Settlements

Cases

Waliszewski v McArthur and Co (Steel and Metal) Ltd

[2015] IECA 298

Ex tempore JUDGMENT of Mr. Justice Kelly delivered on the 19th day of October 2015
1. Mr. Waliszewski, the plaintiff in High Court proceedings seeking damages for personal injury against the defendant his employer, was unsuccessful in his claim. In a judgment in written form delivered by Barton J. on 25th of April this year he dismissed the claim on two bases.

2. First, he did so pursuant to the provisions of s. 26 of the 2004 Act. He then went on to say that had the court decided to take a different course, that is to have refused the application which was made under s. 26, he would in any event have dismissed the plaintiff’s claim since he was satisfied that, insofar as the plaintiff did suffer an injury to the back in the course of his employment, the most likely cause arose as a result of something in respect of which the employer was not liable. So, the case was dismissed both by reference to s. 26 and, even if the judge was wrong to do so under that section, he would have dismissed the case in any event.

3. From that decision an appeal was brought by Mr. Waliszewski. The notice of appeal was defective because no grounds were specified which would be relied upon by him in prosecuting the appeal. When the appeal came before Mrs. Justice Finlay Geoghegan she gave directions in relation to the matter and made orders, the contents of which I need not recite in any detail or indeed at all now.

4. Suffice it to say that a firm of solicitors, Messrs. Darcy Horan & Company, provided assistance to Mr. Waliszewski to assist in lodging his appeal. The issue before the court this morning turns upon an exchange of correspondence between those solicitors and the solicitors acting for the employer. I will come to that correspondence in a moment.

5. The contention which is made is that this appeal should not be allowed to proceed any further because there has been a settlement of the matter, an agreement between the solicitors authorised by Mr. Waliszewski and the employer’s solicitors which brought the matter to the end. That contention has given rise to the bringing of this motion which seeks a declaration that the appeal has been discontinued or compromised by Mr. Waliszewski and the defendant seeks an order dismissing the appeal.

6. The correspondence which is relied upon took place over just three days. On 1st July 2015, Mr. Waliszewski’s legal advisors, D’Arcy Horan & Company wrote to Kent Carty solicitors for the defendant in the litigation and this is what they said:-

“Dear Sirs,
We refer to the above mentioned matter and to our telephone conversation of earlier today. We were initially instructed by Mr. Waliszewski at the eleventh hour to assist in lodging his appeal of the judgment against him for 22nd May 2015. We agreed to assist in terms of lodging the appeal only. We did not agree nor intend to come on record to deal with the appeal. Mr. Waliszewski has now instructed us to file a notice of discontinuance on his behalf. We would be most grateful if you would kindly confirm that your client will not make an application for costs against our client. Furthermore, can you also confirm that you won’t seek recovery of any costs against this firm personally. We sincerely apologise for any inconvenience caused. We would be very grateful if you would revert at your earliest convenience.”

7. On the following day, Kent Carty solicitors for the defendant in the litigation wrote as follows:-
“We refer to yours of 1st inst. We have taken our clients instruction in relation to your proposal. Our client is agreeable to not seeking recovery of its costs against your client and/or your firm subject to receipt of a filed copy of a notice of discontinuance by close of business tomorrow the 3rd inst.”
8. That letter was responded to on 3rd by Messrs. Darcy Horan as follows:-
“We refer to your previous correspondence of 2nd inst. We enclose herewith Mr. Waliszewski’s notice of discontinuance duly signed by him.”
9. Attached to that letter was a notice of discontinuance. It is admittedly headed ‘The High Court’ but it does say that the plaintiff wholly discontinues these proceedings against McArthur & Company (Steel and Metal) Limited. It is dated 3rd July 2015. There is provision in it for it to be signed by the solicitor for the plaintiff but it is in fact signed by Mr. Waliszewski himself.
10. The fact that the notice of discontinuance is headed ‘The High Court’ to my mind is of no significance having regard to the preceding correspondence and having regard to the way in which it is worded. It is a complete discontinuance of proceedings against the defendant.

11. In my view, that brought this appeal to an end. It was discontinued in accordance with terms which were offered by Mr. Waliszewski’s solicitors on 1st July which were accepted on 2nd July and which were implemented on 3rd July by the service and filing of that notice of discontinuance.

12. Consequently, in my view there is no matter now which can proceed to appeal. Mr. Waliszewski says that he has been busy in compiling evidence which will demonstrate that his injuries were somewhat different to the injuries which were dealt with by the judge. But that is of no assistance on this application because this application deals with the question of whether there is a valid appeal before the court at all.

13. In my view, having regard to what has passed between the solicitors advising Mr. Waliszewski and the solicitors who were on record for the defendant and the service of the notice of discontinuance, there was accord and satisfaction which brought this appeal to an end. Consequently, for my part, I would grant the relief which is sought in the motion and dismiss this appeal.
Irvine J.
14. It is indeed regrettable that Mr. Waliszewski now today before this court has indicated that he wishes to pursue his appeal against the order of Mr. Justice Barton made in February of this year. But unfortunately it is the position from a legal perspective that he did not adopt that same position back on the 1st, 2nd and 3rd July of this year when it is clear from correspondence that he instructed his solicitors to enter into an agreement with the defendant’s solicitors whereby he would discontinue his action if the defendant did not pursue the order for costs which it obtained back in February 2015. He himself entered into that agreement fully and acknowledged his agreement by signing the notice of discontinuance on 3rd July 2015.

15. Unfortunately, the correspondence between the 1st July and 3rd July is incapable of any other construction than a binding agreement whereby Mr. Waliszewski must be deemed to have abandoned his appeal. For those reasons I too would allow the relief sought.
Hogan J.
16. I also agree with the judgment of Mr. Justice Kelly and Ms. Justice Irvine. Again, it is unfortunate from Mr. Waliszewski’s perspective that he entered into this agreement if he wanted to pursue the appeal. But in the course of litigation decisions have to be made sometimes at short notice, sometimes very difficult decisions. But the courts have to respect agreements made between the parties, save perhaps in truly exceptional circumstances. Here, such an agreement was made and this Court cannot, I fear, look behind it.

17. As my colleagues have pointed out the correspondence admits of only one interpretation. Specifically the notice of discontinuance of 3rd July was executed in this case and therefore there is no appeal properly before the court at this stage by reason of the execution of that notice of discontinuance.

18. For those reasons, I fear, that I must hold that the court lacks jurisdiction and any purported appeal must be dismissed.

Allied Irish Banks Plc v Hanrahan [2015] IECA 77

Ex Tempore judgment delivered on the 13th day of April 2015, by Mr. Justice Kelly
1. There is before the court this morning a notice of motion which has been brought by Mr. and Mrs. Hanrahan in which they seek a number of reliefs. Before I come to consider those reliefs it is necessary to sketch out in a little detail the background to the matter.

2. On the 16th February, 2004, a judgment was obtained by the plaintiff Allied Irish Banks against Mr. and Mrs. Hanrahan for a sum in excess of €80,000.00. The Hanrahans brought an appeal to the Supreme Court against that judgment. That appeal has been pending since that time. Following the Article 64 amendment to the Constitution, the appeal fell to be dealt with in this Court and in due course came before the court for directions.

3. It was intimated that negotiations were going on between the parties at that stage and the matter was adjourned on a number of occasions. Those negotiations resulted in a consent being executed by the plaintiff bank and Mr. and Mrs. Hanrahan.

4. The terms of settlement were by agreement of the parties made a rule of court. It is not necessary to go into the details of the terms of settlement save to record that they provided for the setting aside of the judgment which had been granted in the High Court in February 2004. In lieu thereof, a lesser sum by a substantial margin, some €30,000 less, was substituted and a judgment for that sum entered. But it was agreed that execution would not issue in respect of that sum for a number of years provided that certain sums were paid. There are other terms of the settlement which are not particularly germane for the purpose of this ruling.

5. At the request of Mr. Hanrahan liberty was given to apply. It is on foot of that liberty to apply that this notice of motion is brought this morning.

6. The background to the application this morning appears to arise from the fact that there was a sum of money standing to the credit of Mr. Hanrahan with Standard Life. In January 2008, that company wrote to Mr. Hanrahan in the following terms:

“Dear Hanrahan
I write in reference to our previous correspondence regarding your life insurance policy held with Standard Life. As per our conversation we investigated any assignments that may be connected to your policy. Furthermore AIB have responded with confirmation of their status as assignee and have requested that the monies be paid straight to them.

However as previously agreed we have withheld this payment until a resolution has been reached with AIB and we would be obliged if you would contact us in this regard.”

7. It would appear that as far as Mr. Hanrahan was concerned, those monies were still standing to his credit in Standard Life. However in the correspondence which has been exhibited, on the 22nd May, 2012, Allied Irish Banks wrote to Standard Life in the following terms:-
“Further to our telephone conversation today, we wish to confirm that we still hold a letter of assignment over the particular policy in question. We should be obliged if you could arrange to forward the proceeds of the policy to me at the above address please.
Thank you for your assistance in this matter.”

8. It would appear that on foot of that request, Standard Life did in fact pay the money to Allied Irish Banks.
9. Following the ruling of the settlement in this Court, Mr. Hanrahan went to Standard Life and it is his contention that he discovered for the first time that the monies which he believed were still standing to his credit with that company had in fact been paid to Allied Irish Banks in 2012.

10. On the 27th February, 2015, Standard Life confirmed the following to Mr. Hanrahan. They said: “I can confirm that we have paid the proceeds of the policy to AIB Bank under their notice of assignment reference dated the 10th January, 2001.

Confirmation was received from AIB on the 22nd May, 2012 that they still held an assignment on the policy.
The payment of €24,825.01 which was the final maturity value of the policy was made to AIB on the 19th June, 2012, for the attention of Declan Darby, Debt Recovery Department.

11. So, the monies were paid over and there is confirmation of that fact from Standard Life.
12. In fairness to Standard Life it has to be said that they subsequently acknowledged in open correspondence that the way in which Mr. Hanrahan was dealt with was not appropriate and was not in accordance with the standards which they would normally aspire to. They have made an offer of moneys to him with a view to addressing the acknowledged substandard treatment which he was given.

13. That is by way of background to put the motion which has been brought this morning into context. In it Mr. Hanrahan seeks a threefold relief. First he seeks an order compelling the plaintiff/respondent or the solicitor on record to explain why he was never informed of what took place between Allied Irish Bank and Standard Life Insurance. Second, he seeks an order compelling the solicitor on record, Mr. Galvin, to explain why he relied in negotiations on the original principal figure of €82,498.81 when the principal figure should have been €58,173.80 after the monies paid by Standard Life to AIB are taken into account. The third relief which he seeks is an order directing the plaintiff/respondents to return the monies wrongfully removed from Standard Life without the knowledge of the plaintiff/appellant and any other orders that the court may deem fit.

14. It is important to point out that the terms of the consent made no mention anywhere of Standard Life or the monies in question.

15. It is also important to delineate the limited jurisdiction of this Court. It is an appeal court and not a court of trial. The terms of consent which were entered into constituted a contract made between the bank and the Hanrahans in settlement of the appeal which has been on the books of the courts since 2004.

16. Those terms of settlement stand until such time as they are set aside. In the replying affidavit sworn by Mr. Galvin and again in open court, counsel on behalf of the bank made it clear that if Mr. Hanrahan wishes, it will agree to have the settlement set aside.

17. The effect of that would be that Mr. Hanrahan’s original appeal against the order of the High Court in February 2004 would revive, but so would the judgment for €82,498.81.

18. This Court was not a party to the negotiations which led up to the settlement being arrived at and formulated in the consent of the 25th February, 2015. They were conducted between Mr. Hanrahan and the solicitor acting on behalf of the bank. Still less was this Court involved in giving any form of approval to the terms of consent. All that happened was that a contract entered into between the parties was by their own agreement incorporated into a court order in settlement of the appeal.

19. It is not open to this Court and it does not have the jurisdiction to make orders of the type which are sought by Mr. Hanrahan in this notice of motion. It does not have jurisdiction to compel the solicitors on record to say why Mr. Hanrahan was not informed of what took place between Allied Irish Banks and Standard Life Insurance.

20. It does not have jurisdiction to compel the solicitor on record to explain how he computed the sums which are set out in the consent and why as is said by Mr. Hanrahan, the original €82,000.00 was not reduced to €58,000.00 having regard to the monies that were paid to the bank by Standard Life.

21. It does not have jurisdiction to make an order of the type which he seeks in para. 3 directing the bank to return the monies which he says were wrongfully removed from Standard Life.

22. The court simply does not have jurisdiction to deal with those three matters which Mr. Hanrahan seeks to advance here today. For my part, I take the view that it is not open to the court to make the orders sought.

23. One cannot but have sympathy for the position in which Mr. Hanrahan finds himself. But the position which obtains now is as follows. The settlement agreement which he entered into with the bank, and which I would have to say seems to be advantageous to him, stands until such time as it is set aside. It can be set aside in one of two ways; by agreement, and the bank has already indicated that it will be prepared to agree to this if Mr. Hanrahan wishes. Then the court will by consent set aside the terms of settlement. But as I pointed out that will revive the original judgment for €82,000.00 but so also will be revived the appeal brought by Mr. and Mrs. Hanrahan.

24. Alternatively, Mr. Hanrahan can take advice and if he wishes to seek relief in respect of the settlement in another court, a court of trial, that is entirely a matter for him.

25. I could not see that there would be much advantage to him in so doing, because the terms of settlement are clearly advantageous to him having regard to those to which I have adverted.

26. So far as I am concerned, I have to say that, sympathetic as I am to the plight of Mr. and Mrs. Hanrahan and conscious of the lengthy history of litigation that they have been involved in, I have to refuse the relief which is sought in the notice of motion on the basis that this Court does not have jurisdiction to make such orders or to entertain an application of this sort. For my part I would refuse the reliefs sought.

