THE HIGH COURT
2010 1035 S
ALLIED IRISH BANKS PLC
PLAINTIFF
V.
LIAM COLLINS
DEFENDANT
DECISION of THE MASTER OF THE HIGH COURT 16th November, 2011
Language is important. A defendant in a case of the types listed in Order 2 of the Rules
of the Superior Courts is, apparently, not ipso facto entitled to defend the claim unless
the plaintiff says he may. Instead, he must first obtain from the Court “leave to defend”
(O. 37, r.10). The phrase is unfortunate and, historically, originated in the procedures of
another era. It is peculiarly inappropriate in the present age in which citizens enjoy the
full panoply of human rights, including, of course, the right to a fair hearing before the
Courts.
The Rules of Court do not specify what the defendant needs to show if he is to succeed in
resisting the plaintiff’s application for summary judgment.
Note that any defendant refused “leave to defend” has only one further avenue of
redress: an appeal to the Supreme Court. For a litigant in person, a self-representing or
“lay” litigant, this is a mountain to climb. To passers by, this does not look like even
handed justice.
Quite probably, present day judges who employ the phrase “leave to defend” do not
pause to consider the implicit slur on the defendant’s expressed position. The phrase is,
unconsciously, disrespectful and patronising. Unfortunately, the context in which the
“leave” is granted or refused only serves to confirm a lay litigant’s impression that this is
about whether the Court will be patient enough to tolerate his efforts to explain his
position. He gets one chance. He is one of perhaps one hundred matters listed before
one judge on a Monday morning. Everybody talks fast. The lay litigant must feel cowed
to keep his arguments short. That may be his undoing. As recently as 1999, in Bank of
Ireland v. Educational Building Society, 1 I.R. 220,the Supreme Court quoted Barry L.J.
from an old Irish case Crawford v. Gilmore [1891] 30 LR Ir 238, 245:“I am of the opinion that . . . the mere length of time which has been occupied by
the argument of this case . . . shows that it does not come within the rule which
allows final judgment to be summarily marked on motion.”
In other words, the self-representing litigant’s chances of getting “leave to defend” may
depend on the time he takes to make his case (the longer he takes, the better his
chances), and if he had lawyers who could spin out the argument, his chances would
greatly improve. Or perhaps Barry L.J. was just joking?
Then again, it is perhaps the crowded Monday morning list which is the joke? We need to
face up to the disturbing possibility that the lay litigant may not be getting a fair hearing
on a Monday morning. We need to disassemble all the features of the process and
critically check them for the decay of injustice.
One of the problems is that the Monday morning list is comprised of a mixture of different
types of “motions”, so called, some of which are interlocutory and some final. The
motions this decision is concerned with are “motions for liberty to enter final judgment”.
These are applications by plaintiffs to, in effect, deny the defendant his “leave to defend”
and to permit the plaintiff to get and enforce judgment for the amount claimed. Clearly,
this is a “trial” for the purposes of the “fair hearing” article (Article 6) of the Human
Rights Convention. Lose on a Monday and the defendant has lost the case. This type of
motion, therefore, is clearly not an interlocutory application for some temporary order
pending a full hearing at some later date.
The upshot is that we have a trial being processed in a Monday list as if it were just
another interlocutory application. Plaintiffs often offer hearsay evidence in support of the
claim when, according to Order 40(4) affidavits should be confined to such facts as the
witness is able of his own knowledge to prove “. . . except on interlocutory motions”.
(Indeed, properly structured as a trial, the plaintiff should probably be governed by Order
39, “witnesses at the trial of any action shall be examined viva voce”).
Order 40, rule 1 provides that “upon any motion . . . evidence may be given by affidavit
but the Court may order the attendance for cross-examination of the person making such
affidavit”. In my experience, the Court will not entertain a lay defendant’s application to
cross-examine the plaintiff’s deponent on a Monday morning. Notices to cross-examine
are being set aside by the Court as if cross-examination was only an optional luxury
instead of a fair hearing entitlement. (See, for example, Order of 30th May, 2011, in AIB
plc. v. Sweeney and Another [2010] 2403 S).
In an effort to provide for earlier “trial” dates for cases which are indefensible, the judges
have created a fast track procedure which jeopardises some defendants’ right to a fair
hearing. This is not a price worth paying just to achieve good productivity figures for the
Courts Service.
A RUSH TO JUDGMENT?
It should be borne in mind that the litigation procedures spelt out in the Rules of the
Court are not writ in stone. We made them. We can change them. No plaintiff has a
Constitutional right to be facilitated with a fast track process such as that now available
with the Summary Summons procedure. The classic procedural model, the Plenary
hearing (or “evidentiary” hearing as the Americans call it), with full adversarial clash and
live testimony, has always been regarded as the fairest trial. It is due process. It is
natural justice in action. Modify it and you may unwittingly damage in-built protections
serving the interests of justice.
