters "KF3" and a copy of the tracking receipt showing that it was delivered and upon marked with the letters "KF4" I assigned my name prior to the swearing hereof. I further beg to refer to the affidavit of service for myself dated 29th October, 2014."
10. Mr. Friel also avers in this affidavit that a draft of the plenary summons was served on the defendant on 1st August, 2014 by registered post and by email. He further avers that:- "after the draft plenary summons was served on the defendant these proceedings were discussed at court in Holland by the defendant and his legal representative on 19th August, 2014. I say that the draft plenary summons was served on the same address as the plenary summons. I therefore believe that the defendant is fully aware of the within proceedings herein but has not entered an appearance."
11. The order of O'Malley J. of 8th December, 2014 records in the usual way that the court read the affidavit of service and the plenary summons, as well as the statement of claim which was filed by the plaintiff in lieu of delivery on 12th November, 2014. There being no appearance, O'Malley J. ordered that the plaintiff do recover against the defendant such amount as the court may assess in respect of the plaintiff's claim for damages and the costs of suit on taxation, and that such assessment be before a judge sitting with or without a jury and be set down for hearing accordingly. This assessment subsequently came before Kearns P. on 9th July, 2015, the defendant having been notified (through his lawyers) of the trial date. On 9th July, 2015, Kearns P. made an order pursuant to s. 30 of the Defamation Act 2009 that the plaintiff be authorised to publish a notice in terms attached to the order, in an Irish newspaper, for the purposes of correcting the notice published in The Times newspaper on 19th June, 2014. The court also ordered that the plaintiff do recover against the defendant the costs of these proceedings, when taxed and ascertained. The correction notice ordered by Kearns P. was in the following terms:- "Take notice that on 9th July, 2015, the High Court of Ireland, in proceedings entitled Felix Grovit (plaintiff) v. Hendrik Jan Jensen (defendant) Record No. 2014/6748 P. made a correction order pursuant to s. 30 of the Defamation Act 2009 authorising the plaintiff in the aforementioned proceedings to publish, in an Irish newspaper, this notice for the purposes of correcting a notice published in The Times newspaper on 19th June, 2014 by confirming that, in these proceedings, the defendant has not contested assertions made by the plaintiff that the plaintiff is not a director or shareholder and has not otherwise been involved in the running of a company known as Carigna Investment N.V., nor has the defendant contested the plaintiff's assertion that the plaintiff is not liable for any debt or obligation of the said company or personally indebted to the defendant."
12. Although service of this order was not recorded on affidavit by the plaintiff for the purposes of this application, the plaintiff Counsel's submission on this application states that the order of Kearns P. was served on 27th August, 2015 upon the offices of Mr Jan Bos. Subsequently, on 28th October, 2015, a summons to tax was sent to the offices of Mr Jan Bos giving a return date of 14th January, 2016. There was no attendance by the defendant before the Taxing Master on that date, and so the matter was adjourned to 14th April, 2016. On 12th April, 2016, the plaintiff's legal advisors received a letter from Eversheds solicitors stating that they would be coming on record on behalf of the defendant, and thereafter the taxation hearing has been adjourned on a number of occasions. This motion was filed on 1st June, 2016. The defendant entered a conditional appearance to these proceedings on 10th May, 2016.
13. Notwithstanding having obtained a correction order from Kearns P., the court was informed that the plaintiff did not in fact publish the correction order. Why this is so is a matter entirely for the plaintiff, and is of no particular relevance to this application. The defendant has advanced this application on the following grounds:-
(i) Firstly, as indicated above, it is the defendant's contention that he was never properly served with these proceedings, either in accordance with EU law or Dutch law. The EU law to which he refers and upon which he relies in this context is of course Regulation (EC) 1393/2007 of the European Parliament and of the Council on the Service in member states of Judicial and Extrajudicial Documents in Civil or Commercial Matters - also known as the "Service Regulation". The defendant argues that Article 14 of the Service Regulation, upon which the plaintiff relies, does not confer on individuals the right to serve documents by post, but confers that right only on member states. Accordingly, insofar as the plaintiff purported to serve the proceedings herein directly upon the defendant, by registered post, this was not in compliance with the Service Regulation. Moreover, the defendant contends that service by registered post must, in general, be by way of delivery directly to the person concerned, or, under Dutch law, by way of delivery by a Dutch bailiff.
(ii) Insofar as the plaintiff argues that the defendant gave authority, via the Notice to serve proceedings on the defendant at the offices of his lawyers, such authority was confined to the proceedings to which the Notice relates and did not extend to these proceedings. Alternatively, insofar as the plaintiff relies on the Notice as designating the defendant's lawyer for service of the proceedings, then the Service Regulation has no application by reason of Article 1.2, thereof ,which provides that "this Regulation shall not apply where the address of the person to be served with the document is not known", and the plaintiff was therefore obliged to comply with the requirements of Dutch law as to service. However, the plaintiff has failed to do so because the defendant's lawyers did not have an unequivocal authority to accept service of these proceedings, which is a requirement of Dutch law.
(iii) The plaintiff placed inaccurate and misleading information before the court at the hearing of the motion for judgment. In this regard, the plaintiff informed the court that the defendant had nominated his lawyers to accept service of proceedings, and the defendant says he had not done so. It is also argued that the plaintiff put before the court an incorrect interpretation of a letter exhibited to Mr. Friel in his grounding affidavit, from the Dutch lawyer for Carigna. In particular, it is argued that Mr. Friel averred that this letter stated that the defendant had been served properly in accordance with the Service Regulation and the laws of the member state in which he is resident, when in fact the letter did not say that at all. The defendant also alleges that the plaintiff failed to disclose to the court, when applying for judgment, that the plaintiff had issued identical proceedings in the Dutch courts , against the defendant's lawyer, and that those proceedings were dismissed.