Finlay Geoghegan J.: I too would refuse the reliefs sought for the reasons set out by Mr. Justice Kelly and I also share the views that Mr. Justice Kelly has expressed as to what appears to be the benefit for Mr. and Mrs. Hanrahan of the consent which has been entered into. If the judgment of the High Court is revived in the principal sum of €82,498.81, it is a judgment that dates from the 16th February, 2004 and it revives not only for the principal sum, but also for interest which would have accrued since that date, so I too dismiss the appeal.

Irvine J.: I agree with the judgment that has been delivered by Mr. Justice Kelly for the same reasons.

O’Sullivan v. Weisz

[2005] IEHC 74 (18 March 2005)

THE HIGH COURT
Record No. 2004/791p
BETWEEN
JOHN O’SULLIVAN
Plaintiff
and
RONALD STUART WEISZ
Defendant
JUDGMENT delivered by FINNEGAN P. on the 18th day of March 2005.
This is a motion by the defendant seeking the following reliefs –

“(a) Vacating the lis pendens registered by the plaintiff in this action on the 3rd February, 2004 on the grounds that the proceedings had been brought and pursued in bad faith.
(b) The costs of the application.”
The facts giving rise to the present proceedings appear from the Affidavits filed in the matter of which there are four by the Defendant and two by the Plaintiff and the exhibits thereto.

The Plaintiff who is a farmer engaged in a number of transactions in which he borrowed monies. The first of these was with the Wise Finance Company in respect of an advance of IR£100,000 on foot of a commitment letter dated the 11th August, 1997. The actual sum advanced was IR£80,000. The copy of the commitment letter available to me has copied poorly but as I understand the position the deduction of IR£20,000 is accounted for by the deduction of a commitment fee and prepayment of the instalments of IR£2,000 per month for the seventh to twelfth month of the agreement. The loan was secured on three folios, folio 18746, folio 18848 and folio 27377F of the Register County Tipperary. The Plaintiff retained a solicitor in relation to the loan transaction. The Plaintiff failed to make repayment in accordance with the terms of the loan and proceedings for possession were instituted against him. He consulted a different solicitor in relation to these proceedings. On the 24th July, 2000 the defendant obtained an order for possession on consent together with an order for costs but with a stay on those orders for three months. That order remains in place.

Over the months following that judgment the plaintiff made attempts to obtain alternative finance. Early in 2001 he entered into negotiations with one Tony O’Meara which resulted in terms being agreed but not reduced to writing and signed. Under these terms Mr O’Meara was to purchase the lands in folios 18746 and 27377F and 18848 of the Register County Tipperary for the sum of IR£165,000. Further the Plaintiff was given an option to repurchase the lands within thirty days of the date of the contract for IR£195,000 or within three hundred and sixty five days at the price of IR£206,000.

Mr O’Meara did not proceed with the transaction. Mr O’Meara withdrew from the proposed agreement and the defendant was told of this on the 3rd August, 2001. The defendant then told the plaintiff that he personally would be willing to enter into such an agreement with him and this was in fact done on the 8th August 2001. Again the Plaintiff instructed a solicitor in relation to this transaction. The agreement which was signed between the Plaintiff and the defendant differed from that proposed between the plaintiff and Mr O’Meara in that the period for the first option was increased to sixty days. At the expiration of the sixty day period the sale to the defendant was completed by correspondence between solicitors in November and December, 2002.

The Plaintiff then instructed a different solicitor and on the 12th December, 2002 proceedings were instituted by him naming the defendant herein and the Wise Finance Company Limited as Defendants and seeking by way of relief rescission of the agreement for sale between the Plaintiff and the Defendant and an order vacating the High Court order for possession. These proceedings were compromised. At the date of the compromise the Defendant had entered into an agreement to sell two of the folios to a Mr Tighe. The terms of the compromise were that the proceedings should be discontinued and the lis pendens vacated and that the third Folio, Folio 18848 County Tipperary should be sold to the Plaintiff for the sum of €50,000 the sale to be closed within the calendar year 2003 but subject to interest being paid at 1% per month after 31st December, 2003 the sale could be closed up to the 31st December, 2004.

While the compromise was proceeding the Defendant arranged further facilities to be provided to the Plaintiff in the amount of €60,000 secured on lands in Folio 12165 of the Register County Tipperary by a company Secured Property Loans Limited.

It would appear that at all times the Plaintiff was anxious to raise finance elsewhere at a lower rate of interest and discharge his indebtedness but he failed in his endeavours to do so.

The case which the Plaintiff makes in his Statement of Claim can be summarised as follows –

The Defendant is a Director of Wise Finance Company Limited and Secured Property Loans Limited. In 1997 the Plaintiff borrowed IR£100,000 from Wise Finance Company Limited secured by a charge on his lands. He defaulted in repayment and proceedings were instituted against him and in which an Order for possession of the lands charged was obtained on consent on the 24th July 2000. On the 8th August 2001 the Plaintiff entered into an agreement with the Defendant to sell to him the charged lands for IR£165,000 the lands at that time having a value of some IR£500,000 the Plaintiff being given the option to repurchase the lands and which have now expired. Under the terms of the agreement of the 8th August 2001 the Plaintiff was obliged to pay stamp duty, land registry fees, solicitors fees and brokers fees which total IR£13,550: in order to do this he obtained a loan from Secured Property Loans Limited secured on the lands in Folio 12165 of the Register County Tipperary. The Plaintiff then issued the proceedings which were the subject matter of a settlement agreement reached in January 2003.

The Plaintiff claims that the contract of the 8th August 2001 was entered into by him as a result of duress or undue influence of the Defendant or that in the alternative it constituted an unconscionable bargain. Further the settlement entered into in January 2003 was likewise entered into as a result of duress or undue influence and represents an unconscionable bargain. The relief sought accordingly relates to the contract of the 8th August 2001 and the settlement of January 2003. In relation to the Order for possession obtained by Wise Finance Company Limited relief against the same in terms of having it set aside is not sought but the Plaintiff seeks to restrain proceedings on foot of the Order for possession pending the outcome of the present proceedings.

A judgment given or an order made by consent may in a fresh action brought for that purpose be set aside on any ground which would invalidate a compromise not contained in a judgment or order: Weilding v Sanderson (1897) 2 CH 534, Hickman v Berens (1895) 2 CH 638. Thus a compromise may be set aside on the ground that it was illegal as against public policy, or obtained by fraud, or misrepresentation, or non disclosure, or was concluded under a mutual mistake of fact. Specifically a compromise can be set aside on the ground that it was obtained by duress: Cumming v Ince (1847) 11 Q.B. 112. Thus the compromise and the agreement sought to be set aside by the Plaintiff in these proceedings can be set aside on the grounds of duress. Duress can encompass economic duress. A compromise gains no additional status by being embodies in an order or by being made a Rule of Court.

Counsel for the Defendant drew my attention to the decision of the Court of Appeal in Binder v Alachouzos 1972 2 All ER 189 and dicta of Phillimore LJ therein. In that case the Court refused to set aside a compromise of an action which had been freely negotiated between the parties on the advice of experienced Counsel and solicitors on both sides. Phillimore J. stated that the Court ought to be very slow to look behind an agreement reached in such circumstances. However I am satisfied that this dicta relates to the attitude which the Court should adopt on an action taken to set aside a compromise but falls far short of saying that the Court ought never set aside such a compromise.

I do not propose to comment on the strength of the Plaintiff’s case as I do not consider that to be relevant on the present application. However I am satisfied that the Plaintiff’s case as pleaded is one that could succeed. In these circumstances it ought not to be struck out as an abuse of process as being a case disclosing no reasonable cause of action.

In the ordinary course to compromise proceedings and then instituted fresh proceedings seeking substantially the same relief or in the alternative raising matters which ought properly to have been raised in the compromise proceedings could lead to a successful application to strike out the proceedings as an abuse of process. In this regard see Carroll v Law Society of Ireland Unreported Kelly J. In this case however the Plaintiff contends that the compromise was procured by duress, undue influence or in the alternative represents an unconscionable bargain and to this extent there remains the possibility that the compromise will be set aside. In these circumstances the present case can be distinguished from Carroll v Law Society of Ireland and I am satisfied that it would be inappropriate to strike out these proceedings as an abuse of process.

Finally I have been informed by Counsel that there is pending before the Master a motion to add further parties to these proceedings namely the Wise Finance Company Limited, Secured Property Loans Limited, Home Funding Corporation Limited and also the purchasers from the present Defendant of two of the Folios in issue between the Plaintiff and the Defendant. This Motion stands adjourned before the Master pending determination of this application. That Motion should be re-entered before the Master as quickly as possible so that these proceedings can be progressed. It is in the interest neither of the Plaintiff nor the Defendant that there should be further delay. To ensure that these proceedings are determined as promptly as possible I propose assigning a Judge to case manage the same to whom all applications in the matter hereafter shall be made.

*Delivered the 2nd May 2001. Counsels’ Note.

Approved:

Finnegan P.

Murphy v J Donohoe Limited

James Murphy (a Minor) suing by his mother and next friend Margaret Murphy and Lena Marie Murphy (a Minor) suing by her next friend Margaret Murphy v J. Donohoe Ltd, Fiat Auto (Ireland) Ltd, Protectacar Contract Servicing Ltd and James Murphy
1991 Nos. 207 & 208

Supreme Court

11 March 1992

[1992] I.L.R.M. 378
(Finlay CJ, Hederman, McCarthy, O’Flaherty and Egan JJ)

FINLAY CJ

(Hederman J concurring) delivered his judgment on 11 March 1992 saying: These are two appeals in two actions for damages for personal injuries in which identical points on an appeal from the decision of a preliminary issue arise in each case, and both were heard together in the High Court and in this Court.

The facts
On 23 June 1988 the two infant plaintiffs, who are brother and sister, were in a  motor car the property of their father, who is the fourth named defendant, when it went on fire and they received, we are informed, extensive burning.

In the statements of claim filed in the two cases it was alleged that the car had been purchased from the first-named defendants and had subsequently been serviced by them, that it had been distributed by the second-named defendants in Ireland, as it was a Fiat motor car, and a claim was made that the third-named defendant had provided parts which were inserted in the car and which may have been involved in the fire. The fourth-named defendant was not only the owner of the car but had also, from time to time, carried out work in connection with some of the electrical installations in the car.

Apparently, a claim was notified against each of these four defendants, and some time prior to 18 October 1989 a settlement of the claim as between the fourth-named defendant and the infant plaintiffs was agreed subject to the approval of the court, as a result of which the indemnifiers of the fourth-named defendant would pay into court to the credit of both the actions a sum of £815,000 in full discharge of his liability to the infant plaintiffs. It is stated that it was a term of that settlement that the infant plaintiffs would issue proceedings which had not yet been issued against all four defendants and should prosecute them expeditiously. Proceedings were then instituted by plenary summons of 18 October 1989 and application was made to Hamilton P in the High Court for approval of the settlement. It would appear that no written agreement or consent of settlement was entered into between the parties and there does not appear to have been any affidavit filed for the purpose of ruling the settlement, nor was any evidence given to the learned President. He was afforded an opportunity to read medical reports, and was apparently informed by counsel as to the nature of the settlement which was being ruled. As a result, on 21 February 1990 the learned President made an order in each of the two cases which having recited that a settlement had been reached by the parties in the action, directed as follows:

The court doth approve of the settlement and by consent it is ordered and adjudged that the plaintiff do recover against the fourth defendant the sum of £407,500 and costs of this action when taxed and ascertained. And it is ordered

(1) that the fourth defendant do forthwith pay into court to the credit of this action and separate credit of the said infant the said sum of £407,500

(2) that out of the money in court the sum of £7,500 be paid to the solicitors for the plaintiff, they having undertaken to expend that sum as follows:

£2,500 special damages

£5,000 to be paid to the parents of the said infant to be applied to the benefit of the said infant

(3) that the balance of the funds in court be invested on interest bearing deposit until further order

(4) that the said plaintiff be made a ward of court and that the said Margaret Murphy and James Murphy (parents of the plaintiff) be appointed guardians of the fortune of the said infant plaintiff.

Pursuant to that order and direction the sum of £407,500 was paid into court to the separate credit of each of the two actions on behalf of the fourth-named defendant, James Murphy.

It is agreed that none of the other defendants were informed of the making of this settlement, either before it was reached or after it was reached, and were not present upon the moving of the application for approval by the learned President of the settlement.

Statements of claim were filed against the defendants, including the fourth-named defendant, after the date on which this order was made by the learned President, but contained no reference to the making of any settlement between the infant plaintiffs and the fourth-named defendant. Subsequently, it would appear that the second-named defendant at least became aware of the making of the settlement and a defence was delivered on behalf of that defendant on 6 November 1990, raising at paragraph 9 thereof, after a full denial of liability on the issues of negligence and damages, the following paragraph:

Further, or in the alternative, by reason of a settlement entered into between the plaintiff and the fourth-named defendant, approved by court order, the second-named defendant has been discharged from liability in respect of this claim pursuant to the provisions of ss. 16 and 17 of the Civil Liability Act 1961, and the plaintiff is not therefore entitled to maintain this action against the second-named defendant.

Contemporaneously with that defence, claims for contribution were made on behalf of the second-named defendant and previously other claims for contributions amongst the defendants had been made in the action.

It would appear that the matter then came before the learned President of the High Court on 13 November 1990. Again, it does not appear that there was any formal notice for the trial of an issue preliminary to any other trial in the action, but apparently with the consent of all parties who were present and represented, there was heard the issues arising from the defence filed by the second-named defendant, in respect of which the first-named defendant sought also to participate and to have a declaration made to the same effect, though no actual amendment of its defence had been made. The matter was apparently heard without any evidence, either in the form of affidavit or oral evidence, but on submissions only, and was completed on 13 November 1990. The learned President reserved his judgment and then delivered a reserved judgment on 20 November 1990. On that date he made an order in the following terms:

The application of counsel for the second defendants for a declaration that the monies paid into court herein to the credit of the plaintiffs by the fourth defendant pursuant to order herein dated 21 February 1990 amounts to satisfaction in accordance with s. 16(1) of the Civil Liability Act 1961 coming before the court on 13 November 1990.