It should be borne in mind that no litigant has an entitlement, as a matter of law, to have
his case fast tracked. The origins of today’s summary procedure were in mid 19th
century legislation to improve the efficiency and transparency of the bills of exchange
mechanism. It was thought that encashability should be underpinned by a procedure for
prompt hearing of legal challenges as to validity. In effect a defendant should not be
permitted to avoid liability by abusing the litigation process on the strength of an
unstateable defence.
Obviously, abuses of process must be corrected. The Superior Courts have inherent
powers to do so. The summary judgment option was extended to other classes of action
in the post Judicature Act Rules of Court (in Ireland the 1877 Rules) and somewhere
along the line, the test operated by the court lost contact with its (abuse of process by
the defendant) origins, and sought to focus on the reality of the defendant’s supposed
defence: plaintiffs did not have to prove abuse of process, instead, defendants have to
prove a stateable defence. This plaintiff friendly bias and the shifting of the burden of
proof, although heavily constrained by appeal courts, nevertheless created a considerable
practical imbalance between the parties. No plaintiff can complain of injustice if his
application for summary judgment is unsuccessful as he can proceed with the case on the
standard track. By contrast, the defendant is clearly exposed to injustice if the hearing of
the motion is not wholly in accordance with the law and precedents in that regard. Only
comparatively recently has the UK recast the procedure to allow a defendant to avail of a
similar application to summarily dispose of the plaintiff’s case if there be no real case to
answer (see Three Rivers [2001] 2 AER).
It was probably not a good idea to reinforce this one-sided procedure by creating an
entirely new class of summons for these actions in the Free State’s 1926 Rules of Court.
The new rule included all types of action formerly dealt with by Writ of Summons specially
indorsed, and later again a subset of these were given their own summons, the Special
Summons, leaving a very limited range of actions (broadly speaking, for “special” or
known debts or other clear cut, black and white claims), to be processed under Order 37 .
The 1926 Rules provide that a plaintiff must seek summary judgment in such a case.
There is no other route (save, of course, plenary hearing by consent). It would appear,
logically that no plaintiff should use the Summary Summons unless he is confident of
securing summary judgment. If he is not confident he should use the Plenary Summons.
(But they don’t, do they?). In short, these plaintiffs are being given special treatment by
the legal system, deserved or undeserved, but at what cost?
Under O. 37, plaintiffs’ claims can be processed speedily when the sum involved is
already ascertained, and when the plaintiff’s solicitor confirms to the Court that there is
no defence to his client’s claim. This latter requirement allows the Court to rely on its
own officer’s opinion and mark judgment when a defendant has not disputed the plaintiff’s
evidence or advanced any contrary legal argument.
The opinion of the solicitor for the plaintiff, even if he is an officer of the Court, must
surely be the most unsafe basis for any Court’s determination. Even without any sworn
testimony from the defendant, the plaintiff’s own case may be discovered to be not at all
as clear as his solicitor may have thought. If the Court chooses to review the papers and
concludes that the solicitor’s opinion is wrong, what is the sanction for the solicitor’s
unprofessional opinion? Is there any? If not, how often has an injustice been perpetrated
when the Court relied on such an opinion without checking for itself? And what of the
possibility of deliberate false certification by a solicitor who, far from misreading the
possibility, actually knows that the defendant has a good defence?
What we have is a fast track procedure in which the Court may proceed to enter final
judgment because it has the plaintiff’s solicitor’s “letter of comfort” as to the
appropriateness of granting summary judgment without a plenary hearing.
See? All of the momentum behind a Motion for Liberty to enter final judgment on a
Summary Summons is driving the Court towards a fast track outcome. It is difficult to
see how a defendant can switch the speeding train back onto the standard track. Giving
a plaintiff the chance to avail of the fast track necessarily involves procedurally
shortchanging the defendant, perhaps even to the point of infringing his right to a fair
hearing. In short, the question is: can the “trial” which takes place in the Monday list
sometimes be so constructed in the plaintiff’s favour as to deprive the defendant of his
human rights?
THE MONDAY MOTION: THE DEFENDANT’S PERSPECTIVE
The defendant is served with a Summary Summons by which it appears the Chief Justice
requires him to enter an appearance in the Central Office and advising that:
“If you do enter an appearance, due notice of the day and hour of the hearing of
this Summons will be delivered at the address for service.”
