THE SUPREME COURT
[Record No. 44/12]
DANSKE BANK A/S TRADING AS NATIONAL IRISH BANK
Judgment of Ms. Justice Dunne delivered on the 8th day of March 2018
This is an appeal from an order of the High Court (Quirke J.) made herein on the 28th November, 2011, whereby it was ordered that the plaintiff be at liberty to amend its summary summons in the terms underlined in red set forth in the schedule to the order. In essence, the notice of appeal complains of two matters in relation to the relevant amendment of the summary summons. First of all it is contended that the learned judge of the High Court erred in failing to appreciate that by permitting the amendment of the summary summons, the defendant/appellant would be deprived of a statute of limitations defence. The second principal issue complained of was that in allowing the amendment, the learned trial judge erred in permitting the plaintiff/respondent to add a new cause of action, where the factual basis for that cause of action was first pleaded in the statement of claim dated the 15th December, 2009, by which time the cause of action was already statute-barred. Underlying the grounds of appeal is a complaint that the learned trial judge did not consider or rule on the "statute of limitations point" at the hearing of the motion to amend the summary summons.
In order to understand the issues that arise in this appeal it is necessary to set out some information as to the complicated procedural history of this matter.
On the 2nd May, 2003, the defendant (herein after referred to as Mr. Mangan) delivered for collection a cheque to the plaintiff (hereinafter referred to as the Bank). The cheque was dated the 24th April, 2003, by a company called Kingswood Plant Hire Limited in the sum of €62,600. The cheque was made payable to Mr. Mangan. Mr. Mangan lodged the cheque to an account of Newtown Grain Limited (hereinafter referred to as Newtown), a company of which Mr. Mangan was a director and some days later on the 9th May, 2003, Mr. Mangan obtained a draft in favour of Newtown in the amount of €63,000. The cheque drawn by Kingswood Plant Hire Limited was dishonoured by non-payment and returned marked "Payment stopped". Notice of dishonour was duly given to Mr. Mangan. It is in that context that on the 6th July, 2009, proceedings were commenced by the Bank against Mr. Mangan by way of summary summons seeking the amount of the said cheque being €62,600. It would appear that prior to the issue of these proceedings, the Bank made a complaint to the Gardaí in respect of the matters complained of and in fact Mr. Mangan was prosecuted in relation to the matter before the Dublin Circuit Criminal Court. At the conclusion of the evidence the trial judge directed the jury to find Mr. Mangan not guilty of the charges before the Court. It was only after the conclusion of the criminal proceedings that the summary summons was issued.
Following the commencement of the proceedings, a motion seeking liberty to enter final judgment was issued by the Bank. After an exchange of affidavits between the parties, the matter came before the High Court (McGovern J.) by way of appeal from the refusal of the Master of the High Court to grant liberty to the Bank to enter final judgment against Mr. Mangan and judgment was given against Mr. Mangan in the sum of €62,600 together with interest thereon. The judgment of the High Court was then the subject of an appeal to this Court and by order dated the 16th October, 2009, the appeal of Mr. Mangan was allowed and the order of the High Court was discharged and the matter was then adjourned for plenary hearing in accordance with Order 37, Rule 7 of the Rules of the Superior Courts ("the RSC") as if the proceedings had been commenced by plenary summons. The order of the Supreme Court provided for the exchange of a statement of claim and a defence.
Following the delivery of the statement of claim and the defence and counterclaim and an exchange in relation to particulars, a notice of motion was issued on behalf of the Bank seeking leave to amend the summary summons which came on for hearing before the High Court on the 28th November, 2011. This was almost two years after the statement of claim had been delivered. Brian McGuinness, a manager in the Bank, swore the affidavit on its behalf and he explained that in the statement of claim as delivered, the Bank claimed damages for money had and received as restitution for unjust enrichment. Mr. Mangan in his defence specifically denied the entitlement of the Bank to maintain a claim for unjust enrichment as well as denying that he had been unjustly enriched. Mr. McGuinness pointed out that he was advised that Order 2 of the Rules of the Superior Courts prevents a claim for unjust enrichment from forming part of a summary summons. Accordingly, it only became possible to maintain such a claim once the matter was adjourned to plenary hearing. He was further advised that it may not have been necessary to bring such an application but it was being brought out of an abundance of caution. He concluded that the proposed amendment was necessary for the purpose of determining the real questions in controversy between the parties. A further affidavit was sworn by Peter Johnston, solicitor, on behalf of the Bank, exhibiting certain correspondence between the parties which included a letter indicating Mr. Mangan's intention to object to the application to amend for the reasons set out in a letter of the 10th May, 2011. No affidavit was filed on behalf of Mr. Mangan in respect of the motion to amend. Instead, reliance was placed on the correspondence between the parties and exhibited in the affidavit of Mr. Johnson.