And on hearing said counsel and counsel for the first and fourth defendants and counsel for the plaintiffs.

The court doth reserve its decision herein to 20 November 1991 [sic] recte 1990 And the same coming on accordingly for judgment on this day

It is ordered that the said application be refused.

And it is ordered that the second defendant do pay to the plaintiff and the fourth defendant their respective costs of this application and order when taxed.

In the course of that judgment the learned President stated as follows:

On 21 February 1990, I, in the interests of the unfortunate infant plaintiffs herein, approved of an arrangement which had been entered into by counsel on behalf of the plaintiffs and by counsel on behalf of the fourth named defendant, whereby in consideration of the mother and next friend of the infant plaintiffs proceeding with the action against all the defendants in these proceedings, the fourth named defendant would pay into court for the benefit of the said infants a total of £815,000. I consider the fair apportionment, having regard to the nature and extent of the injuries sustained by the infant plaintiffs, to be £407,500 each.

I was informed by counsel of and accepted the nature of the agreement, and was satisfied that it was in the best interests of the plaintiffs. They would have the immediate benefit of the interest on the investment of the said funds and would not have to await the outcome of the proceedings instituted on their behalf and which the next friend agreed to continue as a condition of the arrangement.

The order perfected on 21 February 1990, through no fault of the registrar, does not refer to this aspect of the agreement. This was not, as described by counsel for the second named defendant, a cosy arrangement between the plaintiffs and the fourth named defendant, but was what I have already described as a humane and enlightened approach in the best interests of the unfortunate infant plaintiffs. It was an arrangement that clearly did not indicate an intention either on the part of the plaintiffs or on the part of the fourth named defendant to discharge the other defendants, as the payment into court of the said amount was conditional on the next friend of the infant plaintiffs proceeding against all the defendants in these proceedings. Such payment, in my opinion, does not amount to satisfaction in accordance with the terms of s. 16(1) of the Civil Liability Act 1961 or as defined by subs. (2) thereof.

It is not a payment after judgment, was not made by way of accord and satisfaction or any substitution therefor, but was made pursuant to the arrangement which I have outlined herewith and consequently I will refuse the application made on behalf of the second named defendant and by the first named defendant (though not pleaded by him in his defence) that the payment into court amounted to a discharge of the other defendants in these proceedings.

It is against that judgment and order that the appeal before this Court relates. Although the application is stated to be the application of the second-named defendant only, it was agreed by counsel for all the parties concerned that the first-named defendant was so closely associated with it that it should have a right of appeal, and we heard submissions by both these defendants. Counsel on behalf of the third-named defendant has informed us that he takes no particular attitude towards the issue thus arising, and would abide by any decision of this Court. The fourth-named defendant supported the plaintiffs’ contention that the decision of the learned President was correct and that having regard to that decision the plaintiffs are now entitled to prosecute the entire actions, both with regard to assessment of damages and liability against all four defendants as if no judgment had been entered against the fourth-named defendant but subject to the condition that if as a result of such proceedings either of the plaintiffs was awarded any figure greater than £407,500 against the fourth-named defendant that they cannot, by reason of the judgment and settlement already reached, recover any such excess. Upon the matter first coming before this Court, the court was satisfied that it had inadequate information with regard to the factual position arising in the case so as to permit it to adjudicate on the issues which had arisen and, accordingly, made an order on 17 July 1991, in the following terms:

1. That the second-named defendant be at liberty to adduce further evidence on affidavit of any communications to that defendant by any other parties or statements by those parties in court as to their construction of the effect of the settlement.

2. That the plaintiffs be at liberty to file an affidavit as to the terms on which the settlement was placed before the court on 21 February 1990 (not including any obligation to reveal counsel’s opinion).

3. The fourth-named defendant be at liberty but not under any obligation to file an affidavit as to his understanding of the settlement.

As a result of these orders the second-named defendant filed an affidavit of Boyce Shubotham, solicitor, acting on its behalf, in which he stated as follows:

(a) That he had been informed by counsel acting on his behalf and believed that on an application being brought by the first-named defendant to join the next friend of the infant plaintiffs as a third party to the proceedings which was heard by Blayney J on 23 July 1990, that counsel on behalf of the plaintiffs stated as a result of an inquiry from the learned trial judge that in his view the plaintiffs were technically entitled to recover from the other defendants more than the amount lodged by the fourth-named defendant. On being pressed, however, he acknowledged that in reality the approval by Hamilton P of the settlements between the plaintiff and the fourth-named defendant meant that quantum in these cases was no longer a live issue and that the only matter that the defendants would be obliged to address at the trial was that of liability inter se.

Secondly, the affidavit deposed to the fact that at the hearing of the issue on 13 November 1990 with regard to the declaration under the sections of the Civil Liability Act 1961 that he (the deponent) was present, and states as follows:

I recall that on that occasion senior counsel for the plaintiff, Mr Liam Reidy, stated that the only reason for the plaintiffs maintaining their action against the defendants was because they were obliged to do so under the terms of the settlement approved by the learned President.

On behalf of the plaintiff an affidavit was filed by Gerald Meaney, solicitor, acting for them, in which at paragraph 3 he set out the terms of the settlement which he states was negotiated by his counsel between the infant plaintiffs and the fourth-named defendant, and they are:

(a) That the fourth-named defendant should pay to the plaintiffs a total sum of £815,000.

(b) That this payment was conditional upon the approval of the High Court.

(c) That it was a condition precedent to the payment that the plaintiffs should proceed against all four defendants (including the fourth-named defendant) proceedings to be instituted and that these proceedings would be prosecuted expeditiously. The fourth defendant was to indemnify the plaintiff in respect of the costs incurred in these proceedings if necessary.

(d) The payment of the fourth-named defendant would be made without admission of liability.

(e) Even if the plaintiffs should not succeed against any of the defendants including the fourth-named defendant, the payment made by the fourth-named defendant would stand and would not be drawn back by the fourth-named defendant under those circumstances.

(f) In the event of the plaintiff succeeding in full or in part against any of the other defendants, the fourth-named defendant would be entitled to credit up to a total of £815,000 in respect of any monies received from any of the other defendants in such circumstances.

(g) In any event the fourth-named defendant’s liability would not exceed £815,000 under any circumstances.

The affidavit does not exhibit any documents by way of letters or written agreement leading to this settlement. At paragraph 6 of the same affidavit Mr Meaney deposes to the submissions made by counsel on behalf of the plaintiffs to the court on the trial of the preliminary issue, and they are:

(1) That the settlement being conditional upon the fulfilment of the conditions precedent mentioned above had not as yet been fully implemented and therefore was not conclusive. In those circumstances it was argued that it could not be regarded as being a final settlement until the condition precedent had been fulfilled.

(2) One way or the other it was necessary for the plaintiffs to proceed against all the defendants to establish that it was reasonable to pursue them in order to resist applications for costs that were made by the other defendants.

The fourth-named defendant did not avail of the opportunity afforded by the order of the Supreme Court to file any affidavit dealing with his understanding of the settlement.

Relevant provisions of the Civil Liability Act 1961
S. 16 of the Civil Liability Act 1961 reads as follows:

16

(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others, whether such others have been sued to judgment or not.

(2) Satisfaction means payment of damages whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.

(3) If the payment is of damages it must be of the full damages agreed by the injured person or adjudged by the court as the damages due to him in respect of the wrong; otherwise it shall operate only as a partial satisfaction.

17
(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.

(2) If no such intention is indicated by such release or accord the other wrongdoers shall not be discharged, but the injured person shall be indemnified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with s. 35(1)(h), and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff’s total claim had been paid by the other wrongdoers, whichever of these three amounts is the greatest.

S. 35(1)(h) reads as follows:

Where the plaintiff’s damage was caused by concurrrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged.

Submissions on behalf of the first and second-named defendants
On behalf of these defendants it was firstly contended that the result of the agreement made between the plaintiff and the fourth-named defendant and the application to the court on 21 February, together with the judgment entered by consent thereon was that the fourth-named defendant had paid damages after judgment by way of satisfaction pursuant to the provisions of s. 16 of the Act of 1961, and that those were the full damages agreed by the injured parties through their next friend and, with the approval of the court, as the damages due to them in respect of the wrong and that accordingly it was an absolute discharge of these two defendants from any claim on behalf of the plaintiff. It was, of course, made clear by these two defendants that they accepted that they still had a liability to face any claim which the fourth-named defendant could make against them for contribution to the damages which he had paid to the infant plaintiffs.

In the alternative, it was submitted on behalf of these defendants that if the court should conclude that the payment of damages was partial satisfaction only as defined in s. 16(3) that they constituted necessarily a complete discharge of the fourth-named defendant from the proceedings, as far as the infant plaintiffs were concerned, it being impossible to pursue him for damages for personal injuries in a case in which judgment had been entered against him and in which the unambiguous terms of such judgment and the agreement which is alleged to have preceded it were, that he could never be liable for any further payment of damages to the plaintiff. Secondly, it was then submitted that whilst, of course, the fourth-named defendant could remain as a claimant for contribution in the proceedings brought by the infant plaintiffs and as the respondent to a claim for contribution by the other defendants in those proceedings, that in such proceedings the infant plaintiffs became subject to the provisions of s. 17(2). In so far as the learned President’s judgment clearly directs the maintenance of the proceedings against all four defendants, notwithstanding the settlement and order made, these defendants submit that it was incorrect in law and must be set aside.

The contention on the part of these defendants that the satisfaction was a total and not a partial satisfaction under the provisions of the Act of 1961 was based upon the following contentions:

(a) That it is quite clear from a perusal of the entire of the judgment delivered by the learned President of the High Court on 20 November 1990 that he did not make any mention of the possible right of the infant plaintiffs to recover a greater sum of damages as being a reason why he would not discharge the three defendants from the action. Had that been the position, namely, that there was a partial satisfaction only it is contended that it would be the primary reason set forth as fundamental and leading to a dismiss of the application for a discharge of the three defendants out of the action. But it is clear, it is said, from the learned President’s judgment that it did not form part of the reasons why he so decided.

(b) They rely on paragraph 6 of the affidavit of Mr Meaney as indicating that the right of the infant plaintiffs to obtain a further sum of damages from any of the defendants was not one of the submissions made on their behalf on the hearing of this issue.

(c) They rely on submissions alleged in the affidavit of Mr Shubotham to have been made by counsel for the plaintiffs which have not been contradicted.

The respondents’ submissions
The respondents submitted on this appeal as follows:

1. The fact that as part of the terms leading to the order made by the learned President of the High Court on 21 February 1990, the plaintiff was under an obligation to continue the action against all four defendants, including the fourth-named defendant who was paying money into court in pursuance of that order means that the judgment entered by the court on that day must be construed as being other than a judgment within the meaning of that word contained in ss. 16 and 17 of the Civil Liability Act 1961, and that therefore the payment by the fourth-named defendant into court of the sum of £815,000, even though it constitutes a bar towards the recovery by the plaintiffs of any sum in excess of that figure against this particular defendant does not represent either a total or partial satisfaction of the obligation of the fourth defendant to the plaintiffs arising out of the wrong, and accordingly the order of the learned President directing the continuation of the action against all four defendants is the correct order.

2. In the alternative, it is submitted that if the payment of this money into court is to be deemed to be a satisfaction after judgment, it is a satisfaction of a partial nature only, within the meaning of s. 16(3). In this regard reliance is placed on the terms of the settlement as contained in the affidavit of Mr Meaney as indicating that the possibility or probability was envisaged of the infant plaintiffs obtaining greater damages and, in particular, that one of the consequences provided for in those terms of giving credit to this fourth-named defendant for sums received by the plaintiffs over and above £815,000 is indicative of a partial satisfaction only.

3. The respondents also rely on the terms of the judgment of the learned President as indicating an expectation of the possibility of further damages.

 

Decision
I have considered these submissions and I have come to the following conclusions. I am satisfied that the order made by the learned President of the High Court on 21 February 1990 entering judgment by consent in favour, in each case, of the infant plaintiff against the fourth-named defendant in the sum of £407,500 is conclusively inconsistent with a situation in which any claim brought by the plaintiffs against this defendant arising out of the accident which occurred to them can be continued. Even if one assumes, as is implied in the judgment of the learned President that there was a slip, or error, which failed to reveal in this order entering judgment by consent the other terms of the agreement which it is stated by Mr Meaney took place between the plaintiffs’ advisers and the fourth-named defendant’s advisers, it seems to me that that provision contained in those terms limiting the liability of the fourth-named defendant in any event to the two plaintiffs to a sum of £815,000 is quite inconsistent with the continued action being brought against him by the plaintiff in which, ostensibly, the court would be entitled to assess damages at a greater figure than that, and to make an award or decree for them against the defendant.

That conclusion leads to a conclusion that the order made on 21 February 1990 and the payment on behalf of the fourth-named defendant of the sum of £407,500 in each of these two cases into court, in compliance with that order, and the directions contained therein, must constitute a satisfaction after judgment within the meaning of ss. 16 and 17 of the Civil Liability Act 1961.

The next issue which, therefore, arises is as to whether that satisfaction must be taken to be a satisfaction which in the terms of s. 16(3) is of the full damages agreed by the injured party as the damages due to him in respect of the wrong, or whether it must be deemed to be to operate only as a partial satisfaction.

I am impressed by the case made on behalf of the defendants/appellants to the effect that there is no mention of any description in the judgment of the learned President, of 20 November 1990, of the infant plaintiffs’ right to the possibility or chance of further damages. I am equally impressed by the statement contained at para. 6 in the affidavit of Mr Meaney as to what was submitted on behalf of the infant plaintiffs to the learned President on that occasion with regard to the issue then raised.