(iv) The plaintiff failed to comply with s. 8 of the Defamation Act 2009 by failing to serve and file an affidavit of verification in respect of matters of fact referred to in the pleadings in these proceedings.
(v) The plaintiff failed to comply with O.4, r.1A of the Rules of the Superior Courts, identifying the provision or provisions of Council Regulation (EC) No. 44/2001 (the "2001 Regulation") under which the court should assume jurisdiction. While the plaintiff did identify a provision of the 2001 Regulation, he identified Article 5(1) which relates to matters of contract, which has no relevance to these proceedings.
(vi) Since the defendant is not an Irish citizen, the plaintiff was required by O.11A, r.6 of the Rules of the Superior Courts to serve the defendant with a "Notice of Summons" in lieu of a summons, and the plaintiff failed to do so.
14. For any one of or for all of the foregoing reasons, the plaintiff contends that the orders of O'Malley J. and Kearns P. were irregularly obtained and should be set aside. In addition, the plaintiff contends that even if the court does not accept these arguments and finds that the orders were obtained in a regular manner, it should nonetheless be set aside because the defendant contends that he has a strong defence on the merits to the proceedings. It is argued that all the Notice does is to describe an order of the Amsterdam Court whereby the plaintiff and his son had been summoned to give evidence in Dutch civil proceedings. It is argued that such a Notice would benefit from either qualified privilege and/or absolute privilege under the Defamation Act 2009 and/or at common law. It is also argued that the Notice does not bear the defamatory meanings pleaded by the plaintiff as it does not refer to the nature of the court proceedings or even describe the same as debt proceedings. A statement that the plaintiff has been summoned to give evidence in Dutch proceedings is not defamatory.
Applicable Principles
15. The jurisdiction of the court to set aside a judgment obtained in default of appearance is contained in O.13, r.11 of the Rules of the Superior Courts, 1986. That order provides as follows:-
"Where final judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the court to set aside or vary such judgment upon such terms as may be just."
16. The rules have been subjected to some analysis and perpetration, most recently in the case of McGrath v. Godfrey [2016] IECA 78, wherein Irvine J. set out the applicable principles at paras. 20-23 as follows:- " 20. It is clear from this rule that the relief that may be afforded to an applicant is one which is at the Court's discretion. However, the rule provides no guidance as to the circumstances in which a Judge might exercise that discretion and neither does it seek to impose any time constraints upon the intended applicant. Helpful assistance in relation to the first of these matters is however to be found in the decision of Peart J. in Allied Irish Banks plc v. Lyons [2004] IEHC 129, in which he emphasised the breadth of the discretion conferred by the rule and the necessity for the Court to seek to achieve justice for both the plaintiffs and the defendant. This is what he said at p. 4 of his judgment:-
"Clearly a wide discretion is given to the Court in its task of achieving justice between the parties, but the interests of both parties must be taken into account in the weighing exercise undertaken by the Court in considering the interest of each party, and not simply the hardship and distress pleaded on behalf of the applicant in this case."
21. It is usual for an applicant who seeks relief under Ord. 13, r.11 to be in a position to demonstrate that there was some sort of irregularity in the proceedings or the procedure whereby the judgment was obtained. Where such an irregularity is established the Court will normally set aside the judgment without enquiring into the merits of the applicant's proposed defence and will do so without the imposition of any terms. The logic which underpins this approach is that given that the judgment should never have been obtained in the first place the parties should rightly be restored to the position they would have enjoyed had judgment not been so obtained. This is what Clarke J. stated at para. 2.1 of his judgment in O'Tuama v. Casey [2008] IEHC 49 concerning the jurisdiction of the Court in such circumstances:-
"[W]here judgment is obtained irregularly, the court will normally set aside the judgment without enquiring into the merits of the proposed defence. The logic of this position is that the judgment should not have been obtained in the first place and a plaintiff who has obtained judgment irregularly should not have any benefit by reason of having obtained judgment in that fashion. On the other hand, where judgment is obtained regularly, the court may, nonetheless, be persuaded to set aside the judgment so as to permit the defendant to defend the proceedings but will only do so after considering the possible merits of the defence which the defendant would wish to put forward."
22. It is important in this context to note that the Court will demand proof of strict compliance with the Rules of Court by a party who seeks to stand over a judgment obtained in default of appearance. This, in my view, is extremely important having regard to the potential grave consequences for any defendant against whom judgment is obtained, as is aptly demonstrated by the matters deposed to by Mr. Godfrey in the present case. In this case the plaintiffs maintain that that they strictly complied with the relevant Rules of Court and that the affidavits of Mr. Kennedy and Mr. McGlynn clearly establish that the service effected on Mr. Godfrey was in compliance with the Court orders earlier referred to.
23. If, a court is satisfied that a plaintiff obtained judgment in an entirely regular manner, the defendant who seeks to set aside that judgment faces a significantly enhanced burden of proof. The relevant principles would suggest that they must demonstrate first that they have a bona fide defence to the proceedings. After all, it would be wholly unjust to a plaintiff if a court were to set aside a judgment which they had obtained unless it was satisfied that it was doing so for the purposes of enabling a defendant mount a credible defence to the proceedings. In this regard Peart J. in Allied Irish Banks plc v. Lyons accepted that the threshold to be met by the defendant was higher than merely establishing an "arguable case". He adopted the threshold approved of in The Saudi Eagle [1986] 2 Lloyd's Reports 221, where it was held by Sir Roger Ormrod that it was insufficient to establish an "arguable case". It was necessary for the applicant to demonstrate that their intended defence had a "real chance of success". Secondly, the applicant must convince the court that, having regard to all of the relevant circumstances and in particular the interests of each of the parties, the balance of justice would favour the setting aside of the judgment."