The Court has an agreed note prepared by counsel in relation to the hearing before the High Court on the 28th November, 2011. It appears that in the course of the application counsel on behalf of Mr. Mangan stated that there was serious objection to the amendment of the proceedings on the basis that the Bank had chosen to proceed by way of summary summons, that by instituting its claim in that way, it had chosen to ground its claim as a liquidated amount and must be taken to have abandoned the claim for unjust enrichment. It was further submitted that it was far too late in the proceedings for the plaintiff to be seeking to amend particularly where the facts dated back to May 2003 in circumstances where the unjust enrichment claim, first raised in the statement of claim in December 2009, was clearly statute-barred. The claim in respect of unjust enrichment was described as a new cause of action by Mr. Mangan but counsel for the Bank submitted to the Court that the new cause of action did not arise from any new facts which would give rise to any Statute of Limitations issue and that accordingly the amendment was within settled law and the authorities in this area. The High Court considered the submissions made by counsel and said that the amendments appeared to be in order and that there was no valid reason not to amend the summons at this time and that if the defendant wished to object to this cause of action he could do so at the trial of the matter. Accordingly, an order was made amending the summons. The fact that it might be appropriate to raise the Statute of Limitations point as a preliminary issue was accepted as an issue that might give rise to additional costs but it was the view of the Court that that was not a reason to refuse the application to amend the summary summons. A notice of appeal dated the 24th February, 2012, was then lodged in respect of the order of the High Court aforesaid.
In the meantime, an amended defence was filed which contained a preliminary objection in the following terms:
No application was made to have the preliminary issue raised in relation to the statute of limitations point dealt with in the High Court. This is understandable having regard to the arguments on the Statute of Limitations point made in the course of this appeal to which reference will be made subsequently in the course of this judgment. Subsequently, following the Thirty Third Amendment to the Constitution of Ireland, the appeal herein was transferred to the Court of Appeal. The transfer was the subject of a recent application to revoke the order transferring to the Court of Appeal and a determination to that effect was made recently. Accordingly this matter came before this Court for hearing in circumstances where a notice of expedited appeal had been filed on the 23rd June, 2017, and a respondent's notice was filed on the 17th July, 2017. It should be noted that the grounds of appeal as set out in the expedited notice of appeal are somewhat more concise than those originally comprised in the notice of appeal to this Court. Having said that, the essence of the appeal remains the same.
"By way of preliminary objection to these proceedings, the defendant contends that, pursuant to the provisions of the Statute of Limitations Acts 1957, the plaintiff is not now entitled to maintain its alternative claim regarding unjust enrichment as against the defendant either in the manner alleged or at all. In the premises, the defendant contends that the plaintiff's claim regarding unjust enrichment as against the defendant is statute-barred. A preliminary application will be made on behalf of the defendant seeking to have the plaintiff's claim dismissed pursuant to the provisions of the said Statute of Limitations Acts 1957 as amended in advance of the hearing of this action."
Mr. Mangan in his submissions contends that the general rule to be applied on an application to amend pleadings is that to be found in Delany and McGrath, Civil Procedure in the Superior Courts, 3rd Ed., (Dublin, 2012) paragraph 5 - 181 where the authors state:
It is acknowledged that insofar as there is a general rule to that effect that it has been departed from in a number of cases starting with the decision of Keane J. in Krops v. Irish Forestry Board Limited  2 I.R. 113, at page 121 and followed in a series of subsequent cases such as Smyth v. Tunney  3 IR 322 in which Finnegan J. stated:
"One very specific type of prejudice deserving of separate consideration is where the effect of a proposed amendment would be to deprive the affected party of the benefit of the Statute of Limitations."