If in reality the position was that each of these infant plaintiffs was entitled, having regard to the terms of the settlement with the fourth-named defendant to a substantial chance which could be of very considerable benefit to them of obtaining more damages than £407,500, one would have expected that that would be the first and most fundamental point made before the President on the issue arising in November 1990, and that any question of either being obliged under the terms of the settlement to proceed with the action or, even more so, any attempt to protect the infant plaintiffs against a potential order for costs by one or other of the defendants would be of very, very little significance compared to the chance of obtaining an increase in damages.

However, having carefully considered the matter, I am satisfied that the trial of the issue before the learned President in November 1990 was, in a sense, unsatisfactory. It does not appear that the issues between the parties were ever set out in any form of order, be it by consent or under direction of the court, and, in particular, a position was reached in which three of the defendants having no knowledge of the particular transaction leading to the making of the order of 21 February 1990 did not, apparently, have any evidence produced, either by the plaintiffs, by the fourth-named defendant or by either of them, concerning what were the terms of the agreement and how it was to be interpreted.

In these circumstances, having come to the conclusion that the decision reached by the learned President cannot be upheld in law, and having regard to the extreme importance of the question as to whether the infant plaintiffs are entitled to proceed on with their action against the other three defendants in the hope, or expectation, of obtaining greater damages than the sum of £407,500, I am satisfied that there should be a re-trial of the issue arising from the settlement reached between the plaintiffs and the fourth-named defendant in the High Court.

In my view, having regard to the legal situation which prevents a continuation of any action by the plaintiffs against the fourth defendant after the judgment of 21 February 1990 and the payments made pursuant to it, the only remaining issue to be determined is whether the judgment entered in each case on 21 February 1990, and the payment into court on behalf of the fourth-named defendant of the sum of £407,500 in each case pursuant to the direction contained in that judgment constituted a satisfaction of the full damages agreed by or on behalf of the infant plaintiffs, as the damages due to them in respect of the wrong or whether, on the other hand, it operated as a partial satisfaction only. The trial of this issue should in my view be on oral evidence, the second defendant to have carriage.

If the decision on that issue is to the effect that the judgment operated as a partial satisfaction only, then, having regard to the consequences arising from such a finding which would be that the plaintiffs would, if they decided so to do, have to continue the proceedings subject to the provisions contained in s. 17(2), and be identified with the contributory negligence on the part of the fourth-named defendant and with the amount they had already received, it would appear to me necessary, since this matter does not appear to have been raised before the President at the time of the ruling of the settlement, that there should be an application in the wardship matter in respect of each of the infant plaintiffs individually as to whether, if that be the decision on the issue, they should continue with the actions on those terms.

I would therefore allow the appeal.

 

McCARTHY J:

The plaintiffs are the under age children of Margaret Murphy and of James Murphy, the fourth defendant, (‘the father’). The first defendant (‘Donohoe’) sold a Fiat motor car to the father in November 1987 and subsequently carried out work to the car, as also did the father. The second defendant (‘Fiat’) were and are the importers of Fiat motor cars; it is specifically alleged against Fiat that they caused or permitted the electrical components of the motor car and the heater switch to be in a seriously defective condition and that they failed to call in for inspection any Fiat cars which they knew or ought to have known on the basis of previous car fires to be potential fire hazards. The third defendant (‘Protectacar’) provided a policy of insurance to the father in respect of the motor car. On 23 June 1988, whilst the two plaintiffs, then aged three and two years, were in the car it went on fire and they sustained what are described as horrendous injuries. Each of the defendants has denied liability and each has served the appropriate notice claiming indemnity and/or contribution from the other defendants.

No evidence has as yet been heard and my summary of the facts derived from the pleadings and replies to notices, is unproven but assumed to be true for the purpose of these appeals.

The settlement
The father is apparently indemnified by new PMPA, which company negotiated a settlement with the plaintiffs’ lawyers at some time prior to 18 October 1989, which is the date of issue of the plenary summons in each case. That settlement is identified by Gerald Meaney, the solicitor for the plaintiffs, in an affidavit sworn on 2 October 1991, after this matter had been before this Court (Finlay CJ, Hederman and Egan JJ) on 17 July 1991, when the court gave liberty to the parties to file affidavits.

The terms of the settlement were identified as follows:

(a) That the fourth named defendant would pay to the plaintiffs a total sum of £815,000.

(b) That this payment was conditional upon the approval of the High Court.

(c) That it was a condition precedent to the payment that the plaintiffs should proceed against all four defendants (including the fourth named defendant) proceedings to be instituted and that these proceedings would be prosecuted expeditiously. The fourth defendant was to indemnify the plaintiff in respect of the costs incurred in these proceedings if necessary.

(d) The payment of the fourth named defendant would be made without admission of liability.

(e) Even if the plaintiffs should not succeed against any of the defendants including the fourth named defendant, the payment made by the fourth named defendant would stand and would not be drawn back by the fourth named defendant under those circumstances.

(f) In the event of the plaintiff succeeding in full or in part against any of the other defendants, the fourth named defendant would be entitled to credit up to a total of £815,000 in respect of any monies received from any of the other defendants in such circumstances.

(g) In any event the fourth named defendant’s liability would not exceed £815,000 under any circumstances.

The proceedings were issued and application to approve the settlement was made in the High Court (the President) on 21 February 1990. The order drawn in each case, later stated to be incorrect, provided ‘the court doth approve of the settlement and by consent it is ordered and adjudged that the plaintiff do recover against the fourth defendant the sum of £407,500 and costs of this action when taxed and ascertained’, and went on to provide for payment into court to the credit of each infant and payment out of a total sum of £7,500. The monies were forthwith paid into court.

The actions proceeded against all four defendants; a statement of claim was filed on 16 March 1990; particulars were sought and defences filed. Donohoe merely traversed the allegations made as did the father; Fiat, whilst traversing the allegations, pleaded:

(9) Further, or in the alternative, by reason of a settlement entered into between the plaintiff and the fourth named defendant approved by court order, the second named defendant has been discharged from liability in respect of this claim pursuant to the provisions of ss. 16 and 17 of the Civil Liability Act 1961, and the plaintiff is not, therefore, entitled to maintain this action against the second named defendant.

This defence was delivered on 6 November 1990, that of Donohoe on 9 May 1990. The court has been informed that the matter was mentioned to the learned President when counsel for Fiat applied orally for a declaration that the monies paid into court to the credit of the plaintiffs by the fourth defendant pursuant to order dated 21 February 1990 amounts to satisfaction in accordance with s. 16(1) of the Civil Liability Act 1961, the matter being heard on 13 November 1990 when the first and fourth defendants and the plaintiffs were represented. The learned President refused the application, which he permitted to be made also on behalf of Fiat, although the issue had not been raised in pleading.

The learned President cited s. 16 of the 1961 Act and referred to s. 17 and s. 35(1)(h). He went on:

I was informed by counsel of and accepted the nature of the agreement, and was satisfied that it was in the best interests of the plaintiffs. They would have the immediate benefit of the interest on the investment of the said funds and would not have to await the outcome of the proceedings instituted on their behalf and which the next friend agreed to continue as a condition of the arrangement. The order perfected on 21 February 1990 through no fault of the registrar does not refer to this aspect of the agreement. This was not, as described by counsel for the second named defendant, a cosy arrangement between the plaintiffs and the fourth named defendant, but was what I have already described as a humane and enlightened approach in the best interests of the unfortunate infant plaintiffs. It was an arrangement that clearly did not indicate an intention either on the part of the plaintiffs or on the part of the fourth named defendant to discharge the other defendants, as the payment into court of the said amount was conditional on the next friend of the infant plaintiffs proceeding against all the defendants in these proceedings. Such a payment, in my opinion, does not amount to satisfaction in accordance with the terms of s. 16(1) of the Civil Liability Act 1961 or as defined by subs. (2) thereof. It is not a payment after judgment, was not made by way of accord and satisfaction or any substitution therefor, but was made pursuant to the arrangement which I have outlined herewith and consequently I will refuse the application made on behalf of the second named defendant and by the first named defendant (though not pleaded by him in his defence) that the payment into court amounted to a discharge of the other defendants in these proceedings.

Save for the passing reference to s. 17, the judgment does not reflect that the application of s. 17 was seriously argued.

Donohoe appealed on the grounds that the learned President was wrong in law in holding that the plaintiff had not been satisfied by means of payment of damages in accordance with the provisions of s. 16 and in holding that the plaintiffs had not received satisfaction by means of accord and was, therefore, wrong in law in holding that the first named defendant was not discharged. Fiat appealed, the grounds being in somewhat more detail but amounting to the same allegation and, in particular, referring to s. 16. Neither notice of appeal made any reference to s. 17 of the Act of 1961.

One further aspect of the settlement and what ensued is the factual question of what was said by counsel for the plaintiffs on 21 February; some evidence in this regard was given in an affidavit by Fiat’s solicitor filed subsequent to the first order of this Court. Since there is no official record of what transpired on 21 February no more than there is in respect of the hearing on 13 November, 1990, I do not express any factual conclusion as to these hearings.

The Act
S. 16 provides:

(1) Where damage is suffered by any person as a result of concurrent wrongs, satisfaction by any wrongdoer shall discharge the others whether such others have been sued to judgment or not.

(2) Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.

(3) If the payment is of damages, it must be of the full damages agreed by the injured person or adjudged by the court as the damages due to him in respect of the wrong; otherwise it shall operate only as partial satisfaction.

(4) An injured person who has accepted satisfaction from one alleged to be a wrongdoer, whether under a judgment or otherwise, shall, in any subsequent proceeding against another wrongdoer in respect of the same damage, be estopped from denying that the person who made the satisfaction was liable to him; and the liability of such person shall be conclusively assumed for the purpose of the said proceeding: but the injured person may litigate in the said proceeding any question of law or fact relative to the liability of the defendant to such proceeding, other than the question whether or not the said satisfaction was made by one liable to the injured person.

S. 17 provides:

(1) The release of, or accord with, one concurrent wrongdoer shall discharge the others if such release or accord indicates an intention that the others are to be discharged.

(2) If no such intention is indicated by such release or accord, the other wrongdoers shall not be discharged but the injured person shall be identified with the person with whom the release or accord is made in any action against the other wrongdoers in accordance with s. 35(1)(h); and in any such action the claim against the other wrongdoers shall be reduced in the amount of the consideration paid for the release or accord, or in any amount by which the release or accord provides that the total claim shall be reduced, or to the extent that the wrongdoer with whom the release or accord was made would have been liable to contribute if the plaintiff’s total claim had been paid by the other wrongdoers, whichever of those three amounts is the greatest.

(3) For the purpose of this Part, the taking of money out of court that has been paid in by a defendant shall be deemed to be an accord and satisfaction with him.

S. 35 provides:

(1) For the purpose of determining contributory negligence—…

(h) where the plaintiff’s damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged.

 

On its face the order of 21 February 1990 is a judgment for the sum of £407,500 and payment of that sum, by way of payment into court, would constitute a satisfaction within the meaning of s. 16(2). The payment is of the full damages adjudged by the court as the damages due to him in respect of the wrong, or within the meaning of subs. 3, if one reads the word ‘adjudged’ as meaning the sum for which judgment was given and not as a measure of the full value having been assessed by the court. It is beyond question that the approval of the court followed by the payment discharges the father from any liability to the plaintiffs greater than the total sum of £815,000. I do not overlook although I disregard the possibility that the award to one of the plaintiffs might be less than £407,500 and what might follow from that.

Donohoe and Fiat initially argued, as Fiat pleaded, that the judgment followed by payment into court constituted a total discharge. The judgment of the learned President does not refer to s. 22 of the 1961 Act which provides:

(1) Where the claimant has settled with the injured person in such a way as to bar the injured person’s claim against the other concurrent wrongdoers, the claimant may recover contribution in the same way as if he had suffered judgment for damages, if he satisfies the court that the amount of the settlement was reasonable; and, if the court finds that the amount of the settlement was excessive, it may fix the amount at which the claim should have been settled.

It would appear from this section, enabling the father to sue the other three defendants for contribution, applying s. 17(2) and s. 35(1)(h), that the claim against the first three defendants would be reduced in the amount of the judgment for each plaintiff. There is, however, no indication that this aspect was explored in the High Court.

Ss. 16, 17, 22 and 35 are all virtually verbatim with the suggested codifying and amending measure proposed by Professor Glanville Williams in his textbook — Joint Torts and Contributory Negligence . Understandably, the wording of the sections is not, perhaps, as it would have been if drafted from the start by a parliamentary draftsman. S. 16 is probably declaratory of the common law which, it is believed, held that there was no contribution between joint tortfeasors (see Merryweather v Nixan (1799) 8 TR 186). In any event, the learned President has expressly held that there was no intention on the part of the plaintiffs or the father to discharge the other defendants ‘as the payment into court of the said amount was conditional on the next friend of the infant plaintiffs proceeding against all the defendants in these proceedings.’ The appellant defendants contend that this construction was wrong. If it was, then the settlement could not have been properly approved and, therefore, did not constitute satisfaction; nor did it do so, if the learned President was correct in his construction. It follows that I would dismiss the appeal insofar as it claims that the plaintiff has discharged the first three defendants from the plaintiffs’ pursuit of the claim against them without limitation in amount. As to the fourth defendant, the father, no argument has been advanced on his behalf that he is discharged from suit nor has any such matter been raised in his defence. I would, accordingly, make no rule on that aspect. On the hearing of the appeal, it was argued for Donohoe that the father would have some advantage in contribution proceedings, which would, presumably, be tried along with the main action, in that the plaintiff had undertaken to call all the evidence and thus counsel for the father would be able to cross-examine his own witnesses, including the father. I reject such an argument which implies that justice may depend upon forensic manoeuvring of this kind. One might have had to recognise a practical force in such an argument in the days when actions of this kind were tried before juries; such a proposition is now quite unacceptable. It was the only argument on the merits identified by counsel for Donohoe when enquiry was made during the hearing of this appeal.

I do not overlook the application of s. 17 of the Act; I am content to say that it will be a matter for the trial judge, if and when s. 17 is properly pleaded or pleaded at all, to rule upon its application. In the result, I would dismiss the appeal but I would wish to add some observations concerning the manner in which this case has been brought before the courts.

