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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Omeyemmezu T/A Norlia Recruitment Service v First Care Ireland Ltd & ors [2020] IEHC 36 (23 January 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC36.html
Cite as: [2020] IEHC 36
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Page 1 ⇓
THE HIGH COURT
[2020] IEHC 36
[2018/743 S.]
BETWEEN
CECELIA OMEYEMMEZU T/A AS NORLIA RECRUITMENT SERVICE
PLAINTIFF
AND
FIRST CARE IRELAND LIMITED, FIRST CARE IRELAND (BLAINROE) LIMITED, FIRST
CARE IRELAND (EARLSBROOK) LIMITED, FIRST CARE IRELAND KILCOCK LIMITED,
BENEAVIN HOUSE LIMITED, BENEAVIN LODGE LIMITED
DEFENDANTS
JUDGMENT of Ms. Justice Hyland delivered on the 23rd January 2020
Introduction
1. This is an application for summary judgment against the Defendants pursuant to O. 37,
RSC in the sum of €749,353.40 together with interest due and owing to the Plaintiff by
the first named Defendant for services rendered and/or in the alternative of €100,606.14,
due and owing by the second named Defendant, €168,716.99 due and owing by the third
named Defendant, €220,518.31 due and owing by the fourth named Defendant,
€200,326.04 due and owing by the fifth named Defendant and €59,185.92 due and owing
by the sixth named Defendant, the combined total being €749,326.40 owed to the
Plaintiff for services rendered to the Defendants and/or each of them respectively.
2. This case has a somewhat tortured history in circumstances where judgment in the
amount sought was given by O’Hanlon J. on 1st July 2019 in the Defendants’ absence, in
circumstances where the Defendants did not appear due to inadvertence. A motion to set
aside that Judgment was brought. Ultimately the Judgment was set aside by way of an
Order of Humphreys J. of 25th September 2019. There has been an appeal against the
decision of Humphreys J. of 25th November 2019 to refuse the application made by the
Plaintiff for the DAR of the hearing which resulted in his decision but the outcome of that
appeal cannot affect the decision in this application and therefore I am in a position to
give judgment without waiting for that appeal to be determined.
3. Accordingly, one High Court Judge has granted summary judgment in the matter and
another High Court Judge has set that judgment aside.
4. I am now charged with the task of considering de novo whether the Plaintiff is entitled to
summary judgment according to the normal principles applicable to such an application.
Factual Background
5. The Plaintiff, an individual trading under the business name Norlia Recruitment Service, is
involved in the provision and recruitment of temporary/relief staff in the health care
sector, and the supply of same to entities such as the Defendants. Five of the Defendants
are companies that own and/or operate nursing homes, being the second to sixth named
Defendants. The first Defendant is the owner and/or operator of nursing homes and was
at all material times responsible for the management of the second to sixth named
Defendants.
Page 2 ⇓
6. The Plaintiff provided such services to the second to sixth named Defendants from May
2015 onwards up until the end of December 2017. It appears that the services for 2015
were paid for, with some deductions and credit given by the Plaintiff, in circumstances
where the Defendants say there was over-charging and the Plaintiff says the
deductions/credits were given in the interests of commercial relations. In my view that
dispute is not relevant to the matter before me since no monies are sought in respect of
services provided in 2015 and therefore I do not need to make a finding on same.
7. What is not disputed is that in respect of services provided by the Plaintiff from the start
of 2016 to the end of 2017 i.e. two years, no payment has been made and no invoices
discharged by any of the Defendants.
Applicable Law
8. The principles identifying when summary judgment ought to be granted are well-
leave to defend should be granted where there is a fair or reasonable probability that a
real or bona fide defence exists or that what is averred in the Defendant’s affidavit is
grant summary judgment should be exercised with discernible caution. He also noted that
leave should not be granted where the only relevant averment in the totality of the
evidence is a mere assertion of the situation which is to form a defence. In Aer Rianta cpt
v. Ryanair Ltd (No 1) [2001] 4 IR 607, Hardiman J. identified that the Court must ask
whether the Defendant’s affidavit discloses an arguable defence. In IBRC Ltd. v.