After he has found out what an “appearance” is (“entering an appearance” does not mean
“showing up”!), the defendant dates and signs a pre-printed form and confirms that, “the
said Defendant requires delivery of a Statement of Claim”.
He then waits for “delivery of a Statement of Claim” but none arrives. Nor is he given
“due notice of the day and hour of the hearing of the Summons”. Instead, he gets a
“Notice of Motion” which announces that the plaintiff will apply to the Master of the High
Court for “liberty” to “enter final judgment for the amount claimed”.
He may, with some justification, think that this hearing before the Master of the High
Court is to be the “hearing” of which he had earlier been advised by the Chief Justice, and
he arrives in Court expecting (as any lay person would, in the absence of any indication to
the contrary) to be able to give his evidence by word of mouth.
Nowhere in the Notice of Motion does it state that he will not be able to give evidence
there and then, but should, instead, prepare, in advance of the hearing, a written
(preferably typed) statement of the evidence he would like to give, in the form of a sworn
“affidavit” of evidence. So he arrives in Court without this. He starts the day
understandably confused. (One defendant recently told me he was afraid that he might
end the day in jail).
More confusion follows! He discovers that the Master’s “Court” is not a real court and the
case is not going to be “heard” there that day at all. The Master is the High Court case
manager, and he will give the motion a hearing date for a Monday some time in the
future when the papers are “in order”.
If he is lucky, the Master will suggest to him (the defendant) that he probably should ask
for an adjournment to give him time to prepare, swear, stamp, file and deliver a replying
affidavit. The Master may even tell him what an affidavit is, and give a broad indication
that he (the defendant) should try to set down all the facts he can recall which may be
relevant to the case.
On the other hand, the Master may decide that because there is no replying affidavit from
the defendant, he (the defendant) has not “contested” the plaintiff’s case, and he (the
Master) may give the plaintiff the order he is seeking, so concluding the case (subject to
appeal: the Master may tell the defendant of his right of appeal, or he may not) without
any hearing either before a judge or at all, even though the defendant is present and
would happily tell his story, if given the opportunity.
Some commentators have suggested that the provision in the Rules which permits the
Master to transfer the file, as it is, to the Monday list in his discretion (O. 63, r. 7) or in
case of difficulty or doubt (O. 37, r. 12) must be used when a defendant appears in
person without a replying affidavit. To what end? The defendant will then arrive for the
Monday hearing without an affidavit and is even less likely to be given an opportunity to
tell his story, or even to adjourn further to file the affidavit he should have filed before.
Even the Master is confused! Should he correct or suggest improvements to a first
affidavit submitted by a lay defendant? Should he explore, in open Court, the
circumstances deposed to? If he can see the makings of a stateable defence or a
counterclaim, should he alert the defendant? Should he “coach” him for the forthcoming
hearing in the Monday list? Should he advise the defendant of his rights (i) to seek a
strike out if the endorsement of claim is too imprecise, or (ii) if the grounding affidavit is
skimpy, to ask that the motion be dismissed for want of evidence, or (iii) of his option to
serve a notice to cross-examine the plaintiff’s deponent? In short, can the glaring gaps in
the fairness of the procedures for the defendant be considered patched over or closed on
the basis that the Master may be considered as the defendant’s tutor in all relevant
procedural, evidential and legal aspects of the case? I hardly think the proposition is
stateable!
The rationale for Order 37 is in the expectation that most cases will be concluded on the
“no contest” basis (a very loose concept, surely, found nowhere else in the Rules!), and
that anything with the merest suggestion of dispute as to the facts or law would be
transferred to a judge’s list on a Monday.
The yardstick for the judge on a Monday is entirely different. It is not spelt out in the
Rules of Court. Case law tells us that it is about whether the defence is stateable. The
problem for the lay defendant is whether he has enough information about this basis of
assessment to enable him to cogently argue the point. His starting difficulty may be that
the affidavit he has submitted may have inadvertently omitted key facts to which he could
have testified but which he did not, at the time, appreciate might be critical. A thin
affidavit may have been enough to constitute a “contest” and get him on to the Monday
list, but it may be altogether too superficial to convince the Monday judge that he has an
arguable answer to the claim. There may even be a real danger of the judge profiling
defendants and jumping to a conclusion in the interests of expedition, even a conclusion
which rejects sworn testimony because it conforms to a pattern seen in other cases and is
therefore likely to be untrue? Bizarrely, a plaintiff may patch gaps in his evidence (often
on hearsay evidence) on a similar profiling basis invoking the maxim omnia praesumunter
rite esse acta.