It is contended on behalf of Mr. Mangan that the facts pleaded in the summary summons are not sufficient to support the new cause of action. In order to rely on a claim in respect of unjust enrichment the Bank made new allegations of fact in relation to a second cheque contained in paragraphs 13 to 16 of the statement of claim. It was pointed out that these facts are not simple errors such as an error in date or an error as to location which do not prejudice Mr. Mangan. It is also contended that they are not "clarifications" as suggested by the Bank but are material facts, not pleaded in the summary summons and not contained in the affidavit sworn on behalf of the Bank in support of the application for summary judgment. In addition, it is pointed out that a claim for unjust enrichment is materially different to the liquidated claim originally made in the summary summons. It is a claim in restitution for damages for money had and received and unjust enrichment as such could never have been pursued by way of summary summons. Accordingly it is contended that if the Bank is permitted to include this new claim for unjust enrichment by way of amendment, Mr. Mangan will be prejudiced by being deprived of his right to rely on the Statute of Limitations in respect of that claim. Such an amendment would render the provisions of the Statute of Limitations meaningless.
"In summary the law as to amendment now is that an amendment will be allowed if it is necessary for the purposes of determining the real issues in controversy between the parties. The addition of a new cause of action by amendment will be permitted notwithstanding that by the date of amendment the Statute of Limitations had run if the facts pleaded are sufficient to support the new cause of action. Facts may be added by amendment if they serve only to clarify the original claim but not if they are new facts. Simple errors such as an error in date or an error as to location which do not prejudice the defendant and enable the real questions in controversy between the parties to be determined will be permitted."
Two other grounds of appeal have been raised by Mr. Mangan in the expedited notice of appeal. One relates to an assertion that the proposed amendment amounts to an abuse of process. It is contended that where a deliberate decision was taken by the Bank to omit the plea of unjust enrichment to take advantage of the summary summons procedure, it is an abuse of process to attempt to introduce such a claim by way of amendment, following the decision of the Supreme Court to grant summary judgment, having elected to omit such a claim from its pleadings for strategic reasons. Put simply, having opted to bring a claim by way of summary summons, the Bank cannot take advantage of the fact that the proceedings were adjourned to plenary proceedings to submit what is in essence a new claim that could have been commenced by way of plenary summons in the first instance.
The second issue raised relates to the fact that it was wrong to permit an amendment of the summary summons to include a new cause of action statute-barred at the date of the amendment in circumstances where a claim for unjust enrichment could not have been made in proceedings commenced by summary summons. It is submitted on behalf of Mr. Mangan that having elected not to pursue a claim for unjust enrichment so as to avail of the advantages of the summary summons procedure and having failed to secure summary judgment, it was not open to the Bank to now seek to expand its claim through amendment to include this claim. The attempt to do so in circumstances where the unjust enrichment claim was statute-barred as of the date of the application to amend prejudices Mr. Mangan by depriving him of a defence under the statute of limitations.
The Bank, in its turn, complains that Mr. Mangan is not entitled by way of appeal to raise issues concerning the pleadings delivered in 2009 and in particular the parts of the statement of claim which dealt with certain factual matters and included a claim for damages for money had and received in restitution for the unjust enrichment of the defendant. The Bank therefore complains of the fact that in the course of this appeal, an issue has been raised as to matters set out in the statement of claim which were not and could not have been the subject of an appeal from the decision of the High Court on an application to amend the summary summons.