McCaughey [2014] 1 IR 749, Clarke J. noted as follows:
“Insofar as facts are put forward, then subject to a very narrow limitation, the court
will be required, for the purposes of the summary judgment application, to accept
that facts of which the defendant gives evidence or facts in respect of which the
defendant puts forward a credible basis for believing that evidence may be
forthcoming, are as the defendant asserts them to be. The sort of factual
assertions, which may not provide an arguable defence, are facts which amount to
a mere assertion unsupported either by evidence or by any realistic suggestion that
evidence might be available, or, facts which are in themselves contradictory and
inconsistent with uncontested documentation or similar circumstances such as
those analysed by Hardiman J. in Aer Rianta”.
9. The above case law makes it clear that there is a low bar for a Defendant to circumvent
when it is seeking to have a matter sent to plenary hearing.
Summary of Affidavit Evidence
10. In the Affidavit of Ms. Oneyemmezu sworn on 25th September 2018 grounding the
motion for judgment, Ms. Oneyemmezu avers that the services were provided pursuant to
a contract in writing dated 23rd May 2015 and she exhibits same together with the terms
of business and amended terms at “CO1”. She says at para. 5 that she was first
requested to provide staff by the deputy nursing home manager of the fifth named
defendant on 22nd May 2015, and that she supplied a staff nurse the following day and
Page 3 ⇓
other staff and that terms of business were furnished to the fifth named defendant and on
26th May 2015 a meeting was held with Ms. Mary Lloyd, nursing home manager with the
fifth named defendant and the signed contract was furnished by Ms. Lloyd to her.
11. She then avers at para. 6 to para. 9 that she concluded agreements to provide the sixth
named defendant, the third named defendant, the fourth named defendant and the
second named defendant with staff and same was governed by parole agreement and she
exhibits notes of memoranda of these conversations. Those exhibits were not legible and
I asked for better copies and same were provided to me. On inspection, what appears to
have been provided are sign in sheets for staff but they do not appear to refer to any of
the Defendant nursing homes or terms of agreements with them.
12. Ms. Oneyemmezu then identifies certain terms of that contract with each of the
Defendants and says it was amended by written agreement on the 7th and 15th
November 2016 and refers to correspondence to this effect. I deal with that
correspondence in detail below. Also exhibited to the Affidavit are invoices for each and
every hour worked by the staff employed by the Plaintiff including the time worked, the
status of the staff (whether nurse or health care assistant), the amount charged and the
date.
13. A replying affidavit was filed on behalf of all Defendants by Mr. Smith on 17th December
2018. In it he avers that identified that no sums were due and owing by the Defendants
or any of them to the Plaintiff and that such books and records did not disclose any
unpaid invoices due and owing to the Plaintiff by the defendants or any of them. He
avers that what is described as “First Care” was contacted by the Revenue Commissioners
and in response to an inquiry as to whether sums were due and owing, First Care
confirmed that no monies whatsoever were due and owing to Norlia Recruitment Service
in January 2018. It seems to me that the Defendants are making the case, as set out
below, that no monies were due and owing because contractual conditions had not been
complied with and it was in this context that the averments are made. As I have noted
above, there are no averments in the affidavit that the services were not provided as
identified in the invoices exhibited.
14. Mr. Smith further avers that in respect of the agreement at “CO1”, (described by him as
an “SLA” (service level agreement)), signed by the Financial Director of the fifth named
defendant, Beneavin House Nursing Home, there is no signed counterpart from Norlia
Recruitment Service. At para. 7 it is alleged that there had been overcharging in respect
of services provided in 2015 and that as part of further discussions between First Care
and Norlia it was agreed that henceforth very detailed protocols for service delivery,
invoicing, supporting documentation and compliance validations would be provided to
First Care so as to ensure full transparency with respect to all aspects of the business
relationship with Norlia but that notwithstanding this agreement Norlia failed to adhere to
the agreed protocols. No detail is given of the alleged agreement made subsequent to
the SLA, or of documentation evidencing same or identification of the protocols alleged.