It is a strangely distorted view of the respective importance to be attached to the
plaintiff’s “entitlement” to summary judgment and the defendant’s “right” to a fair hearing
to treat both as on a par, or even to treat the former as superior. Yet every Monday,
lawyers for the plaintiff place emphasis on the former and the defendant, as litigant in
person, is often unable to figure out what he is supposed to say. Let me spell it out. A
plaintiff’s access to justice is not constrained in any way just because the case has to be
tried on the standard track. Summary judgment is not even a statutory right; it is a fast
track at the discretion of the Court. The defendant’s right to a fair hearing, on the other
hand, is superior on all counts: it is a trump card.
LEAVE TO DEFEND
Looked at another way, the defendant’s replying affidavit is his completed application
form for permission to be allowed to give his evidence in the box in a hearing with
examination and cross examination of witnesses. Of course, a lay litigant does not know
this. Nor is he likely to know that the test he must satisfy for leave to defend is that his
affidavit sets out “a good arguable case”. If the hearing of the motion is to be the only
trial the defendant will get, surely he should know the precise test which the Court will
apply before it gives final judgment in favour of the plaintiff? Fail the test, as stated
above, and the defendant will be held liable for the plaintiff’s claim.
In the course of his judgment in Aer Rianta CPT v. Ryanair Limited [2002] 1 I.L.R.M. 381,
393, Hardiman J. noted that:“At the start of the hearing of the present appeal counsel assured us that there was
agreement between them that the test set out in the judgment of this Court in First
National Commercial Bank plc v. Anglin [1996] 1 I.R. 75 was the correct test to
apply. However, it transpired in the course of the argument that counsel were by
no means agreed on what this test meant: each advanced an interpretation of it
which, if accepted, would dictate a resolution of the present appeal in favour of his
own client.”
Judge Hardiman then sought to reconcile the two views by pointing out that the old
formula of a “fair and reasonable probability of the defendant having a real or bona fide
defence” was “not the same thing as a defence which will probably succeed or even a
defence whose success is not improbable”.
The formula employed in the quotation cited above is not lay litigant friendly. Apparently,
it is not counsel friendly either. Even judges have difficulty with it. McKechnie J., then in
the High Court, observed in Harrisrange Ltd. v. Duncan [2003] 4 I.R. 1, that Hardiman J’s
“conclusion was, I think, that leave to defend should be granted unless it was very clear
that the defendant had no defence, not even one which could be described as arguable”.
McKechnie J. then went on to explore the test in the following manner:
“(i)
the power to grant summary judgment should be exercised with discernible
caution;
(ii)
in deciding upon this issue the court should look at the entirety of the situation and
consider the particular facts of each individual case, there being several ways in
which this may best be done;
(iii)
in so doing the court should assess not only the defendant's response, but also in
the context of that response, the cogency of the evidence adduced on behalf of the
plaintiff, being mindful at all times of the unavoidable limitations which are inherent
on any conflicting affidavit evidence;
(iv)
where truly there are no issues or issues of simplicity only or issues easily
determinable, then this procedure is suitable for use;
(v)
where however, there are issues of fact which, in themselves, are material to
success or failure, then their resolution is unsuitable for this procedure;
(vi)
where there are issues of law, this summary process may be appropriate but only
so if it is clear that fuller argument and greater thought is evidently not required for
a better determination of such issues;
(vii)
the test to be applied, as now formulated, is whether the defendant has satisfied
the court that he has a fair or reasonable probability of having a real or bona fide
defence; or as it is sometimes put, ‘is what the defendant says credible?’, which
latter phrase I would take as having as against the former an equivalence of both
meaning and result;
(viii) this test is not the same as and should be not elevated into a threshold of a
defendant having to prove that his defence will probably succeed or that success is
not improbable, it being sufficient if there is an arguable defence;
(ix)
leave to defend should be granted unless it is very clear that there is no defence;
(x)
leave to defend should not be refused only because the court has reason to doubt
the bona fides of the defendant or has reason to doubt whether he has a genuine
cause of action;
(xi)
leave should not be granted where the only relevant averment in the totality of the
evidence, is a mere assertion of a given situation which is to form the basis of a
defence and finally;
(xii)
the overriding determinative factor, bearing in mind the constitutional basis of a
person's right of access to justice either to assert or respond to litigation, is the
achievement of a just result whether that be liberty to enter judgment or leave to
defend, as the case may be.”
Stated simply, it appears that a defendant will not get a “Plenary” hearing unless he has
an arguable case. The basis of an argument could be factual or legal, but he will not be
prompted by the judge, no matter how complex the underlying legal considerations. Of
course, the judge may feel himself duty bound to take his own counsel and, if he spots a
possible basis of defence or counterclaim, simply grant leave to defend without explaining
why. We lawyers may be in our comfort zone working with these principles, but in all
fairness, how is a lay litigant expected either to know of or translate and apply them to
his case? For a defendant appearing in person, this is surely a surreal world: he just
wants to get into the witness box and give his story.
