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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Onyenmezu v Firstcare Ireland Ltd & ors (Approved) [2019] IEHC 697 (25 September 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC697.html
Cite as: [2019] IEHC 697
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THE HIGH COURT
[2019] IEHC 697
[2018 No. 743 S]
BETWEEN
CECILIA ONYENMEZU (TRADING AS NORLIA RECRUITMENT SERVICE)
PLAINTIFF
AND
FIRSTCARE IRELAND LIMITED, FIRSTCARE IRELAND (BLAINROE) LIMITED,
FIRSTCARE (EARLSBROOK) LIMITED, FIRSTCARE IRELAND KILCOCK LIMITED,
BENEAVIN HOUSE LIMITED, AND BENEAVIN LODGE LIMITED
DEFENDANTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September,
2019
1. The defendants’ solicitor attended the proceedings in this case in the Master’s Court on a
number of occasions but through inadvertence failed to attend when the matter came
before the High Court. That solicitor has said on affidavit that this was the first time in 32
years of practice that he had overlooked a date and failed to attend.
2. On 1st July, 2019, in the defendants’ absence, O’Hanlon J. granted summary judgment in
favour of the plaintiff. Order 36, r. 33 allows six days to apply to set aside a judgment in
a plenary action that was obtained in the absence of a party.
3. The defendants’ solicitor became aware of the judgment only when a writ of fieri facias
was served, which was in late July. He sought agreement to a stay for a limited period of
time but that was rejected. He then wrote to the plaintiff’s solicitor, expressly drawing
attention to the fact that he was on a family holiday in Spain.
4. The plaintiff’s solicitor, Mr. John Branigan of Branigan Feddis Solicitors, replied rejecting a
postponement of execution even until the defendants’ solicitor was back in the country.
Mr. Branigan’s response should more properly have been to endeavour to prevail on his
client to extend the absolute minimum human courtesy, let alone professional courtesy,
to allow the defendants’ solicitor to enjoy his holiday. He does not appear to have done
so but merely took instructions and then wrote a belligerent letter of rejection based on
those instructions. It was extremely uncollegiate not to have endeavoured to persuade his
client to agree to even a temporary postponement. That extremely unhelpful attitude
can’t have improved the defendants’ solicitor’s holiday. The latter returned on 7th
August, 2019 and then moved promptly to rectify the position.
5. What is now before the court is a notice of motion seeking either an order under O. 122,
r. 7 extending the time to make an application under O. 36, r. 33 and an order setting
aside the judgment and order of O’Hanlon J., or an order to the same effect under the
court’s inherent jurisdiction.
6. The defendants’ solicitor’s affidavit avers to there being a bona fide defence to the
proceedings, and that seems to me to well surmount the test for a bona fide defence
(Unreported, Court of Appeal, 10th May, 2018).
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7. Pilkington J. gave liberty for short service of the present motion by order of 9th August,
2019 and stayed the execution of the order in the meantime. Stewart J. continued the
stay on execution on 15th August, 2019, as did O’Connor J. on 12th September, 2019. I
have now received helpful submissions from Mr. Patrick Fitzgerald B.L. for the defendants
and Mr. Barney Quirke S.C. (with Mr. John F. Quirke B.L.) for the plaintiff.
The Law
8. As Leggatt L.J. for the English Court of Appeal emphasised in Shocked v. Goldschmidt
[1998] 1 All E.R. 372, there is a significant difference between a tactical decision not to
attend court compared with failure to attend that is down to mere inadvertence. While
Mr. Quirke’s submission majored on what he portentously called “the fundamental
principle of finality”, that is much more relevant to the first type of failure to attend,
(Unreported, Dunne, J., 25th October, 2015). This is a case of the latter, the
inadvertent failure, and in that regard it appears that much more relevant is the
judgment of Denning L.J. (as he then was) in Hayman v. Rowlands [1957] 1 All E.R. 321
at 323 “I have always understood that, if by some oversight or mistake a party does not
appear at the court on the day fixed for the hearing, and judgment goes against him but
justice can be done by compensating the other side for any costs and trouble to which he
has been put, then a new trial ought to be granted. The party asking for a new trial ought
to show some defence on the merits, but, so long as he does so, the strength or
weakness of it does not matter. I think it plain in this case that the tenant had a defence
on the merits. He had a defence on the question whether it was reasonable to make on
order for possession against him."