17. So the first question to be asked is whether or not there were any irregularities in the proceedings or the procedure whereby the plaintiff obtained judgment? Therefore I turn now to address the irregularities referred to above which the defendant claims attended the judgment. I will then address the defendant's claim that he has a good defence to these proceedings. However, I should mention at this juncture that the plaintiff also argues that even if the Court concludes that there are grounds for setting aside judgment (which of course the plaintiff denies), the defendant should not succeed with this application on grounds of delay. I address that issue at the conclusion of this judgment.
(I) Service Not Correctly Effected
18. The service principally relied upon by the plaintiff for the purposes of obtaining judgment was the service of the plenary summons on the defendant's lawyers by registered post on 20th August, 2014. I should mention however that it is also argued that the defendant was served in person with the "relevant documentation" in court in Amsterdam on 19th August, 2014, this service was not referred to in the affidavit of Mr Friel, even though he refers to the proceedings being discussed by the parties "at court in Holland … on 19th August, 2014". There is no affidavit of service as regards the personal service of the proceedings on the defendant. It follows that the court, in giving judgment in favour of the plaintiff, did not rely on such personal service, but to the extent that the plaintiff now does so the only evidence of the same is contained in the plaintiff's second affidavit in response to this application dated 5th January, 2017 in which the plaintiff states that "I say and believe that the defendant was himself personally served with a full set of relevant documentation in court in the Netherlands on 19th August, 2014 including a copy of the Irish High Court search showing that these proceedings had been issued along with a copy of the draft plenary summons previously exhibited at KF7 to the affidavit of Kieran Friel sworn on 30th October, 2014." But the plaintiff does not say he himself served the documentation and does not identify who did so. Accordingly, this averment of the plaintiff must be treated as hearsay.
19. The question that arises therefore is whether or not service upon the defendant's lawyers in Amsterdam, by registered post, constitutes good service either pursuant to the Service Regulation, Dutch law or indeed Irish law. The plaintiff relies on Article 14 of the Service Regulation which states:-
"Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent."
20. The defendant argues that the reference to "each Member State" limits the application of Article 14 to service of documentation by organs of State. The plaintiff argues that this is not so and argues that Article 14 is merely an alternative method of service to that provided for elsewhere in the Service Regulation, and is available to all those involved in litigation in member states, where service is necessitated between member states. The plaintiff argues that the purpose of the Service Regulation, as identified in Recital 2 of the same, is to "improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States" . The plaintiff submits that Article 14 entitles individuals to serve proceedings directly by registered post, and that the plaintiff was entitled to do so at the address nominated by the defendant in the Notice. The plaintiff also relies upon O.11D of the Rules of the Superior Courts as inserted by S.I. No. 280 of 2009 for the purposes of giving effect to the Service Regulation. Order 11D, rule 4(1) provides that:- "In addition to the method of service described at rule 3, a party to proceedings may choose to effect service in another Member State by diplomatic or consular agents in accordance with Article 13 of Regulation No. 1393/2007 (save where that Member State has indicated opposition to such method of service, in accordance with Regulation No. 1393/2007), by registered post in accordance with Article 14 of Regulation No. 1393/2007 or by direct service in accordance with Article 15 of Regulation No. 1393/2007."
21. It is clear from the foregoing that, to the extent that r. 11.D.4 permits service of proceedings by registered post, it does so within the parameters of Article 14 of the Service Regulation. So the question of interpretation of Article 14 remains: is it confined in its application to use by the Member States themselves, or does it extend to individuals involved in litigation?
22. When the entire structure of the Service Regulation is looked at, I think it is clear that it is the former only. The Service Regulation requires Member States to designate public officers, authorities or other persons as "transmitting agencies" and "receiving agencies" for the purpose of transmitting and receiving documents as between Member States. It sets out the procedures for transmission and service of documents. Article 4.1 provides that:-
"Judicial documents shall be transmitted directly and as soon as possible between the agencies designated pursuant to Article 2."
It provides that documents to be served are to be transmitted by a transmitting agency to a receiving agency, which agency is then charged with service of the documents. The Service Regulation also sets out how documents may be served by a receiving agency. All of this is done in s. 1 of the Service Regulation.
23. Article 14 is contained in s. 2 of the Service Regulation under the heading of "other means of transmission and service of judicial documents". It is clear to me that Article 14 is intended to afford to a transmitting agency the option of serving documents by registered post (or equivalent) on a party in another Member State, rather than serving through a receiving agency. It is not intended, in my view, to confer that entitlement upon the litigant himself.
24. This view is, I think, affirmed by article 15 which confers on litigants themselves another option as regards service. Article 15 provides :-
"Any person interested in a judicial proceeding may effect service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State addressed where such direct service is permitted under the law of that Member State."
25. While this article clearly does confer a right on a litigant directly, it is a right to arrange for service of the documents concerned in accordance with the laws of the member state in which they are to be served. In this case the defendant says that the documents were not served in accordance with Dutch law and that has not been disputed by the plaintiff. The plaintiff relies on Article 14 of the Service Regulation and the address given for the defendant in the Notice, and not on any provisions of Dutch law.
26. Order 11D of the Rules of the Superior Courts defines "transmitting agency", as regards the State, as meaning "the Offices of the County Registrar or such other public officers, authorities or other persons as are for the time being designated by the State pursuant to Article 2(1) of Regulation No. 1393/2007."
27. Rule 3(1) of Order 11D then goes on to provide that "any party to any proceedings to which Regulation No. 1393/2007 applies, who wishes to have a document served pursuant to Regulation No. 1393/2007, (in this Order referred to as the "requesting party") may lodge with the transmitting agency …" The documents required to be served, together with the fees applicable to the request.
