Pleadings Default 22

Cases

Onyenmezu v Firstcare Ireland Ltd & ors

(Approved) [2019] IEHC 697 (25 September 2019)

Page 1 ⇓THE HIGH COURT[2019] IEHC 697[2018 No. 743 S]BETWEENCECILIA ONYENMEZU (TRADING AS NORLIA RECRUITMENT SERVICE)PLAINTIFFANDFIRSTCARE IRELAND LIMITED, FIRSTCARE IRELAND (BLAINROE) LIMITED,FIRSTCARE (EARLSBROOK) LIMITED, FIRSTCARE IRELAND KILCOCK LIMITED,BENEAVIN HOUSE LIMITED, AND BENEAVIN LODGE LIMITEDDEFENDANTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September,20191. The defendants’ solicitor attended the proceedings in this case in the Master’s Court on anumber of occasions but through inadvertence failed to attend when the matter camebefore the High Court. That solicitor has said on affidavit that this was the first time in 32years 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 infavour of the plaintiff. Order 36, r. 33 allows six days to apply to set aside a judgment ina 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 faciaswas served, which was in late July. He sought agreement to a stay for a limited period oftime but that was rejected. He then wrote to the plaintiff’s solicitor, expressly drawingattention 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 apostponement 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 hisclient 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 doneso but merely took instructions and then wrote a belligerent letter of rejection based onthose instructions. It was extremely uncollegiate not to have endeavoured to persuade hisclient to agree to even a temporary postponement. That extremely unhelpful attitudecan’t have improved the defendants’ solicitor’s holiday. The latter returned on 7thAugust, 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 settingaside the judgment and order of O’Hanlon J., or an order to the same effect under thecourt’s inherent jurisdiction.6. The defendants’ solicitor’s affidavit avers to there being a bona fide defence to theproceedings, and that seems to me to well surmount the test for a bona fide defencebased on credible evidence as set out in the caselaw e.g. AIB Plc v. Stack [2018] IECA 128(Unreported, Court of Appeal, 10th May, 2018).Page 2 ⇓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 thestay on execution on 15th August, 2019, as did O’Connor J. on 12th September, 2019. Ihave now received helpful submissions from Mr. Patrick Fitzgerald B.L. for the defendantsand Mr. Barney Quirke S.C. (with Mr. John F. Quirke B.L.) for the plaintiff.The Law8. 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 toattend court compared with failure to attend that is down to mere inadvertence. WhileMr. Quirke’s submission majored on what he portentously called “the fundamentalprinciple of finality”, that is much more relevant to the first type of failure to attend,namely the tactical one, which was the factual context of Nolan v. Carrick [2013] IEHC 523(Unreported, Dunne, J., 25th October, 2015). This is a case of the latter, theinadvertent failure, and in that regard it appears that much more relevant is thejudgment of Denning L.J. (as he then was) in Hayman v. Rowlands [1957] 1 All E.R. 321at 323 “I have always understood that, if by some oversight or mistake a party does notappear at the court on the day fixed for the hearing, and judgment goes against him butjustice can be done by compensating the other side for any costs and trouble to which hehas been put, then a new trial ought to be granted. The party asking for a new trial oughtto show some defence on the merits, but, so long as he does so, the strength orweakness of it does not matter. I think it plain in this case that the tenant had a defenceon the merits. He had a defence on the question whether it was reasonable to make onorder for possession against him.”9. Applying such an approach here it is clear that the order should be set aside and indeed itwould be unjust to make any other decision. While Denning L.J. went on to refer to theneed for terms, such a need is considerably diluted in the present case given the attitudeand conduct of the plaintiff and her solicitor. The plaintiff’s solicitor’s affidavit makes anumber of pettifogging legalistic points, the most flawed of which is that it is claimed tobe “of particular relevance” that the defendants did not seek promptly to appeal the orderof O’Hanlon J. That is a misunderstanding of appellate procedure. The much quicker andmore convenient method of addressing an order made in the absence of a party is toapply to the court of first instance to set aside that order or, where applicable, to apply toextend time to do so. It would add to the workload of the appellate courts for no goodreason whatsoever to proceed by way of an appeal. Certainly an ex parte order cannotbe appealed by the respondent, only by an unsuccessful applicant. The respondent’sremedy is to apply to the trial court to set the ex parte order aside. A similar logic shouldapply to an order obtained in the absence of one side. The application should be made inthe first instance to the court of trial.10. The defendants have in fact applied to the Court of Appeal to extend time (Court ofAppeal 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’ affidavitswere before O’Hanlon J. the court had all the relevant information, even though thePage 3 ⇓defendants were not represented. That misses the point completely because it assumesthat the defendants’ presence or absence would not have made any difference. Contraryto Mr. Quirke’s argument, there is no requirement for a defendant to present newevidence on the merits that was not before the court that granted a judgment inabstentia.11. As to whether the set-aside order should be under the inherent jurisdiction or the rules ofcourt, 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 recallthe judgment of Geoghegan J. in Croke v. Waterford Crystal Ltd. [2004] IESC 97 [2005] 2I.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 notmaterially 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 isconsistent 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 ofextending time does not apply to the inherent jurisdiction because that jurisdiction doesnot have a specific time limit; but insofar as the court is concerned with the question ofdelay I am satisfied that the defendants acted with all reasonable speed in thecircumstances. While Mr. Quirke majored on the extraordinary and unusual jurisdiction toset aside a final judgment as set out in R. v. Bow Street Magistrates, ex parte Pinochet(No. 2) [1999] 2 WLR 272 and discussed in Nolan v. Carrick [2013] IEHC 523, thathigh threshold is more relevant to a different situation where the absence was as a resultof a deliberate decision. A much lower threshold applies where the absence isinadvertent.Order12. The plaintiff’s legal approach here is the undesirable and somewhat disreputable one oftrying to take advantage of a bona fide mistake by the other side’s solicitor. One can onlyimagine the reaction if the shoe was on the other foot. It will, on reflection, beinteresting to see what happens the next time Mr. Branigan makes a mistake and has toask for the indulgence of the other side or the court. Sure, the plaintiff’s solicitor is boundby instructions; but he doesn’t seem to have tried to influence those instructions in areasonable direction. The tone of his correspondence was belligerent at all stages, evenin the letter rejecting a temporary stay pending the defendant solicitor’s return from hisfamily holiday. That is certainly not how the game should be played. It is interesting onreflection to note that while the Shorter Oxford English Dictionary defines the mid-16thCentury 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) includethe specifically legal sense of the term, namely to take unfair or unsportsmanlikeadvantage 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 presentapplication has highlighted, then Mr. John Branigan of Branigan Feddis Solicitors canlegitimately 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 settingaside the judgment and order of O’Hanlon J. of 1st July, 2019, and an order re-listing thematter in the Chancery List in early course.

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