The Bank also pointed out that Mr. Mangan in his submissions stated that the claim for unjust enrichment is based on new facts pleaded for the first time in the statement of claim on the 15th December, 2009, but the Bank complains that there is no evidence of the facts alleged to have been impermissibly introduced by way of the statement of claim. This difficulty arises by virtue of the fact that no replying affidavit was furnished by Mr. Mangan in respect of the Bank's motion to amend the summary summons. It is the Bank's contention that the substance of paragraphs 13 to 16 of the statement of claim was part of the summary proceedings and that those paragraphs are properly pleaded. It is contended that sufficient facts are pleaded even in the summary summons for the cause of action sought to be added by way of amendment. Further it is submitted that in the original defence and counterclaim filed on behalf of Mr. Mangan on the 12th October, 2010, despite the fact that there was a claim for unjust enrichment included in the statement of claim, no point was raised by way of defence to that claim on the basis of the statute. Thus the Bank objects to what it describes as a very belated challenge to the matters pleaded at paragraphs 13 to 16 of the statement of claim. Indeed it was noted that in the course of the original defence and counterclaim, the defendant, Mr. Mangan, pleaded as follows:
Thus, it is submitted that following the delivery of the statement of claim in December 2009, Mr. Mangan had failed to plead that he was proposing to rely on the statute. Accordingly, the Bank has contended that Mr. Mangan is estopped from challenging the inclusion of those paragraphs in the statement of claim at this stage. It was not until the matter was before the High Court on the 28th November, 2011, that the issue of the Statute of Limitations was first raised. Indeed, it was pointed out that the complaint about new facts was first raised when the matter was appealed to this Court as no such argument was made before the High Court and the complaint about new facts being relied on in the statement of claim first emerged in an affidavit sworn by Mr. Mangan's solicitor grounding the application to extend time to appeal to the Supreme Court.
"The defendant makes no admission in respect of the matters set out in the narrative contained at paragraphs 13 to 15 inclusive of the plaintiff's statement of claim and puts the plaintiff upon strict proof thereof."
The Bank goes on to make the point in relation to the matters pleaded in paragraphs 13 to 16 that the facts pleaded therein are not necessary for the claim of money had and received/unjust enrichment, which claim was included as an answer to Mr. Mangan's defence during the summary proceedings. Such claim is a straightforward one in Irish law and can, at a minimum, be supported by the facts pleaded in the summary summons. There is no need for the Bank to rely on the "second cheque" referred to in the statement of claim, in those paragraphs, even if the facts as to that cheque are properly pleaded. It is further contended that there are no "new facts": the facts pleaded in paragraphs 13 to 16 of the statement of claim were raised during the summary proceedings. Given that Mr. Mangan has delayed in raising this issue, he is estopped from now so doing. It was also contended that no prejudice is or could be caused to Mr. Mangan because these matters of fact have already been ventilated in the proceedings. Indeed, Mr. Mangan raised full particulars of those pleas. Finally it is pointed out that paragraphs 13 to 15 of the statement of claim are intimately related to the facts pleaded in the endorsement of claim on the summary summons and arise out of the same or substantially the same facts and clarify the case being made by the Bank.
Insofar as a procedural issue has been raised by Mr. Mangan, namely that the Bank is estopped from raising the claim in respect of unjust enrichment on the basis that any such cause of action was waived by the Bank in issuing proceedings by way of summary summons, and alternatively that such a plea would have been procedurally irregular and cannot be included in summary proceedings, the Bank has made the following points,
In the course of their submissions reliance is placed on the provisions of Order 20, rule 6 of the Rules of the Superior Courts which provides:
(1) that there is no procedural bar on the Bank expanding a summary procedure case which has been adjourned to plenary hearing;
(2) no authority has been cited to support such a contention; and no basis has been made out for the creation of such a rule;
(3) as a matter of procedure, it is open to this Court to decide that the application to amend is unnecessary.
Reference was also made to the provisions of Order 37, rule 7 of the RSC which provides as follows:
"Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement on the summons."
Finally the Bank pointed out that it is seeking damages for money had and received by virtue of the defence raised by Mr. Mangan during the summary proceedings. The remedy relates to the original cause of action, being Mr. Mangan's failure to return monies to which he has no entitlement and which he obtained on foot of a dishonoured cheque.
"Upon the hearing of any such motion by the Court, the Court may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just."
As such, those facts if accepted by a court, could also support a claim for unjust enrichment. In truth, that is the essence of the claim being made.
