Judgment of Mr Justice O’Donnell delivered the 10th day of April, 2014
1 This case reached this Court by a route marked by a series of misunderstandings, misapprehensions, mistakes, and worse. It is with some trepidation therefore that the Court delivers its conclusions on the issues in this accident prone case.
2 The appellant/defendant, Mr Fergus Appelbe, appeals against the judgment of the High Court “of the 8th of October 2012 delivered on the 12th November 2012 perfected on the 30th of January 2013”. Even at this point it is necessary to clarify certain matters. The Order of the Court made on the 12th of November 2012 and perfected on the 30th of January 2013 declared that the principal monies secured by a judgment mortgage created by registration of the judgment mortgage affidavit, certified by the Central Office on the 5th of August 2010 and registered in the Property Registration Authority on the 12th of August of the same year, together with costs, interest thereon and the costs of registration, and the costs of the proceedings, stood well charged on the defendant’s interests in lands and premises set out in the second schedule to the said Order. The amount due on foot of the judgment mortgage was €621,779.30, the interest at 8% from the 2nd of July 2010. The defendant was to be at liberty to dispute the sum within one month from the date of service of the Order and in default there was an Order for Sale of the premises. Accounts and inquiries were to be taken in the Examiner’s Officer, the plaintiff recovered the costs of the proceedings and a stay was refused. For present purposes the most important aspect of the Order was the second schedule identifying the lands on which the judgment mortgage stood well charged pursuant to the said Order. Those lands were “ALL THAT AND THOSE the lands described in Folios 23312 and 17110, County Cork”. However the appellant, Mr Fergus Appelbe, who appeared in person, did not contest that Order: instead his complaint in this appeal was directed towards an application made by the respondents, heard on the 8th of October 2012 and granted by the High Court on the 12th October 2012 when a written judgment was delivered, as a result of which the claim in respect of Folio 23312 was reinstated in the proceedings.
3 The judgment the subject matter of the judgment mortgage affidavit had been obtained in the High Court on the 2nd of July 2010. The papers before this Court do not disclose the subject matter of those proceedings. It appears that Mr Appelbe has also appealed the Order (which again was not stayed by the High Court). Mr Appelbe admits that he has done nothing to advance that appeal. In his replying affidavit on the well charging proceedings he states that he does not accept that the plaintiffs are owed money by him. He also states that the first named plaintiff received assignment of a claim from her husband and the consequence thereof, he alleges, was “to distance her husband and the second named plaintiff from being subject to cross-examined on my behalf”. It is not clear what this refers to nor is it of relevance to any of the proceedings in this case. Among the few matters that are not in dispute in this case is that a judgment was obtained in the High Court against the defendant which has not been stayed, which was capable of being registered as a judgment mortgage, and which was so registered.
4 The originating proceedings herein were brought by special summons seeking a declaration that the judgment mortgage was well charged in two Folios, 23312 and 17110, and ancillary orders which were in the event granted by the Order under appeal. The matter came before the Master’s Court in the ordinary way and a replying affidavit was sworn by Mr Appelbe. Paragraph 5 of that affidavit contained the following statement:
“The judgment registered against Folio 23312 County Cork is behind a charge registered in favour of Susan Appelbe at Entry 5 at Part 3 of the said Folio. Susan Appelbe is my daughter.”
The precise relevance of this statement to the proceedings was not clear since the existence of a prior charge is only relevant to priority and does not prevent the making of a well charging order or any ancillary orders, but it produced the first of the many missteps in this case.
5 The above mentioned affidavit was filed on the 12th of April 2012. On the 17th of April 2012 the matter was once again before the Master. The plaintiffs sought to have the aspect of the proceedings relating to Folio 22312 adjourned while the claim in respect of Folio 17110 would proceed. Whether this was a sensible or possible course is not a matter for this Court, but it certainly involved no particular hardship to the defendant particularly since the end point of these proceedings, if he is successful, would be the issuance of a further set of proceedings. The Master of the High Court refused to make such an order which would in effect divide up a single set of proceedings and in those circumstances, the plaintiffs’ representatives then sought to achieve almost the same result by having the claim in respect of Folio 22312 deleted from the special summons. The Order of the Master was in the following terms:
“IT IS ORDERED that the plaintiff be at liberty to amend the said summons by deleting any reference to Folio 22312 and/or to the lands described in the said Folio 22312 where reference is made to the said Folio 22312 therein and the Master does dispense with the reservice of the said summons where amended as aforesaid and the Master does transfer them within matters amended to the Chancery Special Summons List to the 11th day of June 2012.”
This procedure was characterised variously by Mr Appelbe in his affidavit and submissions as a withdrawal of the claim and by Mr Ronan McGoldrick on behalf of the plaintiffs as the granting of an order amending the Special Summons by deletion of the reference to Folio 22312. It is certainly clear that the proceedings which were transferred to the judge’s list related only to Folio 17110.