There is nothing wrong or inappropriate in settling an action on behalf of a person under disability before the issue of proceedings and then issuing such proceedings in order to bring the matter before the court for ruling; there is nothing improper in arriving at a settlement on the maximum amount of contribution to a plaintiff by one of a number of defendants; it might well be improper to conceal that event from the other defendants. Where, however, a settlement has been effected, there should be some permanent record of the material that was brought before the court so that a ruling might be made on the settlement. Where an action is to be tried, important issues should only be determined upon pleadings raising those issues, as amended or not. Where such an issue arises, it is most desirable that its nature be formally identified and that it be tried upon appropriate admissible evidence, including, if necessary, discovery of documents and other procedures.

In simple terms, the father’s insurance company, no doubt with the ulterior motive of capping their own liability to the plaintiffs, sought to maintain the playing field with the goalposts in their customary position. The first and second defendants sought to take advantage of that so to place the goalposts to prevent the plaintiffs from scoring any further. The President would not countenance it; neither will I.

O’FLAHERTY J:

I agree with the analysis of the legal issues involved in this case in the judgment that Egan J is about to deliver and I join with him in the conclusion that he has reached.

EGAN J:

The facts and the background to this case are fully set out in the judgment of the Chief Justice. The relevant provisions of the Civil Liability Act 1961, are also referred to therein.

In my opinion the nub of the case is whether or not s. 16 of the Act applies to this case. Subs. (2) of the section provides as follows:

Satisfaction means payment of damages, whether after judgment or by way of accord and satisfaction, or the rendering of any agreed substitution therefor.

Payment was undoubtedly made in this case (£407,500 each to the credit of the infant plaintiffs). Consideration must be given as to whether the payments amount to ‘satisfaction’ and this gives rise to two alternative problems:

(a) were the payments made ‘after judgment’?, or,

(b) were they made by way of accord and satisfaction?

It is perhaps unfortunate that the word ‘satisfaction’ is used as part of the definition of the same word but I have come to the conclusion that it does not matter in the present case.

(a) ‘After judgment’
It is argued that the order of the learned President dated 21 February 1990 constituted a ‘judgment’ within the meaning of the subsection. Can it be said that the words ‘order’ and ‘judgment’ are always synonymous? It is interesting to note that the dispute in this case came before the President on 13 November 1990 and he reserved his decision until 20 November 1990 on which date he delivered a ‘judgment’ and made an ‘order’.

I am not satisfied that the order dated 21 February 1990 constituted a judgment and I hope that I am not ‘begging the question’ when I say that it is abundantly and specifically clear from the judgment of the learned President dated 20 November 1990 that he himself did not consider that he had delivered a judgment on 21 February 1990. He simply approved of a tentative arrangement and made an order consequent on such approval.

(b) ‘Accord and satisfaction’
The word ‘accord’ (unlike the word ‘satisfaction’) is not defined by the Act but in general and, more particularly in so far as the law of tort is concerned, has been defined as an agreement that is a release in all respects except that it is not under seal. If, however, the accord contains an express reservation of rights against the other joint tortfeasors, these rights will not be defeated (see Duck v Mayeu [1892] 2 QB 511).

Not alone was there an express reservation of rights against the other joint tortfeasors in the present case, there was a positive obligation that they should be pursued in litigation. This positive obligation is in total contradiction with any claim that the other joint tortfeasors should be discharged. The subsequent payment of the money into court did not, in my opinion, alter the consequences of such contradiction. There was no ‘accord and satisfaction’.

Two consequential matters require to be dealt with:

(a) Should the action proceed against all the defendants, including the defendant who made the payment? Notwithstanding that the limit of his liability has already been determined as between himself and the infant plaintiffs, I think that the agreement must be honoured. It is important having regard to the rights of the defendants inter se. Even if the ultimate findings of the court are in some way incompatible with the agreement, there should be no insurmountable difficulty about the making of an ‘order’ which will give recognition to the agreement.

(b) Should there be a limit to the amount of damages recoverable by the plaintiffs in the action? I think it necessarily follows that there should be no such limitation. The agreement did not provide for any limitation and it seems inferentially clear from the effective content of his final judgment that the learned President had never done more than approve of an initial arrangement which would have beneficial consequences.

I hold, therefore, that the appeal should be dismissed and that the action should proceed against all four defendants without any limitation on the claim.

Gethings and another v Cloney

High Court of Justice.

King’s Bench Division.

3 November 1913

[1914] 48 I.L.T.R 55
Molony J.

Molony, J.

This is a motion on behalf of the defendant for an order that all further proceedings in this action be stayed on the ground that the said action has been compromised. The action was brought to recover damages for the obstruction of a watercourse, and for breach of agreement. The defendant traversed the cause of action, and lodged £20 in Court, and counterclaimed for an injunction against the plaintiffs in respect of their user of the said watercourse. The plaintiffs in their reply deny the allegations in the counterclaim, and alternately lodge £1 in Court in full satisfaction. The action was set down for hearing before Mr. Justice Gibson at the Wexford Spring Assizes, 1913, and both parties were prepared for trial. On the morning of the assizes a conference was held in the offices of Messrs. M. J. O’Connor & Co., the solicitors for the defendant. Mr. William Carrigan, K.C., and Mr. E. A. Swayne, counsel for the plaintiffs, and Mr. James O’Connor, K.C., counsel for the defendant, were present, together with their respective solicitors, and Mr. William Moore, the clerk of the plaintiff’s solicitor, also attended. What happened at the conference is described in the 4th paragraph of Mr. M. J. O’Connor’s first affidavit, as follows:—“The question of a settlement of the action both as to the claim and counterclaim was fully discussed, and a full and final settlement was come to with the approval of all the parties thereto, counsel and solicitors on both sides expressly agreeing to each and every term of the compromise then arrived at. The said Mary Jane Gethings was not present at the interview, but it was never suggested that the parties present on her behalf had not authority to bind her. After the terms had been verbally agreed to, these terms were dictated in the presence of all the parties by Mr. James O’Connor, K.C., to the said William Moore, who took them down in shorthand. From time to time, as Mr. O’Connor dictated the agreement, Mr. Carrigan, K.C., on behalf of the plaintiffs, corrected it if it was not in conformity with the actual arrangement arrived at, and ultimately when the entire agreement had been dictated and agreed to, the said Mr. Moore read aloud to all the parties from his shorthand notes the full settlement then arrived at, and each and every one of the parties then present and their advisers agreed to same fully and finally. As a matter of fact, had time allowed, the document would have been then and there transcribed out and signed by such of the parties as were then present and their solicitors, but as a matter of convenience to the parties it was deemed unnecessary to have the document engrossed then, and they were allowed to separate without signing, but the document was in no way intended for a draft, but as a full and final settlement of the entire matters in dispute, and no question, after the said interview was open between the parties.” This account of the consultation is challenged in some respects by the plaintiff, Edward Gethings, who says in the 5th paragraph of his affidavit:—“I understood the result of the consultation to be that there was no final settlement of the action then, but that the terms contained in the proposed agreement were offered as a settlement by the defendant, and my solicitor and counsel advised me to accept them, but that before I and my wife finally agreed to them they were to be written out and sent to us for our approval and for our signature, and that the action was to stand over for the time.” Mrs. Gethings has made an affidavit in which she states that she was willing that a settlement should be arrived at, but that she was told by her solicitor that she need not attend the Assizes, and that she understood from him that before any final settlement was come to the terms of same would be submitted for her approval. It appears from a further affidavit by Mr. O’Connor that after the parties had gone Mr. Moore remained in the office, and transcribed his notes, but nothing was done in the way of getting the agreement as transcribed read over to the parties or signed by them. It was, however, intimated to the Judge that the action would not be tried, and accordingly the action was struck out, and no order was made thereon. The settlement is in the form of a memorandum of agreement stated to be made between the two plaintiffs of the one part and the defendant of the other part. It recites that “the parties hereto have agreed to settle all disputes and differences between them involved in the action in manner hereinafter appearing,” and then contains elaborate provisions for this purpose, some of which are alleged by the plaintiffs to be beyond the scope of the action. It is contended by the defendant that this agreement having been come to by the counsel on both sides acting with the full authority of their respective clients is binding, and that, consequently, under the provisions of s. 27 (5) of the Judicature Act they are entitled to a stay of the action. The plaintiffs on the other hand contend that the document itself shows that before it became operative it was intended to be signed by the parties, and that this not having been done no enforceable agreement was come to. The defendant relies on several authorities, but none of them appear to me to be applicable in the circumstances of the present case. Strauss v. Francis (L. R. 1 Q. B. 379) decides that under the old procedure counsel retained to conduct a case had a general authority to consent to the withdrawal of a juror. This, however, was part of the conduct of a case in Court, and has no bearing upon an agreement arrived at out of Court. In Harvey v. Croydon Union Sanitary Authority (26 Ch. Div. 249) it was decided that where counsel, by the authority of their clients, consent to an order, the clients cannot arbitrarily withdraw such consent; but the consent in this case was come to in open Court, and the terms of it were endorsed upon the briefs. Mathews v. Munster (20 Q. B. D. 141) was a case in which counsel for the defendant assented to a verdict against his client, and it was held that the settlement was binding on the defendant. Lord Esher, M.R., in his judgment states that “the duty of counsel is to advise his client out of Court, and to act for him in Court, and, until his authority is withdrawn, he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client. This case, must, however, be read in connection with Neale v. Gordon Lennox (1902, Appeal Cases, p. 465), which establishes the principle that a counsel has no authority to settle an action against the direct wishes of his client, or upon terms different from those which his client has authorised. Here, however, counsel did not purport to settle the case on their own authority; there was no procedure in open Court; there was no settlement endorsed on briefs; the agreement which was dictated was an agreement which did not contemplate the signatures of any persons other than the parties to the action, and it is impossible to say that such an agreement was  ever intended to be operative and binding until it was engrossed and signed by the parties. The reported cases are of no assistance, and I cannot say that any agreement has been come to which would preclude the plaintiffs from continuing the present action. It is, however, to be regretted that a settlement was not carried out, the terms of which were arrived at after long discussion and mature deliberation by the advisers of both sides. On the whole case I feel bound to refuse the motion, but, under the circumstances, without costs.

Charalambous v Nagle

[2011] IESC 11 (31 March 2011)

Judgment delivered on the 31st day of March, 2011 by Denham J.
1. This appeal is brought by Michael Charalambous, the plaintiff/appellant, referred to as “the appellant”, in proceedings which are part of a series of litigation brought by him in relation to a consent order of the Circuit Court made on the 5th February, 2008.

2. These, and other proceedings, have been brought by the appellant against Margaret Nagle, the defendant/respondent, referred to as “the respondent”, who, with her husband originally, leased a premises, on which stands The Avoca Inn, to the appellant.
Order of the High Court
3. The appellant appeals the order of the High Court (Murphy J.) given ex tempore on the 28th July, 2010, and perfected on the 29th July, 2010. The High Court ordered that the following claims of the appellant contained in his statement of claim be struck out:-

(a) the claim for an order setting aside the Order of the Circuit Court (Judge O’Sullivan) of the 5th day of February 2008 made on consent
(b) the claim for an order setting aside the Orders of the High Court of the 7th day of April 2008 and of the 25th day of May 2008

(c) the claim for an order setting aside what is claimed as “the purported settlement of the above proceedings”

(d) the claim for an order remitting “the said proceedings” to the Circuit Court for hearing

(e) the claim for an order granting [the appellant] possession of the Avoca Inn, Avoca, Co. Wicklow with attachments and appurtenances thereto

(f) the claim for specific performance of the Lease dated the 16th of April 2002

(g) the claim for an order staying enforcement of the aforesaid orders of the Circuit Court and High Court.

A claim for an Isaac Wunder order was refused. It was ordered that the appellant pay to the respondent the costs of the motion (limited to paragraph 1), when taxed and ascertained.
Grounds of Appeal
4. The appellant filed a notice of appeal stating that he would rely on the following grounds of appeal:-

That the Learned High Court Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in:

(i) Striking out the claims of the appellant contained in his Statement of Claim, and set out in the order of the learned High Court Judge dated the 28th day of July 2010.
(ii) Determining that the matter was Res Judicata, when never have the true issues between the parties been opened and argued before the Court.

(iii) Refusing the appellant an opportunity to prepare and file a replying affidavit to the affidavit of Oisin Murphy who was not a party to the proceedings.

(iv) Relying mainly on the submissions made on behalf of and the evidence contained in the affidavit of Oisin Murphy who was not a party to the proceedings.

(v) Refusing to allow the appellant to cross-examine Mr. Murphy on the sworn evidence contained in his affidavit filed on the 23rd day of July 2010.

(vi) In relying on an unsigned note of terms of consent purportedly agreed between the parties.

(vii) On failing to hear oral evidence to determine:-

a. If terms were agreed between the parties,
b. That the appellant was not agreeable to terms, and informed his solicitor (Mr. Murphy) of this and also informed the solicitor for the defendant (Mr. Joyce).

c. On what sums if any were owing once the overpayment was allowed as if none were owing the court had no jurisdiction to act to accept the consent terms

d. What advice Oisin Murphy gave to the appellant and what instructions were given by the appellant to Mr. Murphy.

(viii) Failing to address and consider the conflicting evidence on behalf of the respondent, therefore failing to consider the bone fides of the respondent.
(ix) Failing to adequately take account of what was at stake for the appellant, viz his reputation and livelihood.

(x) Such further and other grounds as may be advanced at the hearing of the appeal herein.