There is little dispute between the parties as to the principles applicable to an application to amend pleadings. The general rule is that leave to amend pleadings will not be permitted if to do so would prejudice the other party. One particular form of prejudice that has been recognised is an amendment that would deprive the affected party of the benefit of the Statute of Limitations. (See the passage cited from Delany and McGrath referred to earlier in the course of this judgment.). Even though there is such a general rule it is also clear from the authorities referred to above such as Krops v. Irish Forestry Board Limited and Smyth v. Tunney, that there may be exceptions to the general rule. It is important to make the point that insofar as an amendment is made to a pleading such as a summons, be it a summary summons or a plenary summons or a special summons, the amendment will have effect as if it was part of the summons from the date of issue and as such a new claim made by way of amendment to the original summons will, for the purpose of the Statute of Limitations, take effect as and from the date of issue of the summons rather than the date of amendment. Thus, such an amendment would have the effect of depriving the affected party of the benefit of the Statute of Limitations. It is in that context necessary to consider the manner in which the application to amend was dealt with by the learned trial judge. It is clear from counsel's agreed note of the submissions before the learned trial judge and from the hearing and decision of the High Court on the 28th November, 2011, that the issue of prejudice by virtue of such an amendment, having regard to the effect it would have in terms of the statute of limitations, was made clear to the learned trial judge. Nevertheless, as is indicated, the learned trial judge "stated that there was no valid reason not to amend the summons at this time and that if the defendant wished to object to this cause of action he could do so at the trial of the matter". Unfortunately, this was an error on the part of the trial judge having regard to the general rule in relation to the amendment of pleadings. Given that any amendment made to the summary summons would be viewed as having been there from the date of issue of the summons, the Bank would have the benefit of having the new cause of action and new facts, included in the pleadings as if they had been there from the date of issue of the proceedings and as such, Mr. Mangan would have been unable to raise the issue of the Statute of Limitations as a defence in respect of the "new cause of action and new facts". Despite the fact that the learned trial judge was in error to that extent, is it in fact the case that the amendment sought by the Bank creates a new cause of action based on new facts? It seems to me that the answer to this question depends on the extent to which reliance is placed on the matters pleaded in paragraphs 13 to 16 of the statement of claim. Without the "new facts" pleaded therein, could a claim in respect of unjust enrichment based on the facts of this case as originally set out in the summary summons, namely that a cheque was lodged for collection by Mr. Mangan to the account of his company and that the cheque was dishonoured and that the funds in the company account were used to obtain a bank draft, be made? I am satisfied that on the facts as originally set out in the summary summons, the facts alleged would give rise to a claim:
Having said that, I have a difficulty with the facts set out in paragraphs 13 to 16 of the statement of claim. It would be helpful to set out those paragraphs in detail given that they are the source of so much controversy in this appeal. It is pleaded therein as follows:
In effect, the Bank says that Mr. Mangan benefited twice from the transaction with Kingswood Plant Hire. In the first instance there was the sum obtained as a result of the lodgement of the original cheque in the amount of €62,600 which was thereafter used to obtain the bank draft in the sum of €63,000. Separately, Kingswood Plant Hire thereafter gave two cheques to Mr. Mangan in substitution for the returned cheque. It seems to me that a further set of payments made to Mr. Mangan in respect of the original transaction is not of any particular relevance in terms of establishing the Bank's claim to have the sum repaid either on foot of the cheque or on foot of a cause of action based on unjust enrichment. It could not in any shape or form be regarded as one of the proofs necessary in order to establish such a claim. To that extent, it appears to be unnecessary to include reference to the second transaction between Mr. Mangan and Kingswood Plant Hire. In the course of submissions counsel on behalf of the Bank acknowledged that in order to make its case it was not necessary to make reference to the second set of transactions. Although the Bank has queried why no steps were taken following the delivery of the statement of claim to raise any issue concerning the pleading of those facts in paragraphs 13 to 16, it does seem to me that if the Bank wished to rely on the facts of the second transaction to ground its case for unjust enrichment, then in those circumstances, the amendment in this case could not be permitted to remain in the pleadings. In other words, if these are new facts relied on to support a new cause of action then, clearly, the pleadings in that regard fall foul of the principles applicable to the amendment of pleadings and would cause prejudice to Mr. Mangan by depriving him of a defence under the Statute of Limitations and consequently, could not be permitted. However in my view, the cause of action in relation to unjust enrichment relies on the same facts as grounded the claim as originally stated. For that reason I would permit the amendment to stand.