Page 4 ⇓
15. There is an assertion in para. 10 and 11 that there was a confusion on the part of the
Defendants as to who the Plaintiff purported to represent and it was identified that there
was an identity called Norlia Limited with an address in County Tipperary that was
dissolved as a limited liability company in 2017 and that Norlia had changed the names of
the legal entities on their invoices submitted throughout the course of trading. However,
no documentation was exhibited to support this averment and all invoices that were
exhibited to the affidavit of Ms. Oneyemmezu were sent by Ms. Oneyemmezu trading as
Norlia Recruitment Service. Accordingly, I do not accept that there was confusion of the
sort asserted and I do not believe this issue constitutes a prima facie defence to the
claim, although in fact as I understand counsel did not make the case that it constituted
same.
16. At para. 4 of the replying Affidavit of Ms. Oneyemmezu sworn on 6th February 2019, she
avers that it was directly and/or implicitly agreed that the parties are bound by the
written terms of the written terms of the agreement executed and dated 23rd May 2015,
referred to by the Defendants as the SLA. At para. 5 it is averred that the payment of
invoices by the Defendants of amounts due and owing at the end of 2015 clearly
demonstrates acceptance of the terms and conditions of the contract.
17. Finally, there is the supplemental affidavit of Mr. Smith sworn 17th December 2019. The
Plaintiff refused to consent to its admission. Accordingly, at the start of the hearing, I
was required to rule on its admission. The justification for the late admission of an
affidavit after pleadings had closed was said by counsel for the Defendants to be because
of the necessity to address comments made in the course of the hearing before
Humphreys J. on 25th September 2019 and/or comments made in his written judgment.
Whether it was because of the hearing or whether it was because of the written
judgment, the fact is that the written judgment was delivered on 5th November 2019 and
the affidavit was not sought to be introduced until 17th December 2019 in respect of a
hearing fixed for 13th January 2020, where proceedings had issued on 14th June 2018.
By any standards that is very late in the day to seek to introduce new affidavit evidence.
Ultimately, I agreed that the affidavit should be introduced after counsel for the Plaintiff,
Mr. Quirke indicated that he would be in a position to deal with it in the course of the
hearing.
18. In that Affidavit, Mr. Smith asserts that the defence to the claim is that the protocols
already agreed had not been complied with. He avers at para. 6 that there had been a
breach of the SLA and that additional charges had been imposed over and above the
agreed SLA terms. Reference is made at para. 8 to the email of 15th September 2016 and
the reference thereby to Mr. Byrne to the effect that rate charges applied as per the SLA.
At para. 11 it is averred that Mr. Byrne contacted the Plaintiff during September and
November 2016 in relation to the important price and related terms and conditions in the
SLA and all the critically important non-pricing related protocol agreed between the
parties to ensure that (a) there would be no reoccurrence of overcharging by the Plaintiff;
and (b) the Plaintiff and Defendants were operating legally in the eyes of the HIQA, NERA,
the Gardaí and the Revenue Commissioners. At para. 12 he says that as part of the SLA
Page 5 ⇓
the Plaintiff and Defendants have agreed that in order for any of the invoices to be
considered, accepted, approved and due for payments the Plaintiff is required to provide
the following to the Defendants with each invoice: (a) confirmation that the nurses
provided for the defendant’s nursing home are qualified and registered with the nursing
governing body, the Nursing and Midwifery Board of Ireland; (b) confirmation that all
nurses provided to the defendant’s nursing home were Garda vetted. He goes on to say
that both of those conditions are critical conditions for the Defendants’ nursing homes to
comply with the requirements of their governing body, HIQA. He asserts at the end of
para. 12 that if they did not comply with HIQA registration criteria they could lose their
licence, referring to the protocols “detailed in the SLA”. He goes on to say at para. 13
that the parties also agree that the Plaintiff would have in place a valid and current tax
clearance at the time of seeking a proposed payment from the Defendants and that the
Plaintiff agreed and to comply with this protocol the Plaintiff agreed that it would supply
the access number for verifying the tax clearance certificate online to the Defendants.