History
5.1 These proceedings are rooted in an ejectment civil bill, brought by the respondent, dated the 2nd October, 2006. That civil bill set out that by indenture of lease dated 16th April, 2002, the respondent and her late husband Michael Nagle, as joint tenants, demised the public house known as The Avoca Inn, in Avoca, Co. Wicklow, and the ordinary seven day publican’s licence attached thereto, to the appellant for 21 years from the 15th November, 2001, to the 16th November, 2022, subject to rents and covenants and conditions. Upon the death of her husband on the 5th October, 2005, the respondent, by right of survivorship, became entitled to the demised premises subject to and with the benefit of the said lease.
5.2 By the lease the appellant covenanted to pay during the first period of 156 weeks of the term weekly rent of €761.84 and thereafter a weekly rent not less than that sum as provided in the lease. It was provided that rent should be paid to the landlord every Thursday. It was also provided that if the rent were unpaid for 14 days it should be lawful for the respondent to enter the premises and to repossess the same, without prejudice to any right of action or remedy.

5.3 The respondent served a notice of forfeiture for rent due. According to the civil bill the sum of €27,396 was due. By the lease it was provided that the appellant should in May, 2006 apply for a tax clearance certificate necessary to renew the intoxicating liquor licence. It was claimed that in breach of covenant the appellant did not provide the tax clearance certificate in time. In the lease the appellant covenanted to pay and discharge all rates and taxes which were or might be charged on the premises. The appellant was notified that the rates for 2005 and 2006 were not paid in full.

5.4 (a) The respondent claimed recovery of possession of the demised premises, the property of the respondent, which was being wrongfully withheld by the appellant; and,

(b) the sum of €19,025 rent, plus €8,371 rent, being €27,396 in total;

(c) mesne rates due by the appellant at the rate of €761 per week;

(d) damages for default by the appellant in failing to pay the rates levied;

(e) interest; and

(f) costs of the proceedings.

6. The appellant delivered a defence on the 12th January, 2007. The appellant denied that he was in debt to the respondent and claimed that he had overpaid the rent. He claimed that the tax clearance certificate was furnished to the respondent on the 15th September, 2006, and that the licence was renewed on the 12th October, 2006. The appellant denied any failure to pay rent or rates, or that he was liable to the respondent for any amounts or damages. The appellant counterclaimed for an overpayment.

7. The matter came before the Circuit Court, Judge Terence O’Sullivan, at Bray on the 5th February, 2008. On that date the appellant was represented by solicitor, Oisin Murphy, then of the office of Farrell & Co., Solicitors.

8. The order of the Circuit Court of the 5th February, 2008 provides:-

“The DEFENDANT/(appellant) having been duly served with the Civil Bill herein and the matter coming before the Court on this day on Notice of Trial dated the 30th day of April 2007 of the Plaintiff/(respondent) WHEREUPON AND ON READING the Civil Bill and the further pleadings filed herein AND ON HEARING from Patrick Geraghty S.C., (instructed by W.R. Joyce & Co., Solicitors, of 18 Main Street, Arklow) for the Plaintiff/(respondent)and Oisin Murphy, Solicitor, (of Farrell & Co., Solicitors, of North Great George’s Street, Dublin 1) on behalf of the Defendant/(appellant) that the following Decree and Orders could be granted and made upon consent

BY CONSENT:

THE COURT DOTH ORDER that the Plaintiff/(respondent)do recover from the Defendant/(appellant)possession of ALL THAT public house known as the Avoca Inn, at Avoca, County Wicklow, together with the outbuildings, yard and car park attached thereto, and the appurtenances thereto belonging and the ordinary seven day publican’s licence attached thereto, being the hereditaments and premises described at Paragraph 1 of the Indorsement of Claim to the Civil Bill herein AND THE COURT DOTH ORDER that the Defendant/(appellant) do pay the Plaintiff’s/(respondent’s)costs of the proceedings, including all reserved costs, and a certificate for Senior Counsel, said costs to be taxed in default of agreement, AND THE COURT DOTH GRANT a stay on the Order on the terms agreed the parties that is to say:
a. the Defendant/(appellant)forthwith renews the intoxicating liquor licence relating to the said public house, and

b. each weekly instalment of £761.84 is paid to the Plaintiff’s/(respondent’s) Solicitor promptly on the Thursday of each week the first such payment to be made on the 7th February 2008 and in default of any one payment execution to issue immediately, and

c. arrears of rent and mesne rates amounting to €57.655.00 (credit having been given for the sum of €23.100.00) and the costs of the proceedings are all paid in full within four months

but that in default of any one of the foregoing execution should issue immediately
AND THE COURT DOTH GRANT liberty to apply in the event of costs not being taxed or agreed before the four months

(The words in italics have been added to clarify the relationship to the parties in this appeal)
9. The appellant filed a notice of appeal to the High Court on the 13th February, 2008, appealing the consent order.

10. On the 26th May, 2008, the appellant’s appeal from the order of the Circuit Court dated the 5th February, 2008, came on for hearing. The High Court (Edwards J.) refused the appeal on the grounds that it was an order made on consent, that no appeal lay, and ordered that:- (a) the appeal do stand refused; (b) the order of the Circuit Court is affirmed; and (c) the respondent do recover against the appellant the costs of the appeal.

11. There were proceedings also in the District Court. The District Court made an order on the 16th July, 2008, transferring to the respondent the intoxicating liquor licence in respect of The Avoca Inn, Avoca, Co. Wicklow.

12. The appellant objected and appealed that order to the Circuit Court. On the 30th October, 2008, the Circuit Court, Judge Michael White, made the following order:-

(a) an order dismissing the objections of the appellant to the transfer, grant and renewal of the licence to the respondent;
(b) an order affirming the order of the District Court dated the 16th July 2008, transferring the licence to the respondent;

(c) an order affirming the order of the District Court dated the 16th July, 2008, granting the respondent a seven day publican’s on-licence for The Avoca Inn;

(d) an order affirming the order of the District Court dated the 24th September, 2008, disallowing the objections of the appellant and granting the respondent a renewal of the licence; and

(e) an order granting the respondent an Isaac Wunder order in respect of any further applications by the appellant with regard to the licensing of the premises.

13. The appellant then filed a notice of appeal to the High Court on Circuit, appealing the judgment of the Circuit Court of the 30th October, 2008 for transferral of the licence and a renewal of the licence by notice dated 4th November, 2008.
14. The respondent brought a notice of motion on the 10th June, 2009, to the Circuit Court, grounded on the affidavit of Richard Joyce. The respondent sought:-

(a) an order re-entering the proceedings;
(b) an order striking out the appellant’s notice of appeal dated 4th November, 2008;

(c) an order restraining the appellant from issuing any further appeals in the matter;

(d) an order, if necessary, prohibiting the appellant from issuing any further proceedings against the respondent or otherwise interfering with the sale of the premises; and

(e) such further or other order as the Court deems fit.

15. In that affidavit, deposed on the 22nd April, 2009, Mr. Joyce set out the history of the proceedings: the consent order of the Circuit Court on the 5th February, 2008, ordering the payment of €57,000 by the appellant to the respondent, and a decree of possession with a stay of four months; how the appellant appealed that consent order, which appeal was refused by the High Court; that the order for possession was executed on the 2nd July, 2008; that the respondent applied to the District Court to have the licence transferred, that the appellant objected in the District Court to the transfer of that licence to the respondent on the 16th July, 2008, which he then appealed; and then brought a further application to the District Court; the appeal was dismissed by the Circuit Court, Judge White, who also directed an Isaac Wunder order; he deposed that the appellant has brought fresh plenary proceedings in the High Court in relation to the previous litigation and orders. Mr. Joyce pointed out the age of the respondent, that she is a widow, that she cannot manage a public house herself and that she wishes to sell it, that she is on social welfare, and he gave his opinion that the appellant will continue to make court applications which frustrate the respondent’s attempts to sell the premises.
High Court proceedings
16. By plenary summons dated 2nd October, 2009, the appellant sought reliefs including (a) the setting aside of the order of the Circuit Court of the 5th February, 2008; (b) the setting aside of the purported settlement of the above proceedings; (c) an order, if necessary, remitting the matter to the Circuit Court; (d) damages for breach of contract, negligence and breach of duty; (e) restitution of monies; (f) an order granting the appellant possession of The Avoca Inn; (g) an order for specific performance of the lease agreement; and (h) if necessary, an order staying enforcement of the order of the Circuit Court of the 5th February, 2008 and the orders of the High Court of the 7th April, 2008, and the 26th May, 2008.

17. The appellant filed a statement of claim on the 19th February, 2010, which revisits the consent order of 5th February, 2008; and states that the appellant was unable to make the payments referred to in the consent order, seeks to set aside the consent order; and makes a claim for damages.

18. A defence was filed on behalf of the respondent on the 4th May, 2010. It was stated that the order of 5th February, 2008 was made by consent. It was specifically pleaded that:-

(i) as the terms of settlement were being announced verbally by Counsel for the [appellant] to the Court, the [appellant] herein intervened personally to tell Judge O’Sullivan that he did not need as long a stay as four months to pay the arrears of rent, as he, the [appellant], had a property in Cyprus from which he would be able to realise the necessary monies;
(ii) Judge O’Sullivan asked the [appellant] in person if he agreed that the order was being made on consent, to which the [appellant] stated he did agree;

(iii) Judge O’Sullivan addressed the [appellant] in person and stressed to him that the payment of the weekly sum of €761.84 had to be paid on the Thursday of each week and that if he failed to make any one such payment, the order for possession would issue against him. The [appellant] responded to the effect that he understood that this was so.

Notice of Motion
19. On the 14th May, 2010, the respondent filed a notice of motion seeking an order that the following claims in the statement of claim be struck out as frivolous and vexatious, namely:-
(a) the claim for an order setting aside the Order of the Circuit Court of 5th February, 2008, made on consent;
(b) the claim for an order setting aside the orders of the High Court of the 7th April, 2008, and the 25th May, 2008;

(c) the claim for an order setting aside what is claimed as “the purported settlement of the above proceedings”;

(d) the claim for an order remitting “the said proceedings” to the Circuit Court for hearing;

(e) the claim for an order granting the appellant possession of The Avoca Inn;

(f) the claim for specific performance of the lease of the 16th April, 2002; and

(g) the claim for an order staying enforcement of the aforesaid orders of the Circuit Court and High Court.

The respondent also sought an order that , as a condition of his continuing the further prosecution of the remainder of his claims in this action, the appellant first discharge the amounts due on foot of the order of the Circuit Court of the 5th February, 2008, being arrears of rent and mesne rates of €57,655.00 and taxed costs amounting to €66,873.12 being the costs of the order of the Circuit Court and orders of the High Court of the 7th April, 2008, and the 25th May, 2008, and that until such amounts are paid to the respondent, all further proceedings by the appellant in this action be stayed.
20. The respondent, Margaret Nagle, deposed an affidavit on the 12th March, 2010 in support of the motion, and setting out the history of the litigation.

21. An opposing affidavit was deposed by Angela Farrell, solicitor, of Farrell & Co. She stated that she was instructed in the ejectment proceedings against the respondent. She gave some details about a proposed sale, and the appellant’s change of solicitor for a certain purpose. Ms. Farrell deposed that her assistant Mr. Oisin Murphy, who represented the appellant, had instructions to come off record, and that he ignored her instructions, and she made certain allegations against Mr. Murphy. Mr. Oisin Murphy filed an affidavit setting out his version of events, the negotiations, the settlement, the consent order. He deposed:-

“I wholly and utterly reject the account given by Ms. Farrell as to the conduct of the Charalambous file and my involvement in it as a work of fiction which is untrue and deliberately so.”

The appellant also deposed an affidavit.

22. The motion was heard by the High Court and Murphy J. delivered an ex tempore judgment, the order being made on the 28th July, 2010 and perfected on the 29th July, 2010. That order is set out at the commencement of this judgment.
Decision
23. Against that judgment and order of the High Court the appellant has appealed. The grounds of appeal have been set out in detail earlier in the judgment. At the hearing of the appeal Ms. Angela Farrell, solicitor, appeared on behalf of the appellant, and Mr. Geraghty, S.C. appeared for the respondent.

24. These proceedings arise from an order made on consent by the Circuit Court on the 5th February, 2008.

25. On the date of the consent order there was evidence that the appellant was legally represented, consented to the order, and envisaged that he could pay the sums ordered.

26. Problems in this case arose in that the appellant had changed his solicitor from Farrell & Co. prior to the hearing in the Circuit Court, due to other matters, but Farrell & Co. remained on record for the civil bill. On the date of the hearing Mr. Oisin Murphy, then of Farrell & Co., represented the appellant. There was affidavit evidence from Ms. Angela Farrell in which she made allegations against Mr. Murphy. In the High Court Mr. Murphy, who was not a party, filed an affidavit denying those allegations. This dispute between the solicitors may require to be addressed elsewhere. However, the fact is that Farrell & Co. were on record as the appellant’s solicitors on the 5th February, 2008, and Mr. Oisin Murphy then of that office attended and represented their client, the appellant.

27. On behalf of the appellant several matters were raised before this Court on the appeal. However, the kernel of the case is that it relates to a consent order of the Circuit Court.

28. There were no grounds raised upon which to set aside the consent order on a basis recognised by law. The appellant has brought several sets of proceedings subsequent to the order of the 5th February, 2008. However, there has been no claim of fraud.

29. These were final orders. Final orders are final and conclusive and may not be relitigated except in circumstances such as indicated in Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M. 29. Such circumstances do not arise in this case.

30. The appellant has brought further proceedings in the High Court as described. The respondent brought a motion to strike out parts of the statement of claim as vexatious. It is an appeal on this motion which is before the Court.

31. Arising out of the hearing of the motion in the High Court, the appellant complains inter alia that he was not permitted to file a replying affidavit to that of Mr. Oisin Murphy, or to have oral evidence. But this aspect of the case arose because Ms. Angela Farrell had deposed an extensive affidavit making allegations against Mr. Murphy, in his conduct of representing the appellant. Any such replying or contentious evidence, by affidavit or orally, is not for this appeal, although it may be for another time. Nothing turns on the matter for the appellant, as it is clear that he was legally represented on the day.