9. Applying such an approach here it is clear that the order should be set aside and indeed it
would be unjust to make any other decision. While Denning L.J. went on to refer to the
need for terms, such a need is considerably diluted in the present case given the attitude
and conduct of the plaintiff and her solicitor. The plaintiff’s solicitor’s affidavit makes a
number of pettifogging legalistic points, the most flawed of which is that it is claimed to
be “of particular relevance” that the defendants did not seek promptly to appeal the order
of O’Hanlon J. That is a misunderstanding of appellate procedure. The much quicker and
more convenient method of addressing an order made in the absence of a party is to
apply to the court of first instance to set aside that order or, where applicable, to apply to
extend time to do so. It would add to the workload of the appellate courts for no good
reason whatsoever to proceed by way of an appeal. Certainly an ex parte order cannot
be appealed by the respondent, only by an unsuccessful applicant. The respondent’s
remedy is to apply to the trial court to set the ex parte order aside. A similar logic should
apply to an order obtained in the absence of one side. The application should be made in
the first instance to the court of trial.
10. The defendants have in fact applied to the Court of Appeal to extend time (Court of
Appeal Record No. 2019/419), but that appeal is rendered moot if the order is set aside.
Mr. Quirke also made the somewhat bizarre argument that, as the defendants’ affidavits
were before O’Hanlon J. the court had all the relevant information, even though the
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defendants were not represented. That misses the point completely because it assumes
that the defendants’ presence or absence would not have made any difference. Contrary
to Mr. Quirke’s argument, there is no requirement for a defendant to present new
evidence on the merits that was not before the court that granted a judgment in
abstentia.
11. As to whether the set-aside order should be under the inherent jurisdiction or the rules of
court, it is more appropriate to set aside the order under the court’s inherent jurisdiction,
seeing as the focus of O. 36 is in relation to a plenary hearing. However, one must recall
I.R. 383, citing the view of Lynch J. in D.P.P. v. Corbett [1992] I.L.R.M. 674 at 678, that
“the day is long past when justice could be defeated by mere technicalities which did not
materially prejudice the other party”. The approach here is thus one of applying O. 36 r.
33 by analogy, and Mr. Quirke more or less accepted that. Such an approach is
consistent with the approach of Barrett J. in Bank of Scotland Plc v. McDermott
[2017] IEHC 77 (Unreported, High Court, 15th February, 2017) at para. 8. The question of
extending time does not apply to the inherent jurisdiction because that jurisdiction does
not have a specific time limit; but insofar as the court is concerned with the question of
delay I am satisfied that the defendants acted with all reasonable speed in the
circumstances. While Mr. Quirke majored on the extraordinary and unusual jurisdiction to
set aside a final judgment as set out in R. v. Bow Street Magistrates, ex parte Pinochet
high threshold is more relevant to a different situation where the absence was as a result
of a deliberate decision. A much lower threshold applies where the absence is
inadvertent.
Order
12. The plaintiff’s legal approach here is the undesirable and somewhat disreputable one of
trying to take advantage of a bona fide mistake by the other side’s solicitor. One can only
imagine the reaction if the shoe was on the other foot. It will, on reflection, be
interesting to see what happens the next time Mr. Branigan makes a mistake and has to
ask for the indulgence of the other side or the court. Sure, the plaintiff’s solicitor is bound
by instructions; but he doesn’t seem to have tried to influence those instructions in a
reasonable direction. The tone of his correspondence was belligerent at all stages, even
in the letter rejecting a temporary stay pending the defendant solicitor’s return from his
family holiday. That is certainly not how the game should be played. It is interesting on
reflection to note that while the Shorter Oxford English Dictionary defines the mid-16th
Century phrase “To take (a person) s[hort]” as “To take by surprise, at a disadvantage;
to come suddenly upon … Often Naut. of wind or bad weather. 1553.” (3rd Ed., C.T.
Onions Ed., 1973), Murdoch and Hunt’s Dictionary of Irish Law does not (as yet) include
the specifically legal sense of the term, namely to take unfair or unsportsmanlike
advantage of bona fide error by, or unavailability, difficulty or absence of, the other side.
If the next edition of the latter dictionary rectifies the omission, which the present
application has highlighted, then Mr. John Branigan of Branigan Feddis Solicitors can
legitimately boast of having earned his place in the textbooks.
Page 4 ⇓
13. The appropriate order then is an order under the inherent jurisdiction of the court setting
aside the judgment and order of O’Hanlon J. of 1st July, 2019, and an order re-listing the
matter in the Chancery List in early course.