Nature of bona fide defences identified
19. The primary bona fide defence that has been identified by the Defendants is that there
were protocols that had been agreed as part of the SLA whereby it was agreed that with
each invoice presented, the Plaintiff would provide proof that the relevant staff member
was qualified, was registered with the NMBI, and was Garda vetted. It was further
asserted it had been agreed that the Plaintiff would always have in place a valid tax
clearance certificate. The Defendants assert that due to alleged non-compliance with
these conditions, they are not obliged to pay on foot of the invoices raised by the Plaintiff
for 2016 and 2017.
20. There is also a subsidiary defence which was only identified by counsel for the
Defendants, Mr. Fitzgerald BL in argument to the effect that the SLA exhibited is not the
agreement governing relations between the parties due to it being unsigned, that there is
no evidence of the contractual relationship between the Plaintiff and the first to fourth
Defendants and sixth Defendant, given that the SLA exhibited only refers to the fifth
Defendants, Beneavin House Ltd. and that there is uncertainty in relation to the terms of
the contract. He asserts that it necessary that those issues to be dealt with at oral
hearing and that there is accordingly a prima facie defence insofar as there is uncertainty
in respect of contractual conditions between the Plaintiff and the Defendants.
21. I will deal with the above defence first and then address the argument in respect of the
defence going to the alleged breach of protocols.
22. Before doing so, I should note that counsel for the Defendants asserted at the hearing
that he noticed a significant time gap between the issue date of the invoices and the time
to which they related. There was no complaint about this on affidavit or any assertion that
it constituted a defence to the claim for payment. Nor was any such argument made by
counsel for the Defendants. For that reason, I do not consider this observation relevant
to the determination of this application.
Page 6 ⇓
Uncertainty in relation to the terms of the contract between the Plaintiff and the
Defendants as a prima facie defence
23. As noted above it was asserted in Mr. Smith’s first affidavit that the plaintiff had not
signed the counterpart of the document exhibited at CO1. In that averment there was no
statement to the effect that the agreement was not binding or that it only bound one
nursing home, i.e. the one with whom the agreement had been signed. No conclusions
were sought to be drawn from the lack of a counterpart signature.
24. However, at hearing Mr. Fitzgerald BL for the Defendants asserted that only one
agreement had been exhibited, that the SLA was exhibited was unexecuted, that there
were five nursing homes as Defendants and the SLA exhibited only referred to one of
those Defendants, and that it was for the Plaintiff to make out their case. He submitted
the agreement between the parties was governed by an SLA and parole evidence as
supported by the exhibits. He argued that a plenary hearing was necessary to determine
the terms of the contract between the parties, given the lack of an executed written
agreement and the ambiguity between the parties re the terms of the agreement. He said
the question as to whether the protocols could form part of the contract was a matter to
be determined by oral evidence.
25. I have some concerns about the Defendants’ argument that the SLA as exhibited did not
govern the agreement between the parties, given that in the context of the protocol
argument, the core defence identified was that the SLA contained the protocols allegedly
not complied with. Indeed Mr. Fitzgerald for the Defendants identified parts of the SLA
exhibited at CO1 to attempt to demonstrate to me where same were to be found. It is
therefore quite inconsistent for Mr. Fitzgerald to make the case that the SLA does not
apply while relying on same in support of his argument on the protocols. Moreover, as
referred to above, in both of Mr. Smith’s affidavits, he refers to the SLA with no
reservations about its applicability and exhibits emails from Cliff Byrne on behalf of the
Defendants that refer to the SLA, clearly treating same as the document that governs
contractual relations between the Plaintiff and all six Defendants.