28. I have already set out above O.11D, r.4(1) which provides additional methods of service to those described at rule 3. It is true that these are conferred on "a party to proceedings", and that it states that a party to proceedings may choose to affect service by registered post in accordance with Article 14 of Regulation 1393/2007. However, for the reason that I have given above I do not believe that Article 14 confers any right directly on litigants and this text appearing in O.11D, r.4 is in my view based on a mistaken interpretation of Article 14 of the Service Regulation and is of otiose because there is no right conferred on individual litigants by Article 14 of the Service Regulation. This interpretation of the Service Regulation is consistent with the manner in which it has been interpreted in England where, according to Delaney and McGrath, Civil Procedure in the Superior Courts, 3rd ed.3-30, a system has evolved whereby documents are served through the Aldwych post-box system, whereby a plaintiff makes an application for leave to serve the proceedings by means of registered post, and having obtained that leave, does so on the behalf of the English courts.
29. Service by registered post aside, a further difficulty with service also arises insofar as the plaintiff chose to serve the defendant at the address stated in the Notice. It appears that the plaintiff did this because the plaintiff had no other address for the defendant and in any case the plaintiff argues that he is entitled to serve at the address nominated by the defendant. Two issues arise in relation to this argument. Firstly, as mentioned above, the Service Regulation itself states, at Article 1.2, that "this Regulation shall not apply where the address of the person to be served with the document is not known". Accordingly therefore, if the plaintiff did not know the address of the defendant, the Service Regulation (upon which the plaintiff relies) did not apply at all and instead it was incumbent on the plaintiff to apply to the court for an order for service outside the jurisdiction before the issue of proceedings, pursuant to O.11 of the Rules of the Superior Courts , and the plaintiff did not do so. Secondly, the Service Regulation makes no provision at all for service upon an authorised agent of a party. All it has to say about authorised agents is set out in Recital (8), which states that the Regulation does not apply to service of a document on the party's authorised representative in the Member State where the proceedings are taking place, regardless of the place of residence of that party. That Recital is of no assistance one way or another because the proceedings are taking place in this jurisdiction, and not in the Netherlands and the plaintiff has purported to effect service not in the jurisdiction where the proceedings are taking place i.e. the State, but on the address given for the plaintiff, in another jurisdiction,
30. Moreover, the terms of the Notice are unclear. Almost certainly, this is as a result of the Notice being drafted in Dutch in the first instance. What is clear however is that it provides an address for the defendant, which is the address of his lawyers in Amsterdam. However, it does so in the context of specific proceedings which are already in being between the parties. I do not think that it can be inferred from the Notice that the defendant was authorising his lawyers to accept service of any other legal proceedings or was providing an address in the Notice for any purpose other than the proceedings to which the Notice relates. After all, at that moment in time, the defendant had no knowledge of even the possibility of these proceedings, because it was the Notice itself which gave rise to these proceedings.
31. Lawyers acting on behalf of a party in one set of legal proceedings do not have a general authority to accept proceedings on behalf of that party. Such an authority must be expressly conferred. There can be very good reasons why a party would not wish to confer such an authority on lawyers already acting on his or her behalf, and would not wish to instruct the same lawyers in all matters, even where there may be a relationship between the matters concerned, such as in this case. In my view, the Notice did not authorise service of the proceedings on the lawyers acting on behalf of the defendant. In the absence of a clear authority from his lawyers regarding acceptance of service of these proceedings, if the plaintiff knew the address of the defendant (and it appears he did not) it was incumbent on him to follow the procedures prescribed by the Service Regulation or O.11D, r.4 of the Rules of the Superior Courts. Alternatively, as said above, if he did not know the address of the defendant, he should have made application for an order for service outside the jurisdiction.
32. It is clear from the above that there were at least two errors in the service of the proceedings, the first being that the plaintiff purported to serve by registered post and the second being that he treated the Notice as authorising acceptance of service by the defendant's Dutch lawyers in the "Grovit" proceedings, on the basis of the contents of the Notice. It is fair to say that much of this was understandable, but nonetheless it follows that there were irregularities in the manner in which these proceedings were served on the defendant.
33. Having said all of that, it is clear that the defendant was fully aware of the proceedings, and that for all practical purposes they were served on the defendant. It is also clear that the defendant, following consultation with his lawyers, took a decision to ignore the proceedings and subsequent correspondence that followed the service of the proceedings on the defendant's lawyers warning that application for judgment in default of appearance would be made. Moreover, at no stage did the defendant's lawyers inform the plaintiff's lawyers that they did not have authority to accept service of proceedings. I have little doubt but that all of this was a strategy adopted by the defendant in consultation with his lawyers. As likely as not, the defendant, upon the advice of his lawyers, made a decision to run the risk that judgment in default of appearance might be granted, either because judgment against him in these proceedings was unlikely to matter or because in such event the defendant would, if necessary, apply to have the judgment set aside on the grounds that service of the proceedings was deficient.
34. From a review of the affidavits, it seems to me that both parties were playing a game of cat and mouse as regards service of proceedings. The courts should not allow themselves to be used as a vehicle to permit such behaviour. While I agree with the submissions made on behalf of the defendant that the Court is obliged to ensure adherence to the Service Regulation, it is clear from the terms of the Regulation itself that achieving efficient, speedy and verified service of court documents are the key objectives of the Service Regulation.
35. Futhermore, the Service Regulation is entirely silent as to what should happen in the event that a court is satisfied that a party has, for all practical purposes, been served with proceedings and is aware of the same, even though there has not been compliance with the provisions of the Service Regulation. The defendant submits that it is incumbent upon the Court to enforce the provisions of the Service Regulation and that failure to adhere to the same is fatal to the service of the proceedings and any subsequent actions. In his affidavit in support of his application, the defendant's Dutch lawyer, Mr Jan Bos, avers that:-
"I am also aware that, as a matter of Irish procedural law, the primary purpose of service requirements is to ensure that proceedings are brought to the attention of the parties and, in certain cases, domestic procedural rules empower the court to choose to overlook non-compliance with formal service requirements in cases where the party concerned had knowledge of the proceedings. However, again, these domestic procedural rules are not relevant in the present context. Compliance with harmonised EU law requirements on service constitutes a precondition to a domestic court's jurisdiction. The Service Regulation does not confer upon the domestic court a discretion to overlook noncompliance with the harmonised EU rules on service."