"13. During April 2003 the defendant sold an item of machinery to Kingswood Plant Hire and on 24th April 2003 that company paid a deposit and issued the cheque for €62,600 made payable to the defendant in respect of same.
14. This cheque was returned by Ulster Bank to the defendant marked 'Refer to Drawer'. On the 1st May 2003, Kingswood Plant Hire gave the defendant a third party cheque for €60,500 drawn on an account of Grennan Brothers Limited in substitution for the returned cheque.
15. This subsequent payment had the effect of setting the financial differences in respect of which the cheque was originally drawn and Kingswood Plant Hire subsequently paid the defendant the difference in the amounts of the two cheques with a further cheque for €2,100 issued on 6th May 2003.
16. The defendant therefore knew or ought to have known that the cheque should not clear."
As I have made clear I have concern in relation to some of the pleadings in paragraphs 14, 15 and 16. I see no difficulty in relation to the contents of paragraph 13. There is no difficulty in relation to the first sentence of paragraph 14. If the Bank wishes to rely on the amendment, then, it seems to me that the remaining paragraphs of the statement of claim complained of by Mr. Mangan, should be excised from the Statement of Claim.
Insofar as it might be a concern on behalf of Mr. Mangan that there was no previous reference to the original cheque having been lodged in Ulster Bank and then returned marked "refer to drawer", I consider that no issue could arise in this regard. Although that was not specifically referred to in the affidavit of Brian McGuinness grounding the application for liberty to enter final judgment, he did exhibit the original cheque and that cheque as exhibited contains the words "refer to drawer", albeit, crossed out. Thus, whilst it may not have been apparent from the face of the cheque that the cheque had first been presented to Ulster Bank, it was undoubtedly the case that there had been a previous presentation and that much was apparent from the face of the cheque. Indeed this very point was noted in the submissions of Mr. Mangan made to the High Court before Mr. Justice McGovern (see paragraph 9 and 10).
I accept that the learned High Court judge in permitting the amendment in this case applied the wrong test. He was mistaken in his view that the question raised by the defence in relation to the Statute of Limitations could be considered at a later stage. For reasons previously explained it is clear that that could not be done. Insofar as the jurisdiction to consider an amendment is concerned, the Court has to have regard to the possibility of a defence under the Statute of Limitations being raised and if such a defence is raised and there is a basis for such a defence, an amendment could cause prejudice to a defendant and is therefore a reason for refusing to allow an amendment. On the facts of this case, it would appear that the amendment of the summons to include a claim for unjust enrichment is one which is based on the same facts as were already contained in the pleadings up to the date of amendment save for the additional facts pleaded in the statement of claim referred to above. It has been conceded on behalf of the Bank that the claim for unjust enrichment could be maintained without regard to those facts and subject to those facts being excised from the statement of claim, it seems to me that it would be appropriate to allow the amendment to be made.
It is not necessary to elaborate on the other arguments made in this case but for the avoidance of doubt, I would like to make one further observation. It was suggested that a summary summons could not be amended to include a claim that could not have been included in a summary summons from the outset. No authority was produced to support such a proposition. I am satisfied that a summary summons can be amended once the case has gone to plenary hearing. Order 37, rule 7 of the RSC provides that where a case is adjourned to plenary hearing, it proceeds as if the proceedings were commenced by plenary summons. Accordingly, there could not be a bar to including a cause of action and seeking a remedy which would not have been available in summary proceedings once the case has been adjourned to plenary hearing.
In the circumstances and subject to the Bank removing the offending parts of paragraphs 14 to 16 of the Statement of Claim inclusive, I would dismiss the appeal.