6 Mr McGoldrick states that subsequent to the order of the 17th of April 2012, the plaintiffs reviewed the various cases against the defendant with their advisors. It appears that this process led to the realisation that there was in fact:
“ No lawful impediment to them seeking a well charging order and order for sale, as sought in the Special Summons herein, in respect of a property against which a charge is registered, even when, as in this case, that charge is registered ahead of the Judgment Mortgage on foot of which this Special Summons is issued.”
Accordingly, what occurred on the 17th of April 2012 in the Master’s Court was acknowledged to be a misstep on the part of the plaintiffs. If so, it was not the first or last time that such a misstep was made in circumstances where the person presiding did not accede to an application and some other step had to be taken at short notice. It is however the consequence of that misstep, and the steps taken to seek to cure it, which are the subject matter of this appeal.
7 The plaintiffs’ next move was to bring an application to the High Court seeking the following relief:
This Order was resisted by the defendant. It should perhaps be said at this point that the defendant is a solicitor of more than 40 years experience who now represents himself.
8 The issue in this case is narrow and of little practical benefit to the defendant. This was admitted by him. He is hopelessly insolvent. The question of the priority of encumbrances on the land is not a matter in respect of which he has any interest. The judgment mortgage affidavit has been registered. If the defendant had succeeded in persuading the High Court that it should not make the Order sought, the only consequence would have been that the plaintiffs would have had to issue a further special summons seeking a separate well charging order in respect of Folio 23312. The defendant seems to consider that that might have consequences in costs since he considers that the plaintiffs’ representatives might be made responsible for any additional costs incurred thereby. That by no means follows. If separate proceedings were occasioned by appealing the Order of the High Court, then it would not necessarily follow that the blame for the separate proceedings should be attributed to the plaintiffs so that they, or more accurately their representatives, should be made responsible for the costs. But the pursuit of an argument with no apparent practical benefit for the party and no object other than seeking to inflict a financial penalty on the lawyers on the other side of the case is an unattractive strategy particularly when pursued by a person who is a long time member of the legal profession. Even then, since Mr Appelbe appeared in person, it would seem that only expenses rather than costs would be payable if he were successful.
9 Despite the very unattractiveness of the strategy followed by the defendant/appellant in this case, and the obvious merit and common sense of permitting the error made to be corrected, the court should approach the course urged by the plaintiffs with some caution. Ultimately the issue is one of law, and an interpretation of a rule to achieve what might appear to be an obviously sensible result in the particular case may come at a price of future unanticipated problems in other cases.
10 The learned High Court judge heard the plaintiffs’ application on the 8th of October 2012 and delivered judgment on the 12th of that month granting the relief sought and vacating the order of the 17th of April. In a careful judgment, Dunne J. addressed the arguments made to her and ultimately it appears, she accepted the submissions made by the plaintiffs that the case was analogous to the withdrawal of a notice of discontinuance. She adopted the views expressed by O’Sullivan J. in the High Court in Smyth v. Tunney [2004] 1 I.L.R.M. 464 recorded in the 2nd edition of Delaney and McGrath’s Civil Procedure in the Superior Courts (Dublin; Round Hall; 2005) in the following terms:
“No provision is made in O. 26 for retraction of a notice of discontinuance but it was held in Smyth v. Tunney … that the court has an inherent jurisdiction to permit a party to retract such a notice. O’Sullivan J. held that the court had an inherent jurisdiction to do so on the basis that the rules are enabling rather than prescriptive in nature:
‘Rather than accepting counsel on behalf of the first and third defendants’ submission that in the absence of explicit provisions conferring jurisdiction on the court or acknowledging it, there is no such jurisdiction, I have come to the opposite conclusion namely that in the absence of an explicit provision derived the court of jurisdiction, I would infer its existence’.”
The learned High Court judge considered that the court had an inherent jurisdiction to consider the application brought by the plaintiffs and that the balance of justice clearly favoured the plaintiffs since there was no question of any prejudice to the defendant, there being no issue of the Statute of Limitations, and the role of the court was not to punish or discipline the plaintiffs in respect of what was clearly a misapprehension on their part. In the absence of any such prejudice the balance of justice favoured the plaintiffs and accordingly the order of the 17th of April was vacated, the claim in relation to Folio 22312 re-instated, and consequently, on the 12th of November 2012 the well charging Order was made and it was perfected on the 30th of January.
11 Errors in legal procedure are rarely the exclusive province of one of the parties. The defendant sought to appeal the decision of the High Court. The judgment of the Court of which he complained had been delivered on the 12th of October 2012. On the 29th of November 2012 (and out of time to appeal that order but within 21 days of the decision on the well charging application) he lodged an appeal in the Supreme Court Office. However, even if the appeal is taken as an appeal against the well charging order, there was a further problem. As Mr Appelbe later explained, he “mistakenly took the written judgment as the order and thus served my notice of appeal within the 21 day period which I understood to be the correct procedure”. However, the Order of the High Court had not at that point been made and accordingly, time had not commenced for the lodging of an appeal from the well charging order. Consequently, his papers were returned to him. The position then was that Mr Appelbe was too late to appeal the decision of the 12th of October, at least as of right, and too early to appeal the decision of the 12th of November. In due course, the Order of the High Court was perfected on the 30th of January 2013 and emailed to his office on the same day. The hard copy however was not received until the 5th of February 2013. Mr Appelbe then made another mistake. At paragraph 7 of his affidavit of the 28th of March 2013 he described the sequence of events:
“I understood, mistakenly, that I had 21 days from the 5th of February 2013. I then realised that I was in fact too late to now lodge and serve the notice of appeal as the 21 days in fact ran from the 30th of January and not the 5th of February 2013.”