36. While that is all very well, as I have said above, the Service Regulation does not deal with the situation that has arisen in this case, which is that a party has for all practical purposes been served with proceedings and has acknowledged his awareness of the same, but has chosen, with the benefit of legal advice, to ignore the proceedings. More significantly however, the |Service Regulation simply did not apply in this case , because of Article 1.2 thereof.
37. Mr Jan Bos is of course correct that in this jurisdiction the courts have sometimes seen fit to treat with rules as to service as a means to an end, and not an end in themselves. So that generally speaking, when a court is satisfied that service has been effected on a party, deficiencies in formal procedures as to service may be overlooked in appropriate cases, and service deemed good notwithstanding that there has not been strict compliance with the rules. That is not to say that parties are encouraged to disregard formal procedures as to service, not least because those are the procedures that have been designed and put in place so as to ensure service of proceedings on parties to litigation as well as a means of verifying such service.
38. In the context of an application to set aside judgment in default of appearance, the plaintiff relies on a number of cases in which the courts in this jurisdiction have held that in such an application, which is based upon an irregularity in service, the defendant must satisfy the court that he did not have notice of the proceedings. These are: Royal Bank of Ireland v. Nolan (1958) 92 ILTR 60 and the more recent case of Danske Bank A/S t/a Dankse Bank v. John Meagher [2014] IESC 38. In the latter case, Laffoy J. said at para. 45:-
"On the authority of the decision in Royal Bank of Ireland v. Nolan , to maintain an application to set aside the judgment on the basis of irregularity in service, the onus was on the appellant to establish that he did not have notice of the proceedings before judgment was ordered."
39. In Royal Bank of Ireland v. Nolan , Dixon J. stated:- "One could not overlook the fundamental purpose of service which was to give the defendant notice and sufficient warning of the proceedings that he might have to contest. An application like the present to set aside a judgment has to be made in good faith, and all the circumstances must be put before the court. One circumstance must be that there was a possibility of a miscarriage of justice by reason of no service. For this reason, the requirement was fundamental to applications of this kind that the defendant did establish that he had no notice of the proceedings and did not have an opportunity of notice."
40. So therefore while there has been an irregularity in service upon the defendant, in my view, in considering whether or not to accede to the application of the defendant (on this ground), the court is quite entitled to take into account the fact that the defendant has at all times been aware of these proceedings.
(II) Allegation of the giving of inaccurate/incomplete information on application for judgment
41. I do not consider that there is any substance in this argument. In so far as the defendant argues that the plaintiff misled the court by informing it that the defendant had nominated his Dutch lawyers to accept service of proceedings, this was based on the Notice which was opened to the court. Likewise the letter exhibited by Mr Friel form the Carigna lawyer was there for the O'Malley, to see and to draw her own conclusions as to its meaning. As to the proceedings issued by the plaintiff against the defendant's Dutch lawyer, these did not arise out of the Notice, and there was not in my view any need to inform the Court about the same. Those proceedings , and the outcome of the same, could have no bearing on these proceedings.
(III) Failure to serve an affidavit of verification
42. Section 8 (1) of the Defamation Act 2009 (the "Act of 2009") provides:-
"Where the plaintiff in a defamation action serves on the defendant any pleading containing assertions or allegations of fact, the plaintiff (or in the case of a defamation action brought on behalf of an infant or person of unsound mind by a next friend or a committee of the infant or person, the next friend or committee) shall swear an affidavit verifying those assertions or allegations."
43. Section 8 (5) of the Act of 2009 provides:- "An affidavit under this section shall be sworn and filed in court not later than 2 months after the service of the pleading concerned or such longer period as the court may direct or the parties may agree.
44. It is common case that no affidavit of verification was sworn by the plaintiff and served on the defendant, or filed in the central office. The plaintiff contends that this obligation is only triggered upon the service of a statement of claim. It is argued that the function of a plenary summons is merely to give the defendant notice of the general nature of the plaintiff's claim and that the plenary summons is simply used as a means of instituting proceedings and is followed by a statement of claim which sets out with particularity the precise nature of the plaintiff's claim. In this case the statement of claim was filed in the central office, on 12th November 2009, but was not served on the defendant.
45. The plaintiff also relies upon O.13A, r.3 of the Rules of the Superior Courts which provides that:-
"3. In the case of default of appearance by any defendant to an originating summons, the plaintiff shall:
(1) in the case of a plenary summons, (other than a personal injuries summons as defined in Order 1A), deliver a statement of claim by filing the same in the Central Office; or,
(2) in the case of a special summons file a grounding affidavit in the Central Office; or,
(3) in the case of a personal injuries summons, a summary summons or any other originating document, file an affidavit in the Central Office verifying the facts relied upon,
and thereupon may apply to court for a judgment in default of appearance."
46. The plaintiff argues that since these proceedings are not personal injury proceedings, an affidavit of verification was not required to be filed in the central office at the time of filing the statement of claim in the central office. The statement of claim was filed in the central office, for the purpose of obtaining judgment, on 12th November 2014, but was not served on the defendant. Accordingly, in the plaintiffs submission, there was no obligation to have filed an affidavit of verification, under either s.8 of the Act of 2009, or under O.13A of the rules of the Superior Courts.