26. However, the sequence of correspondence from 7th September 2016 to 15th November
2016 does give me considerable cause for concern in respect of the argument made that
the Defendants have a defence based on uncertainty in relation to the terms of the
contract and that a plenary hearing is required in respect of same.
27. Following the presentation of invoices for 2015, Mr. Byrne sent an email of 7th
September 2016 whereby he identifies minor issues in respect of the time sheets
submitted and evaluates the invoices by reference to the terms of the SLA in respect of
hourly rates and administration fees (allegedly not in compliance with the terms of the
SLA) and staff orientation and travel expenses (allegedly not provided for in the SLA). He
asks to meet up to resolve the issues. A further email is sent on 15th September 2016
stating that the invoice has been recalculated and the rates/charges as per the SLA have
been applied and that the recalculation will be applied to all previously submitted invoices
and future invoices will be calculated in the same manner.
Page 7 ⇓
28. On 7th November 2016 Norlia reply responding to the points made and accepting certain
adjustments and indicating that the adjustments will apply in respect of the invoices from
May 2015.
29. On 15th November 2016, Norlia write to Mr. Byrne again referring to a telephone
conversation with Mr. Byrne of 10 November 2016 and stating that progress has been
made in terms of resolving matters raised by him in September and noting that no formal
response to that correspondence has been provided. The writer says they will be prepared
to accept certain arrangements in respect of the invoices for the period May to December
2015 in relation to the matters raised in September, viz travel costs, hourly rate,
administration fee and staff tailored orientation. They seek Mr. Byrne’s commitment to a
payment plan to ensure that fees are discharged in a timely manner in accordance with
the terms of a Schedule and enclose proposals in respect of the Schedule and ask that he
reverts to confirm same are acceptable. In respect of invoices for 2016 they say they will
issue replacement invoices for January and February and that the remaining invoices will
be furnished to him upon hearing from him in regard to the above arrangements (my
emphasis added). The letter concludes by saying that they will expect payment of each
invoice within 30 days and they seek confirmation that same is acceptable. This 30 day
period is a variation of the period of time identified in the SLA, being 14 days. Finally, the
writer asks Mr. Byrne to acknowledge receipt and to reply at earliest convenience as they
wish to conclude this matter without delay or further inconvenience.
30. Further, as noted above, the document exhibited at CO1 only refers to the Plaintiff and
the fifth named Defendant and there is no documentation exhibited in relation to the
contractual terms as between the Plaintiff and the other Defendants, although it does
appear that the Defendants proceeded on the basis that the SLA governed the
relationship with all Defendants.
31. Having regard to the above chain of correspondence and the terms of CO1, it appears to
me that there is significant uncertainty as to the terms of the contract between the
various parties. The invoices the subject of this claim cover the entirety of 2016/2017.
The contractual arrangements applicable might be confined to those in the SLA, i.e. the
document exhibited at CO1; or they might be those that appear to have been unilaterally
applied by the Plaintiff set out in the 15 November letter (although the payment terms
are not disclosed as the proposals in respect of the Schedule are not exhibited); or they
might be those identified by the Defendants in the September 2016 emails; or they might
be some other set of terms altogether. What is clear is that there is a significant question
as to the contractual terms that govern the relationship between the parties for the years
2016/2017 and that having regard to the material exhibited, it is not possible to state
with certainty the contractual terms between the Plaintiff and each of the Defendants.
32. Applying the case law and having regard to the passage quoted above of Clarke J. in IBRC
v. McCaughey, I consider that the evidence before the Court is such as to suggest that
there is a real issue as to the contractual terms between the parties. I cannot characterise
Page 8 ⇓
the prima facie defence identified as simply a mere assertion unsupported by evidence or
inconsistent with uncontested documentation.
33. In those circumstances, I am of the view that the Defendants have established a bona
fide defence in respect of the question as to the contractual terms that governed the
invoices for 2016/2017.
Alleged non-compliance with Protocols as a prima facie defence
34. Given my conclusion above, it may not be strictly necessary to adjudicate on the defence
identified in respect of the protocols. However, for the sake of completeness, I have
decided to do so.