32. The appellant claims that he did not authorise his solicitor, Mr. Oisin Murphy, to settle, that he gave instructions not to settle, and notwithstanding the case was settled. However, it is clear that there were negotiations, that there were discussions during the day, that ultimately the matter came back to Court, the trial judge addressed the situation carefully, the appellant was in court with his legal representative, was informed of the terms of the settlement, and the consent order was made.

33. I rely on the formal order of the Circuit Court of the 5th February, 2008. Although there is a note of terms, unsigned, which Mr. Geraghty, S.C. informed this Court was in his handwriting, that is not a determining factor. The terms were dealt with in open court, by the parties with their legal representatives, and were considered carefully by the Circuit Court judge before he made the order. There is a clear consent order of the Circuit Court upon which the matter rests.

34. The High Court held that it was satisfied that Mr. Oisin Murphy had implied authority to conclude the negotiations, that his instructions were not withdrawn. On the basis of oral and affidavit evidence before the High Court, the learned High Court judge was satisfied on the balance of probabilities that the appellant had consented to the order being made.

35. The learned High Court judge acted within jurisdiction and there was no error in law.

36. In all the circumstances, having considered carefully the documents, and submissions, both written and oral, I am satisfied that the motion to strike out portions of the statement of claim as being vexatious is well founded. I would dismiss the appeal.

37. This case, based on a consent order, together with others brought by the appellant, has been in the courts for years. The respondent has been negatively affected by these years of litigation by the appellant. I would ask the parties to address the issue as to whether an Isaac Wunder order is appropriate in all the circumstances.

 

Judgment delivered by Macken, J. on the 31st day of March, 2011

1. This is an appeal from the ex tempore judgment of the High Court (Murphy, J.) delivered on the 27th July, 2010, and the Order made thereon on the 28th July, 2010. That judgment was made on a Motion filed on behalf of the respondent to strike out certain pleas from the Statement of Claim delivered by the appellant in these proceedings, on the 19th February, 2010, to which a defence was delivered by the respondent on the 4th May, 2010. These pleas are the following:

(a) The claim for an order setting aside the order of the Circuit Court (O’Sullivan, J.) of the 5th February, 2008;
(b) The claim for an order setting aside the orders of the High Court of the 7th April, 2008 and the 25th May, 2008;

(c) The claim for an order setting aside what was claimed as the “purported settlement of the above proceedings”;

(d) The claim for an order remitting “the said proceedings” to the Circuit Court for hearing;

(e) The claim for an order granting the plaintiff possession of the Avoca Inn, Avoca, County Wicklow;

(f) The claim for specific performance of a lease dated the 16th April, 2002;

(g) The claim for an order staying enforcement of the aforesaid orders of the Circuit Court and the High Court.

The “proceedings” referred to were Circuit Court proceedings, the subject of the Order at (a). The learned High Court judge acceded to the application and struck out all the above. By a Notice of Appeal dated the 18th August, 2010, the appellant appealed the same.
I will return to the Notice of Appeal in due course. To understand the appeal it is necessary, however, to say something about the background to the critical factor giving rise to these proceedings, that is, the Circuit Court Order referred to at (a) above.
The Circuit Court Proceedings
2. These proceedings and the Circuit Court proceedings, in which the last mentioned Order was made, arise out of a lease made between the appellant and the respondent and her late husband, Michael Nagle, dated the 16th April, 2002. By that lease the respondent and her husband leased public house premises known as the Avoca Inn in Avoca, Co. Wicklow, and certain outbuildings or premises, together with the ordinary seven day publican’s licence attaching to the Inn, to the appellant, for a term of 21 years from the 15th November, 2001, subject, inter alia, to the payment of a weekly rent which commenced at the rate of €761.84, and thereafter was to be in an amount fixed in accordance with the terms of the lease. The appellant went into possession of the premises pursuant to the lease, or was already in possession of them pursuant to the intended lease.

3. By an Ejectment Civil Bill dated the 2nd October, 2006 the respondent commenced proceedings against the appellant, seeking an order of possession of the premises on the basis, inter alia, that the rent had not been paid, that appropriate tax clearance certificates had not been provided, and nor had the applicable rates been paid, all in alleged breach of the terms of the lease. The respondent’s husband had died in the intervening period. Prior to the commencement of the proceedings, the respondent had served two forfeiture notices on the appellant specifying the amounts then alleged to be due, and in the proceedings claimed mesne rates thereafter.

4. The appellant entered a defence to the proceedings, claiming he had a good defence by reason of the fact that he had been overcharged for rent by the respondent since the commencement of the lease and had overpaid the respondent the sum of €23,830. He denied any rates were due and pleaded that tax clearance certificates had been provided. He counterclaimed for relief against forfeiture.

5. By Order made by the Circuit Court (O’Sullivan, J.) in the course of a hearing on the 5th February, 2008, that Court ordered that the respondent recover possession of the premises, the Avoca Inn, from the appellant. The Order cites that it was made “on consent”. The appellant was ordered to pay the respondent’s costs. Both parties were represented by legal advisors at the time, the appellant’s solicitors, Farrell & Co., being on record for him. A stay was placed on the order on terms, which, according to the Order, were the following:

(a) the defendant forthwith renew the intoxicating liquor licence in relation to the Avoca Inn;
(b) each weekly instalment of rent is paid to the respondent’s solicitor promptly on the Thursday of each week, as from the 7th February, 2008; and

(c) arrears of rent and mesne rates amounting to €57,655 (credit having been given for the above sum of €23,100) and the costs of the proceedings are paid in full within four months

but that in default of any of the foregoing execution should issue immediately, that is to say that the respondent would have possession of the premises. The stay, in my view, appears to be one whose terms attach in reality to the application for relief against forfeiture.
6. About one week later, on the 13th February, 2008, the appellant appealed the consent Order to the High Court under his own name, although his solicitors, Messrs. Farrell & Co., remained on record, and represent the appellant in this appeal. The basis for that appeal, and a subsequent application referred to below, was set out in an affidavit of the appellant sworn on the 25th March, 2008, which I consider important evidence before the learned High Court judge, because of its proximity in time to the date of the above Circuit Court order. The affidavit raised a number of complaints and made several allegations of breaches of the terms of the lease on the part of the respondent. The affidavit comprises nine closely typed pages, together with a significant number of exhibits. Apart from the introduction, under the title “Particulars of Appeal” it mentions the following: overpayment of rent, insurance, deposit, unauthorised sheds, rates, water rates, VAT on rents, improvements, premises, unpaid food and beverage bills, all allegedly being matters the appellant wished to raise. Arising further from these various headings, the appellant set out his counterclaim for a very substantial sum of money, certainly in excess of €400,000. However, the important content of the affidavit, in my view, is the part where the appellant refers to the Circuit Court hearing. He averred as follows:

“3. At a hearing before Judge Terence O’Sullivan of the Circuit Court on the 5th day of February, 2008, an order was made by consent relating to proceedings by the respondent against the appellant, a copy of which order is exhibited herewith and marked as “Exhibit B”. The Civil Bill referred to in the said order is exhibited herewith and marked as “Exhibit C”.
4. No oral evidence was given at the hearing of this action in the Circuit Court.

5. Notice of Appeal of the said order was lodged and issued on the 13th February, 2008, a copy of which is exhibited herewith and marked as “Exhibit D”.

6. The said notice of appeal has been served on the respondent, and in this regard I refer to letter dated 18th February, 2008, from W. R. Joyce & Co., solicitors acting for the respondent, a copy of which is exhibited herewith and marked as “Exhibit E”.

7. When the respondent’s action was heard before Judge O’Sullivan’s court I was informed by my solicitor that I had no option but to consent to the said order being made, as I was confined to the matters raised by me in my defence and counterclaim dated 12th January, 2007, a copy of which is exhibited herewith and marked as “Exhibit F”.

8. At the time I lodged my defence and counterclaim certain facts, upon which I have now come to rely, were not known to me – or the significance of these facts had not become apparent to me, and these matters are set out in the particulars of appeal to these proceedings which I would like to lodge in accordance with Order 61, Rule 8, of the RSC to submit fresh evidence.

9. It is my belief and my case that the respondent’s proceedings against me in the Circuit Court were misconceived, in that ….” (emphasis added)

Although the appellant averred thereafter, in his affidavit, that the respondent’s proceedings were misconceived against him, inter alia, on the basis that no rent was due because there had been an overpayment of rent, all other matters mentioned in this affidavit, apart from the averments cited above, are wholly unrelated to anything which occurred on the hearing before O’Sullivan, J. I particularly note that nowhere in that affidavit is there any allegation, or suggestion, or any hint even, that the appellant was vehemently against any settlement, or had notified either his own solicitor, in attendance on the day, or the solicitor for the respondent, that he did not wish to settle the Circuit Court proceedings, that he did not consent to the same, or that, in consequence of anything said to his solicitor, his solicitor had no authority to settle the proceedings on his behalf, or indeed anything else by way of questioning the role of his solicitor, or of the settlement.
7. By a Notice of Motion in that appeal dated the 31st March, 2008, the appellant also sought a variation of the Circuit Court order referred to above, based on the above affidavit, and sought liberty to submit new evidence for the appeal. The affidavit was replied to by the respondent, who, inter alia, averred as follows:

“I was represented at the hearing by Patrick Geraghty, S.C., and Mary Jo Butler, BL., and the defendant was represented by Oisin Murphy, solicitor. The case having been opened by senior counsel for the plaintiff, Mr. Murphy asked the Court for a short recess to discuss the matter with Mr. Geraghty; in the ensuing discussions a settlement was reached in the matter, and this was later in the day made the subject of the Court Order, made upon consent, mentioned in the Books of Appeal filed by the Defendant. Not only did the Defendant agree to the terms of the Order, but he went further by asserting to the Court that he would, from the sale of property in Cyprus which he hoped to conclude shortly, clear the arrears of rent earlier than the four months allowed.”
The respondent drew the Court’s attention to the fact that she was living on approximately €1,000 a month, by way of State widow’s pension, and that the payment of rent from the premises had ceased shortly after the death of her husband.
8. The appellant’s motion was refused by order of the High Court (Herbert, J.) dated the 7th April, 2008. The appellant’s full appeal from the Circuit Court was also refused by further Order of the High Court (Edward, J.) on the 20th May, 2008, and the Consent Order of the Circuit Court was affirmed. Both applications were refused on the basis that the order made in the Circuit Court was a final order made on consent, and that no appeal could, therefore, lie from the same.

9. The Circuit Court Order for possession of the Avoca Inn was executed on the 2nd July, 2008. On behalf of the respondent to this appeal, an application was made to the District Court for the transfer of the licence into her name, which was objected to by the appellant on the stated basis that she was an unfit person. That Order was made on the 16th July, 2008. The appellant appealed the dismissal of his objection, to the Circuit Court, appealed also from the grant of the transfer itself, and appealed against the refusal to grant a stay on the same, all of which were dismissed by order of the Circuit Court (White, J.) on the 30th October, 2008, who acknowledged the distress and financial hardship being endured by the respondent. The respondent had, it appears, been attempting to sell the premises to provide funds for her possible retirement. Although no appeal lies to the High Court from the order of White, J., the appellant nevertheless lodged a Notice of Appeal in respect of the same, despite the prior making of an Isaac Wonder order against him.
The High Court Proceedings
10. The next event which occurred after the above series of applications, appeals and orders dismissing the same, was the issuing of a Plenary Summons by the appellant against the respondent on the 9th October, 2009. In the Statement of Claim the appellant seeks orders, inter alia, in the terms of all the claims mentioned at the commencement of this judgment, the subject of the judgment and Order of the High Court under appeal to this Court.

11. The Statement of Claim was delivered on the 19th February, 2010. For the first time in any court documents, the appellant alleged that he did not instruct his solicitor to compromise the proceedings and, in fact, gave instructions to the contrary; that his solicitor, and the solicitor acting for the respondent, both knew that he had not given instructions to settle; that the respondent’s solicitor “shut his eyes” to the fact that the appellant had not authorised any settlement, and deliberately did not make the enquiries which he should have made; that that solicitor instead relied on the wording of unsigned terms of settlement surreptitiously prepared and not shown to the appellant at any time; that the settlement document was handed into court in circumstances where the solicitor for the appellant, and the solicitor for the respondent, deliberately and/or negligently concealed from the appellant the fact that they had together agreed a settlement without authority from him. All these claims are made against the respondent, although the legal basis for the same is nowhere evident on any of the pleadings. Neither the solicitor then acting for the appellant nor the solicitor for the respondent, is a party to the proceedings and neither has been sued by the appellant in any other proceeding, in respect of these matters. The statement of claim continues in somewhat the same terms, and in addition pleads, as against the respondents, breach of duty, negligence, trespass to land, to chattels, conversion and wrongful taking of electricity, failure to return monies and loss and damage in a sum in excess of €400,000,

12. The claim is fully defended by the respondent by Defence delivered on the 4th May, 2010, in which it is pleaded, inter alia, that the order of the Circuit Court of the 5th February, 2008 was made on consent. Further, it is pleaded that on the occasion of the making of that order:

“(i) As the terms of the settlement were being announced verbally by counsel for the plaintiff to the Court, the plaintiff intervened personally to tell Judge O’Sullivan that he did not need as long a stay as four months to pay the arrears of rent, as he, the plaintiff, had a property in Cyprus from which he would be able to realise the necessary monies;
(ii) Judge O’Sullivan asked the plaintiff in person if he agreed that the order was being made on consent, to which the plaintiff stated he did agree;

(iii) Judge O’Sullivan addressed the plaintiff in person and stressed to him that the payment of the weekly sum of €761.84 had to be paid on the Thursday of each week, and that if he failed to make any one such payment, the order for possession would issue against him. The plaintiff responded to the effect that he understood that this was so.”