47. While this argument is persuasive, the language of s 8 (1) of the Act of 2009 is unambiguous. The plenary summons is undoubtedly a pleading to which the section applies. As would be expected, there are allegations of fact in the plenary summons. The fact that the case is pleaded with greater particularity in the statement of claim does not exonerate the plaintiff from the need to comply with the statutory obligation created by s. 8 (1) of the Act of 2009. Taking the date of service of the proceedings as contended for by the plaintiff i.e. the 20th August, 2014, the plaintiff was obliged to swear and file in court an affidavit of verification no later than 20th October, 2009. Furthermore, the plaintiff should in my view have delivered a further affidavit of verification in relation to the statement of claim no later than 12th January, 2014, as the case remained to be assessed . The plaintiff has therefore obtained judgment in the default of appearance without having complied with the mandatory statutory obligation created by s. 8 of the Act of 2009.
(IV) Failure to comply with Order 4 rule 1A of the Rules of the Superior Courts
48. Order 4, rule 1A of the Rules of the Superior Courts, as inserted by S.I. No. 506 of 2005: Rules of the Superior Courts (Jurisdiction, recognition, enforcement and service of proceedings) 2005 provides as follows:-
"1A. Where an indorsement of claim on an originating summons concerns a claim which by virtue of Regulation No. 44/2001(the "2001 Regulation"), Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention, the Court has power to hear and determine, the following provisions shall apply:
(1) The originating summons shall be endorsed before it is issued with a statement that the Court has the power under Regulation No. 44/2001, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention to hear and determine the claim and shall specify the particular provision or provisions of Regulation No. 44/2001, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention (as the case may be) under which the Court should assume jurisdiction; and….."
49. In these proceedings there was endorsed on the plenary summons what the defendant accurately describes as a barely legible handwritten endorsement inviting the Court to assume jurisdiction to hear the claim under the provisions of Article 5 (1) of Council Regulation (EC) No. 44/2001. Article 5 (1) of that Regulation refers to matters of contract. So the endorsement on the plenary summons clearly invokes an incorrect jurisdiction. The jurisdiction as regards defamation is to be found in Article 5 (3) of the 2001 Regulation which refers to, inter alia , matters relating to tort.
50. In response to this point, the plaintiff refers to O.124 of the Rules of the Superior Courts which states that non compliance with these rules shall not render any proceedings void unless the court shall so direct. The plaintiff also refers to O.28, r.1 which provides that the Court may at any stage of the proceedings allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as the court may consider just. The plaintiff refers to the well known case of Croke v. Waterford Crystal Ltd [2005] 2 IR 383 in which the Supreme Court affirmed a long line of English authorities as regards amendment of pleadings, to the effect that amendments to the same should be permitted provided it can be done without injustice to the other party. The plaintiff also relies on O.19, r.26 of the Rules of the Superior Courts which states that "no technical objection shall be raised to any pleading on the ground of any alleged want of form".
51. It is submitted by the plaintiff that if the court is of the view that the endorsement is defective, the defendant has suffered no prejudice and will suffer no prejudice by permitting the plaintiff to amend the endorsement to refer to Article 5 (3) of the 2001 Regulation rather than Article 5 (1). In addressing this issue, the plaintiff also places significant emphasis on the delay on the part of the defendant in bringing forward this motion and in this regard refers to the decision of Costello J. in Petronelli v. Collins , (Unreported, High Court, Costello P. 19th July, 1996)
52. For his part, the defendant relies upon what he describes as a strict approach taken by the courts in relation to the necessary endorsement for the purposes of the 2001 Regulation. The defendant refers to the cases of Speilberg v. Rowley [2004] IEHC 384, Bio Medical Research v. Delatex [2004] 4 I.R. 307 and, more recently, the decision of Noonan J. in Castlelyons Enterprises Ltd v. Eukor Car Carriers Inc & Anor [2016] IEHC 537 in which Noonan J. stated:-
"The failure to state the precise basis upon which the court should assume jurisdiction in the endorsement on the summons is fatal to it - see Spielberg v. Rowley [2004] IEHC 384 and Schmidt v. Home Secretary [1995] 1 ILRM 301."
53. It must be borne in mind that in an application such as this, the first question to be addressed is whether or not there was an irregularity in the proceedings at the time that judgment in default of appearance was granted. If there was such an irregularity, that irregularity cannot be retrospectively cured for the purpose of affirming the judgment; the question is whether the irregularity is such as should give rise to the setting aside of the judgment, and, if so, only then does the question then arise as to whether or not an amendment to the pleadings should be permitted. Since there is no doubt that the plenary summons that was before the Court at the time the judgment was granted invoked an incorrect jurisdiction, this constitutes another irregularity in the procedures followed prior to the grant of judgment.
(V) Failure to Serve Notice of Summons
54. Since the defendant is not an Irish citizen, it was necessary, pursuant to O.11, r.8 of the Rules of the Superior Courts, for the plaintiff to serve the defendant with a "notice of plenary summons", as distinct from a plenary summons itself. Order 11A, r. 6 of the Rules of the Superior Courts creates an identical obligation for proceedings which are subject to EC Regulation No. 1215/2012 or the Lugano Convention.
55. This requirement has been upheld repeatedly by the courts over the years. So, for example, where there was a failure to comply with this rule in O'Connor v. Commercial General [1996] 1 I.R. 68, Morris J. set aside service. More recently, in Castlelyons v. Eukor , Noonan J. observed that failure to comply with this requirement is a basis for setting aside the summons.
56. The rationale for this requirement is based on the comity of nations. It is explained is a passage cited by Morris J. in O'Connor v. Commercial General and Marine Ltd . [1996] 1 I.R. 68, from the case of Cookney v. Anderson (1863) 1 De G.J. & S. at p.365 as follows:-
"The right of administering justice is the attribute of sovereignty, and all persons within the dominions of a sovereign are within his allegiance and under his protection. If, therefore, one sovereign causes process to be served into the territory of another, and summons a foreign subject to his court of justice, it is in fact an invasion of sovereignty, and would be unjustifiable, unless done with consent; which is assumed to be the fact, if it be done in a case where a foreign judgment would, by international law, be accepted as binding".