35. Having regard to the document exhibited at “CO1”, referred to by the Defendants as the
SLA, I am satisfied that the SLA did not contain protocols requiring the submission each
time an invoice was presented of proof of the nurse’s registration, qualifications and
Garda vetting. There is no requirement in the SLA that same must be provided to the
defendants with each invoice.
36. This conclusion is borne out by the fact that invoices for 2015 were presented by the
Plaintiff and paid by the Defendants and none of those invoices include proofs of
registration, qualifications or Garda vetting. Despite there being queries by the
Defendants on the amounts in those invoices, no issue whatsoever was taken by the
Defendants in respect of the absence of registration, qualifications or Garda vetting. Nor
is there any correspondence exhibited by either party demonstrating that the Defendants
believed the asserted protocols to be part of the SLA.
37. The Defendants placed significant reliance upon an email of 14th December 2017 from
Cliff Byrne to Norlia where he stated that in order to commence review, process, sign off
and payment, he required Garda vetting and relevant qualifications in respect of all staff
as well as a tax clearance certificate with an access number for online use. However, that
email does not even reference the SLA or assert that those requests are a condition of the
SLA.
38. In relation to the alleged protocol in respect of the tax clearance certificate, it is
somewhat difficult to understand from the affidavits whether it was alleged that this was
part of the original SLA or was a later collateral contract. If the former, there was
certainly no obligation in the SLA placed on the Plaintiff to provide details of tax clearance
certificates with its invoices.
39. Accordingly, I find that on the evidence put before me by the Defendants, i.e. the SLA
and the emails, there was no obligation to comply with the protocols contended for by the
Defendants arising out of the terms of the SLA.
40. Equally, in relation to any collateral contract, amending the SLA, there is no evidence in
the Defendants’ affidavit as to the nature of any such collateral contract and how it may
have operated to impose an obligation to comply with the alleged protocols as a condition
of payment. In Mr. Smyth’s Affidavit of 2018, it is asserted at para. 7 that as a result of
Page 9 ⇓
further discussions it was agreed that very detailed protocols would be provided to First
Care. This is the height of the evidence on affidavit in respect of this alleged defence.
Taking it at its highest, this appears to be an assertion that there was some type of
collateral contract agreed or an amendment to the SLA post 2015. However, there is no
description of what was agreed, who agreed it, when it was agreed, the nature of the
obligation or any other detail whatsoever. Mr. Smyth makes an averment at para. 7 of his
first Affidavit to refer to an agreement in respect of protocols for service delivery,
invoicing, supporting documentation and compliance validation. This may refer to the
interaction in September and November 2016 although he identifies no details in respect
of same. Those emails have been described above and deal with a variety of matters,
notably agreed rates and payment terms but they make no reference whatsoever to
protocols in respect of qualifications, registration, vetting or tax clearance certificate.
Moreover, the averment at para. 7 is contradicted by the Supplemental Affidavit of Mr.
Smith of 17th December 2019 insofar as he avers that the protocols in respect of proof of
registration, qualifications and Garda vetting were always part of the SLA.
41. In summary, there is no basis disclosed on the affidavit evidence to support the assertion
that protocols in respect of registration, qualification, Garda vetting or tax clearance were
part of the contracts, whether the original SLA or a collateral contract or some
amendment to the SLA and that the alleged breach of the protocols justifies the non-
payment of invoices.
Conclusion
42. It is striking that nowhere in the affidavit evidence of the Defendants does Mr. Smith deny
that the services the subject matter of the invoices of 2016/2017 were provided to the
Defendants, being the provision of nursing and health care assistant services to five
nursing homes over two years. Rather, he denies that the monies sought are due and
owing. If the Plaintiff is correct and the monies sought are due and owing, those monies
have been outstanding for some very considerable amount of time. In the circumstances I
would urge both parties to expedite the trial of this matter.
Result: Application for summary judgment; refusal on the basis that the Defendants had identified a bona fide defence; liberty to defend granted.