13. Upon delivery of the Statement of Claim, and the Defence to the present proceedings, by Notice of Motion dated the 14th May, 2010, the High Court was requested to make an order striking out from the appellant’s Statement of Claim the several claims referred to at the commencement of this judgment, on the grounds that the same were frivolous and vexatious. That motion was grounded on the affidavit of the respondent to this appeal sworn on the 12th May, 2010, which affidavit was responded to by Ms. Angela Farrell, solicitor, sworn on the 9th July, 2010. That affidavit commences with the following averment:
“1. I swear this affidavit from facts within my own knowledge, save where otherwise appears, and where so appears, I say and believe that the same are true and accurate. I was the solicitor who had carriage of sale of the leasehold interest of the premises at Avoca Inn, County Wicklow.
2. I was also instructed in the Circuit Court matter of Ejectment Proceedings 493/06 taken against the plaintiff, Mrs. Nagle, the landlord, in October, 2006. …”

14. Nowhere in that affidavit does Ms. Farrell indicate she is swearing it on behalf of the plaintiff/appellant, but I take the affidavit to have been sworn and filed on his behalf, having regard to the second affidavit sworn by her on the 9th July, 2010. The affidavit of Mr. Murphy, referred to further below, was sworn in response to that first affidavit of Ms. Farrell.
15. By her affidavit sworn on the 9th July, 2010, lodged in the High Court in these proceedings, Ms. Angela Farrell, solicitor of the firm Farrell & Co., averred that Mr. Murphy, who had represented the appellant in relation to the above settlement, was her assistant at that time and had instructions only to “come off record”, but wrongly did not comply with his instructions, acted without authority or instruction; ignored her client’s instructions; misled the court and acted against the best interests of her client. She averred also to much other material of a similar nature relating to the conduct of Mr. Murphy, and of the solicitor for the respondent. The affidavit was not served on Mr. Murphy, but apparently came to his notice. Mr. Murphy, by affidavit sworn on the 22nd July, 2010, “wholly and utterly” rejected the account given by Ms. Farrell, and, inter alia, described it as being a work of fiction. Mr. Murphy detailed what, in his recollection, had occurred during the course of the proceedings, by reference, inter alia, to written materials and oral information furnished by him to Ms. Farrell.

16. That motion came on for hearing in the High Court before Murphy, J., first on the 20th July, 2010 and was adjourned to 27th July, 2010, inter alia, to permit Mr. Murphy to swear an affidavit. Judgment was delivered on an ex tempore basis, both parties having been represented by counsel. The learned High Court judge granted an order in the terms of paragraph 1 of the Notice of Motion striking out all of the above mentioned claims from the Statement of Claim, but refusing to grant any Isaac Wonder order (as had also been sought). An order to the above effect was made on the 28th July, 2010.

17. The Notice of Appeal was thereafter filed on the 18th August, 2010. There was a dispute between the appellant and the respondent as to the note of the judgment of the learned High Court judge, and notes submitted by each solicitor were furnished to the learned High Court judge for consideration. Having regard to the distinct difference in the notes, the learned High Court judge furnished an independent note of approval of a record of the High Court proceedings. signed by him, on the 28th February, 2011. It is sufficient for the purposes of this judgment to say that in his own note the learned High Court judge states that the note filed on behalf of Farrell Solicitors, dated 7th February, 2011, who acted on behalf of the appellant, “is more in the nature of submissions than a record of what occurred in the High Court”, whereas the note of the judgment of the High Court made on behalf of the respondent by W. R. Joyce & Co., solicitors, and dated 28th January, 2011, is “more comprehensive than that of Farrell & Co., in particular in relation to the role of Mr. Oisin Murphy, solicitor of Farrell & Co.”. I agree. The learned High Court judge set out in his own record what had occurred on the application before him and how the merits of the application were dealt with. I am satisfied to rely on that note, taking into account also the notes furnished by both solicitors.
The Appeal
18. On the hearing of this appeal Ms. Angela Farrell, solicitor, represented the appellant, and Mr. Geraghty, senior counsel, with Ms. Mary-Jo Butler, junior counsel, appeared on behalf of the respondent. Ms. Farrell made wide-ranging submissions on the merits of the Circuit Court proceedings, as it appeared to her they might have been argued had the matter proceeded to a full hearing, as she contends ought to have occurred. These included the fact that there was no rent due on the issuing of the Ejectment Civil Bill, if proper allowances had been made in respect of the same by the landlord/respondent, and/or her late husband; that there was no authority vested by her in her former employee, Oisin Murphy, to settle the proceedings; that insofar as her instructions were concerned – she having acknowledged that she was not present in the Circuit Court – her client, the appellant, had not given instructions to Mr. Murphy to settle; and that any ostensible authority in Mr. Murphy was withdrawn from Mr. Murphy by instruction given directly to him by the appellant.

19. On a related, but separate basis, Ms. Farrell submitted that, in law, any ostensible authority which Mr. Murphy had to settle the proceedings having been withdrawn, that absence of authority had been clearly made known to the solicitor for the respondent, because her client had informed her that he, in turn, had informed that solicitor that he did not intend to settle the proceedings. Further, there were matters which, had the Ejectment Civil Bill proceedings proceeded to a full oral hearing, the appellant would have been presented to the Court, which would have made it clear that a substantial counterclaim existed, of the type which has now been pleaded in the High Court proceedings.

20. Ms. Farrell further, in reliance on statements or information made available to her from her client, and from her client’s daughter, but nowhere sworn to, suggested that had the learned High Court judge permitted her, or the appellant, to swear an affidavit in response to the affidavit sworn by Oisin Murphy, all these matters and others would have become clear, there would have been certainty in relation to the absence of any authority in Mr. Murphy, or any authority upon which the respondent’s solicitor could rely, but that the learned High Court judge had wrongly refused an adjournment to allow an affidavit to be sworn in response to that of Mr. Murphy. To clarify how this arose, it is necessary to say something, very briefly, about the affidavit sworn by Mr. Murphy. Although very serious allegations of impropriety and of acting without authority were made against him by Ms. Farrell in her affidavit, that affidavit was not served on Mr. Murphy, who, as mentioned above, is not a party to these proceedings. He apparently came to hear about the affidavit, and on the first return date of the Motion, Mr. Murphy, through his counsel, Mr. Faughnan, sought liberty from the court to file an affidavit, both for the purposes of assisting the court, and also for the purposes of rebutting the allegations made against him by Ms. Farrell which were on record in the High Court proceedings. The learned High Court judge intimated that, since the role of Mr. Murphy in the Circuit Court proceedings appeared to be pivotal to the resolution of the matter before him, it was important that Mr. Murphy be permitted to file an affidavit. That affidavit was sworn, as mentioned above, on the 22nd July, 2010, and served, and the matter came on for hearing on the 27th July, 2010.

21. Both parties were represented by counsel on that occasion, the appellant by Mr. Goldberg, senior counsel, and the respondent by Mr. Geraghty, senior counsel, and by junior counsel. Although the note prepared by Farrell & Co., suggests that the learned High Court judge refused to allow the appellant an adjournment to reply to the affidavit of Mr. Murphy, and refused to permit “any evidence from Mr. Charalambous, either by affidavit or otherwise”, the note of the learned High Court judge indicates that, so far as he could recollect, no application was made by counsel for an adjournment. No reference is made to an application for such an adjournment in the notes prepared by the solicitors on behalf of the respondent either, and I am satisfied that on the balance of probabilities no formal application for an adjournment was made. I am further satisfied that even if Ms. Farrell had sworn a further affidavit, this would not have brought matters any further and would simply have led to a situation where, as between Ms. Farrell and Mr. Murphy, the conflict between them would be further highlighted.

22. On the law, the learned High Court judge was obliged to consider the position which had arisen in the Circuit Court and had seven affidavits before him, which he specifically refers to in his note. He noted, in particular, the role of Mr. Murphy in the negotiation of the settlement in the Circuit Court and that he had appeared “as a courtesy to the court” and had been represented by counsel before him. The learned High Court judge also noted that Mr. Geraghty, senior counsel, who had appeared for the respondent in the Circuit Court, was satisfied that Mr. Murphy had authority to settle the matter.

23. Murphy, J. noted also that he had considered the submissions of senior counsel, Mr. Goldberg, on behalf of the appellant, and recognised that the mater was “somewhat charged”, given the conflict of evidence between Ms. Farrell and her former assistant Mr. Murphy. He mentioned, critically, the following two matters:

“Central to the application to the court is undoubtedly the order made by Judge O’Sullivan on the 5th February, 2008. The learned trial judge referred to the appearance of Patrick Geraghty, S. C. (instructed by W. R. Joyce & Co., solicitors) for the plaintiff Margaret Nagle and the appearance of Oisin Murphy, solicitor (of Farrell & Co., solicitors) on behalf of the defendant (in the order made). The order further recited that the decree and orders following could be granted and made upon consent.”
The learned High Court judge concluded as follows:
“The Court is satisfied that Mr. Oisin Murphy had implied authority to conclude the negotiations; that instructions were not withdrawn. On the basis of oral and affidavit evidence before this Court, the Court is satisfied on the balance of probabilities that Mr. Charalambous consented to the order being made”.
24. Having regard to the foregoing, the question which arises on this appeal is whether or not the learned High Court judge misdirected himself in law in failing to apply the appropriate tests, or principles, to the examination of the issues before him, or in respect of the conclusions he reached, on the motion.
25. Ms. Farrell, on behalf of the appellant in this appeal, submits that as to the note of the consent or settlement, prepared and written by Mr. Geraghty, senior counsel, that this was (a) unsigned by her client; (b) was handed into court inappropriately; (c) was arranged and agreed without the knowledge of the appellant; and finally (d) that it is a note or memorandum within the provisions of s.2 of the Statute of Frauds, but not executed by the party being charged by its content. Not having been signed, it cannot bind him. The learned trial judge had misdirected himself in that regard.

As to the last of these, I am satisfied that there is no basis in law for finding that a settlement agreement of the type existing in this case, the terms of which are handed in to Court, frequently for the convenience of the Court, but which could have been recited by counsel orally for the purposes of asking the Court to make an Order in the terms of the consent agreed, is not a note or memorandum for the purposes of the Statute of Frauds, and that there is no good basis in law for the argument made on behalf of the appellant on that ground.

26. Ms. Farrell further places considerable emphasis on the fact that the note was unsigned, but cites no authority for any obligation that it should be signed, or that in law it has no effect unless it is signed, apart from the Statute of Frauds point, and I am satisfied that this too is not a basis upon which to find that the learned High Court judge reached an incorrect conclusion in law, and I dismiss that ground too.

27. Ms. Farrell made several other submissions which do not appear to me to be germane to the issue under consideration here. They relate again to the role of Mr. Murphy, and his instructions on her behalf; to what she considers to have been the understanding of the appellant on the day when the order was made; to the question as to whether or not her firm was really on record for him or were merely what she calls “technically” on record, and other non-critical issues. In fact, her firm has never come off record in the entire course of the two sets of proceedings, whether the original Circuit Court proceedings or the present High Court proceedings.

28. As to the contention that this was a settlement made without the knowledge of the appellant, the learned High Court judge had before him ample evidence upon which to conclude both that the appellant knew the content of the settlement and understood it; that the solicitor acting on behalf of the appellant had ostensible authority to conclude the settlement; and that his instructions were not withdrawn. I am satisfied, therefore, the learned High Court judge had ample material before him upon which to conclude the settlement was a consent settlement, and that the Order of the Circuit Court (O’Sullivan, J.) was a valid Consent Order, including the affidavit evidence of the appellant himself sworn a short time after the Circuit Court Order was made.. That being so, the next matter to be considered and applied is the law relating to final orders, including Consent Orders, and whether the content of proceedings leading to the making of such an Order can be relitigated. The law relating to final orders is helpfully found in the case of Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M., as referred to in McG (G) v W (D) IESC 31st March, 2000, in which the fundamental principle relating to any change in a final order is set out in the judgment of Denham, J., invoking English case law to the following effect:

“The position and principles appear, however, to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] I Ch 673, where, at p.677 he stated as follows:

‘So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:
(1) Where there has been an accidental slip in the judgment as drawn up, in which cases the court has power to rectify it under 0.28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.’

Having referred to the decision of the Court of Appeal in In re Swire 30 ChD 239, Romer J quoted from the judgments in that case as follows at p.678:

‘Cotton LJ says: “It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon what which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”
Lindley LJ says: ‘If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.’

And Bowen LJ says: “An order, as it seems to me, even when passed and entered, may be amended by the courts so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.”

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made.”
29. Final orders are just that – final and conclusive. They may not be altered except in circumstances such as indicated in case law. The circumstances permit alterations which are intended accurately to reflect what was actually decided, and which the order sought to be amended ought to have said, had it been drawn correctly. There were no proper grounds advanced, in the present case, to set aside the Consent Order on a basis recognised by law. There was and is no claim of fraud pleaded in the present proceedings, although Ms. Farrell in answer to questions from the bench on this point appeared to demur slightly and to reserve her position. That is not an acceptable approach, in my view, since if it is intended to plead fraud, the pleadings must recite the facts which give rise to the allegation in terms which make it absolutely clear that such a plea is being pursued. Such a plea is not disclosed in this case on the pleadings.
30. Having regard to the foregoing, I am satisfied that the learned High Court judge could, both on the law opened to him and on the material evidence before him, properly conclude that the Circuit Court Order was made with the consent of the appellant. It follows, on the law, that the two orders of the High Court (Herbert, J. and Edwards, J.) were orders properly made on the basis of the materials before them, and cannot be set aside. Having regard, further, to the fact that the original order was made with the consent of the appellant, there could be no valid plea for an order setting aside “the purported settlement of the proceedings” since they were settled on consent. Nor could there be an order made for the purposes of remitting “the said proceedings” to the Circuit Court, being the proceedings the subject of a final consent order. Finally there could not be an order for possession, nor any order for specific performance of the lease, the subject matter of the settled Circuit Court proceedings.

31. In the circumstances, the order made by the learned High Court judge for the relief claimed at paragraph 1 of the Notice of Motion, filed on behalf of the respondent to this appeal, as defendant in the High Court proceedings, was an order which the learned High Court judge was entitled to make and which was properly and lawfully made.

32. I would dismiss the appeal and affirm the Order of the High Court.