57. The last part of this passage is of some interest because it implies consent in cases where a judgment is accepted as binding by international law. In an era in which so many nations are parties to conventions on enforcement of foreign judgments and, in the EU context, where there is express provision by EU Regulation for service of documents within the EU, it seems to me that the requirement to serve a notice of summons, rather than the summons itself, is anachronistic and could hardly be necessary in cases involving jurisdictions which are a party to such conventions or, by reason of membership of the EU, are subject to the same rules as to service of documents within the EU.
58. Moreover, in this case, the plaintiff did purport to comply with the rule by serving a draft of the plenary summons in advance of serving the plenary summons itself. This draft was served on the 1st August, 2014. The Rules do not provide a particular form of notice of plenary summons and the defendant submits that the service of a draft plenary summons has the practical effect of giving the defendant notice of the proceedings, as required by Order 11, rule 8. For these reasons, I am not inclined to treat with the failure to serve a document entitled "notice of plenary summons" instead of draft plenary summons as being an irregularity which by itself could operate so as to have the judgment set aside, although it may be, technically, an irregularity.
(VI) Issue of Proceedings during the Long Vacation
59. At the time of issue of the proceedings, O.122, r.4 of the Superior Courts provided:-
"Unless directed by the Court or on consent a pleading shall not be delivered or amended during the Long vacation."
60. At that time also, O.122, r.5 provided:- "The time of the Long vacation shall not be reckoned in the computation of the times appointed or allowed by these Rules for amending, or delivering any pleading, unless otherwise directed by the Court."
61. It follows that in serving proceedings during the long vacation, without the consent of the court, the plaintiff was acting in breach of the Rules of the Superior Courts.
62. Moreover, by reason of O.122, r.5 at the time, the time for entering an appearance would not have commenced until the commencement of the new legal term, and, pursuant to O.11A the defendant would have had five weeks from the time of service within which to enter an appearance. The defendant would therefore still have had time to enter an appearance to the proceedings on the date on which the notice of motion for judgment in default of appearance issued (20th October, 2014). In fact the defendant would have had until 10th November, 2014, to enter an appearance.
63. While acknowledging these difficulties, the plaintiff points to the amendments to the Rules of the Superior Courts which came into effect in October, 2016. The new O.122, r.4, provides that subject to rule 5, a party may deliver a pleading during the long vacation, and r. 5 thereof provides that the month of August only shall not be reckoned in the computation of times appointed or allowed by the Rules for amending or delivering a pleading.
64. The plaintiff relies upon O.124, r.1 in relation to this issue also. It will be recalled that this rule provides that non-compliance with the Rules does not render any proceedings void unless the court shall so direct. That rule goes on to say however that such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such a manner and upon such terms that the court shall think fit.
65. It is further submitted on behalf of the plaintiff that the plaintiff was obliged to move with all due speed having regard to the nature of the proceedings (defamation) which has the effect of making time of the essence as regards the issue of proceedings.
66. It is further submitted by the plaintiff that in any case the defendant was at all times aware of the proceedings, and of the date of which service was effected, and the defendant should not be permitted to rely upon the old O.122 having actively permitted both judgment and assessment to pass him by, uncontested. It is submitted that against that background, the balance of justice should not permit the plaintiff to succeed with such an argument.
67. The plaintiff does not deny, however, that the issue of the proceedings during the vacation, and the issue of the motion for judgment in default of appearance, while the defendant still had time to enter an appearance under the rules, each constitutes an irregularity in procedure. That this is so is beyond any doubt, and I must deal with the matter accordingly
Regular Judgment- Good Defence?
68. While it is apparent from the above that there were a number of irregularities in the proceedings and procedures leading up to the granting of judgment in favour of the plaintiff, I shall also address the argument of the defendant that even if I were to hold there were no such irregularities, the defendant has a good defence to the proceedings. In this regard the test is not whether or not the defendant has "an arguable case" but whether the defendant has a defence which has "a real chance of success". This was the test articulated in The Saudi Eagle [1986] 2 Lloyds Reports 221 and endorsed and applied in this jurisdiction in Allied Irish Banks plc. v. Robert Lyons and Josephine Lyons [2004] IEHC 129 and also in McGrath v. Godfrey .
69. The defendant puts toward two arguments that he has a good defence to these proceedings. The first is that the Notice was published on an occasion of either qualified or absolute privilege insofar as it was published pursuant to an order made by the Dutch Court. According to the defendant, this order was made by telephone. There is no record of the order.
70. Court order aside, the defendant maintains that it was necessary to publish the order in The Times of London because, while he did not have an address for the plaintiff, he was aware that the plaintiff resided in England. Moreover, lawyers previously acting on behalf of Carigna had refused to accept service of proceedings on behalf of the plaintiff.
71. It is extremely difficult to evaluate the quality of the defence based on privilege, on the basis of the limited information available. Accordingly, it cannot be said that that defence has a good prospect of success, at least at this remove.
72. The defendant also contends however that nothing in the Notice constitutes a "defamatory statement" within the meaning of the Defamation Act, 2009. In response to this, the plaintiff says that this is nothing more than a bare assertion and falls far short of the real prospect of success threshold required for an application such as this.
73. Inevitably, for the purpose of an application to set aside judgment in defamation proceedings, where the defendant says that the words complained of are not defamatory, that contention is very likely to be one based on bare assertion, at least in many cases, and it falls to the court to form a view as to whether or not there is a good prospect of the defendant succeeding with that assertion at trial.