Accordingly, he was required to seek an extension of time within which to appeal. This course, the plaintiffs vigorously resisted. In the event, the Supreme Court made an order extending the time for this appeal.
12 The fundamental ground upon which the defendant appeals is that he points out that the High Court decision in Smyth v. Tunney was overturned by the Supreme Court in early January 2009 (and thus almost four years before the hearing in the High Court in this case). In a careful judgment delivered by Finnegan J. ([2009] 3 IR 322) this court held that it had consistently recognised that Order 26 Rule 1 of the Rules of the Superior Courts 1986 “does not provide for the withdrawal of a notice of discontinuance by the party who has served the same. …Even if such a jurisdiction should exist this is not a case in which it should be exercised” (para. 23). It appeared that there was some UK authority for a limited jurisdiction to control the issuance of a notice of discontinuance but it was not applicable on the facts and it was unnecessary to consider if the same considerations applied in this jurisdiction. Finnegan J. continued;
“The decision to serve the notice of discontinuance was a conscious and advised one. The withdrawal of the notice of discontinuance at this stage would likely deprive the third defendant of a defence of the Statute of Limitations.” (para. 23)
It is of course the case that this last consideration, which must loom large in any appropriate case, does not arise here. It appears however that the learned High Court Judge in this case was not referred to the Supreme Court decision in Smyth v. Tunney and it is not clear to what extent the arguments raised the issue at all. In view of the conclusion I have formed of this case, I do not think it is profitable to address the arguments made in this appeal which attempt to distinguish Smyth v. Tunney. The defendant’s essential argument was simple: the court below decided the case on the basis of a High Court decision which, unbeknownst to it, had been overruled. Accordingly, the High Court decision could not stand. It is that argument that must be addressed.
13 If this was a case governed by the provisions of Order 26 of the Rules of the Superior Courts, I would have no hesitation in accepting the defendant’s submission, whatever inconvenience might arise as a result. Indeed inconvenience and some expense would appear to be the only consequence, even if this appeal were to succeed. Service of a notice of discontinuance is no bar to the issuance of further proceedings making the same claim, and it was accepted that the same position applied here even if the Court overturned the judgment of the High Court of the 12th of October. However, in any such case this Court and the High Court, in subsequent proceedings, would retain the jurisdiction to make an order of costs which could take into account its views of the justice of the proceedings. It is thus not at all clear that Mr Appelbe would be able to obtain an order for costs, even if legally represented. However, and in any event, it must be apparent that for the defendant to succeed and even get to that point, it is necessary to characterise the Order made by the Master of the High Court on the 17th of April 2012 as both a withdrawal of the claim in relation to Folio 23312 and moreover, the equivalent of a notice of discontinuance. In this regard he perhaps gained some limited assistance from the form of the plaintiffs’ notice of motion which sought to vacate the Order of the Master’s Court. He described the application before the Master as a de facto discontinuance which however, leaves unanswered the critical question as to the nature of the Master’s Order as a matter of law.
14 It seems to me readily apparent that there is a significant distinction in what occurred here and the notice of discontinuance which was at issue in Smyth v. Tunney. A notice of discontinuance is a unilateral act made on the part of the plaintiff bringing to an end the whole or any part of his claim and carrying with it an automatic liability for costs. It is not necessary here to consider the extent or application of that rule in the case of partial discontinuances. In this case the rule was not sought to be invoked. Instead, as the Order of the Master clearly shows, the proceedings were amended. The High Court, and this Court on appeal, has a very extensive power of amendment where it is necessary to permit the real issues in dispute to be determined. There is nothing which prevents the court from re-amending proceedings, even if that re-amendment would reintroduce a claim that had previously been removed by amendment. Of course in such a circumstance, the Court might require a cogent explanation, and if the consequence of any re-amendment might affect a defendant’s capacity to raise the Statute of Limitations, more difficult considerations might arise. But nothing of the sort occurs in this case. The Court had power to amend the proceedings to delete the claim in relation to the Folio, and also accordingly had power to re-amend the proceedings to include it. In my view it was not necessary to become involved in the almost theological question of whether this was an appeal by a party aggrieved against an order of the Master, or indeed whether there was power in the High Court to vacate an order made by the Master. While the reliefs sought by the plaintiffs included an order vacating the Order of the Master, it also sought further and other relief. In my view the appropriate order is to amend the proceedings to include the claim in relation to Folio 22312. This, of course, comes to the same end point as the Order made by the High Court judge albeit on a different legal analysis. Once that point is arrived at it is not suggested that the defendant has any possible defence to the application for a well charging order and the ancillary orders sought and made. Since this was the only issue raised and debated in these proceedings the appeal will be dismissed.