74. In this case, the Notice says nothing at all of the plaintiff's character. It simply indicates that the plaintiff is required to attend court in the Netherlands as a witness in relation to proceedings referred to in the Notice and, specifically, to give information to the court regarding "the position of the witness at Carigna Investments N.V.". The Notice does not assert any wrongdoing on the part of the plaintiff or suggest that the plaintiff is indebted to the defendant. At this remove it is difficult to see how the Notice could be regarded as constituting a defamatory statement within the meaning of the Act of 2009. Moreover, it seems that Kearns P. was also of a similar mind in deciding against awarding damages and instead directing a clarification order in terms that fall somewhat short of suggesting that Kearns P. was of the opinion that the Notice constituted a defamatory statement.
75. Accordingly, it is my opinion that if this matter proceeds to full hearing, the defendant has a good chance of succeeding with a defence that the Notice does not constitute a defamatory statement.
Conclusion
76. Thus far, I have concluded that there were irregularities in procedure and in the proceedings leading up to the granting of judgment in favour of the plaintiff, and further that if the proceedings proceed to a full trial, the plaintiff has a good prospect of success in defending the proceedings. In the ordinary course, those conclusions would lead without further ado to a decision that the judgment in favour of the plaintiff should be set aside, having regard to the principles identified in McGrath V Godfrey . But in this case there is the somewhat thorny question of the delay on the part of the defendant in bringing forward this application.
77. That delay has not been explained at all. In fact no attempt has been made to explain the delay. The plaintiff, and the Court, are left guessing as to why the defendant chose to advance this application after so much time. It may be, as the plaintiff suggests, on account of the fact that the plaintiff is seeking to recover the costs of obtaining judgment by way of taxation (having been presented with a bill for the purposes of taxation of the order of €93,000.00). Or it may be because the court in Amsterdam has decided to put a stay on the proceedings being advanced by the defendant against the plaintiff in Holland - "the Grovit proceedings" pending the determination of these proceedings, and that the judgment in default of appearance will operate adversely to the defendant in the Grovit proceedings.
78. Whatever the reason for the delay, the delay in bringing forward this application is glaring and has given me considerable cause to hesitate in granting the relief that would normally follow if any one of the irregularities above were established, not to mention the number of irregularities identified in this case (four) and my view that the defendant may have a good defence to the proceedings.
79. There is of course no specific time limit for the bringing forward of applications of this kind. The plaintiff relies upon O.11D, r.6 of the Rules of the Superior Courts which provides:-
80. While this is not an application to extend time for appealing a judgment, it could hardly be gainsaid that there is an obligation to bring an application to set aside a judgment within a reasonable period, and what is reasonable will vary from case to case. In this case it appears that the order of Kearns P. was served on the offices of the Dutch lawyers for the defendant on 27th August, 2015. Previously they were notified of the order of O'Malley J. made on 8th December, 2014. This motion was not brought until 1st June, 2016. By any standards, this application has not been brought within a reasonable period.
81. Having said all of that, the authorities on applications of this kind and in particular the case of Allied Irish Banks plc. v. Lyons emphasis that the rule confers a wide discretion on the court, and the approach to be taken by the courts is to balance the interests of the parties in deciding whether or not the balance of justice favours the setting aside of the judgment.
82. Notwithstanding the extraordinary delay on the part of the applicant in bringing forward this application, I have come to the conclusion that the interests of justice favour the setting aside of the judgment for the following reasons:-
(1) There was not just one, but four irregularities in the manner in which judgment was obtained;
(2) the defendant has a defence which has a good prospect of success;
(3) the plaintiff has not seen fit to act on the decision of Kearns P. by publishing the correction order authorised by Kearns P. on 29th July, 2015; and
(4) these proceedings have interfered with the proceedings brought by the defendant against the plaintiff in the Dutch Courts, even though these proceedings could have no bearing at all upon the outcome of the Grovit proceedings. I think it is important that I should take the opportunity to clarify that whatever the outcome of these proceedings, they can have nothing at all to do with the case being made by the defendant against the plaintiff in the Grovit proceedings to the effect that the plaintiff and his son, Stefan Grovit, stripped Carigna of assets or otherwise took actions to prevent Carigna from being able to meet the judgment obtained by the defendant against Carigna - the determination of those issues is entirely unrelated to the determination of the issues in these proceedings and if the Dutch Court has any doubt about this, then this part of this judgment may help to dispel any confusion that has been arisen in the Dutch Court in this regard.
83. Although I am satisfied that the judgment should be set aside, it is clear from the authorities that the court has a discretion to set terms upon which judgment may be set aside (see Petronelli v. Collins, (Unreported, High Court, Costello P. 19th July, 1996). In this case I think the appropriate terms are as follows:- (1) The orders of Kearns P. and O'Malley J. in relation to costs shall be affirmed and the defendant shall pay the plaintiff the costs of obtaining judgment, when taxed and ascertained;
(2) The defendant shall pay the plaintiff his costs incurred in meeting this application, when taxed and ascertained.
(3) The plaintiff shall be entitled to amend the proceedings to correct the deficiencies identified in this judgment. Specifically, the plaintiff shall be entitled to amend the endorsement of claim on the plenary summons to plead the appropriate jurisdiction for the purposes of compliance with O.4, r.1A of the Rules of the Superior Courts.
(4) The defendant shall not be entitled in his defence to enter any plea in relation to the failure to serve a notice of summons.
(5) The plaintiff shall swear an affidavit of verification for the purposes of all matters of fact, whether in the endorsement of claim of the plenary summons or in the statement of claim, for the purposes of s. 8(1) of the Defamation Act 2009 and shall deliver the same within twenty-one days from the date of perfection of this order.
(6) The defendant shall deliver a defence within a period of twenty-one days from the date of delivery of the affidavit of verification as aforesaid.