FACTUAL MATRIX AND LEGAL PRINCIPLES APPLICABLE
A few examples may shed some light on theory and on the practice.
A personal representative sued in respect of a transaction with the testator of which he had no
personal knowledge is entitled to have the debt formally proved. Likewise, a guarantor:
in one of the earliest cases (still cited, it should be noted, a century later), on an
application for summary judgment on a guarantee, Lloyds Banking Co. v. Ogle, 1876 1
ExD. 262 Bramwell B. ruled that:
“The power to sign judgment was, in my opinion, intended to apply to those cases
which almost on the admission of the defendant are undefended, and not to cases
in which the defendant might reasonably say ‘I do not know if your case is well
founded or not, but I require you to prove it’ . . .
In my opinion, it ought to be a general rule that where there is no
acknowledgement of the debt by the defendant, or anything else to show that the
defence is for mere purpose of delay, in the case of a guarantor or surety like the
defendant, he should not be prevented from going to trial.”
Next, take the question of good consideration for the giving of a guarantee in respect of a
third party’s debts. In Provincial Bank of Ireland Ltd. v Donnell, C.A. 1933, (Northern
Ireland Law Reports) Andrews L.J. held that:
“. . . an agreement by a creditor that he will forbear to sue . . . is a sufficient
consideration . . . So also is actual forbearance at the request, express or implied,
of the defendant . . . (e.g.) ‘in consideration of your not suing my husband’.
If, apart from agreement, there was in fact, a forbearance to sue there is not a
particle of evidence to show, as is necessary, that such forbearance resulted from
any request, express or implied, on the part of the defendant.
Could the consideration be made valuable by reference to ‘advances that may
hereafter be made’? . . . It is clear that where there is no agreement binding on the
plaintiffs to make the advances, and no advances are in fact made, the guarantee
must be construed as conditional and the guarantee fails for want of consideration.”
A third example is in the area of undue influence on a wife who signs a guarantee. The
following material is extracted from a student textbook on contract law, just the sort of
book a lay litigant might be likely to consult. “Case example”: Barclays Bank plc. v.
O’Brien [1993] 4 All ER 417:
“Mrs O’Brien could succeed because, as a wife, she was part of a specially protected
class of persons under equity, acting as surety for a debt . . . a surety of this type
could not be enforced where it had been gained by the presumed undue influence
of the principal debtor . . .
The House of Lords took a different view. Lord Browne Wilkinson rejected the
special equity theory because this would inevitably have the effect of making
lending institutions reluctant to make loans on the security of domestic residences.
In any case he felt that the Court of Appeal was extending the scope of actual
undue influence to include wives, for which there was no precedent. Instead, the
doctrine of notice should be applied:
•
the creditor would be put on notice of possible undue influence in situations
where on the face of it the transaction was disadvantageous to the wife, and there
was a risk that the husband may have committed a legal or equitable wrong in
getting his wife to sign
•
unless the creditor took reasonable steps to ensure that the surety was entered
into with free will and full knowledge then the creditor would be fixed with
constructive notice of the undue influence
•
constructive notice could be avoided by warning of the risks involved and
advising of the need to take independent legal advice at a meeting not attended by
the principal . . .
The categories of undue influence have been identified in two groups, with the
second itself being divided into two distinct groups:
•
Class 1 - actual undue influence - where the person alleging the undue influence
must prove it
•
Class 2A - presumed undue influence - where, because of the relationship of the
parties involved, the courts will presume that undue influence occurred unless the
contrary is proven
•
Class 2B - relationships of trust and confidence - where there is no automatic
presumption of undue influence but it is accepted that the relationship of the
parties is one in which undue influence could arise (the most obvious relationship
included in this group, because it was expressly excluded from the traditional class
of presumed undue influence, but because also of the levels of trust and confidence
that might be expected from it, is that of husband and wife).”
And, lastly, a recent written decision of our own High Court. Allied Irish Banks plc. v.
Galvin Developments (Killarney) Limited, Souter Enterprises Limited, Jeremiah Galvin,
Colm Galvin, Denis Galvin, John Shee and Joseph Hanrahan [2011] IEHC 314. The
extracts are all quotations from the judgment of Finlay Geoghegan J. The editing is by
myself.
“The documents signed by the Galvin Brothers on 10th September, 2008, are the
documents under which AIB now pursues its claim against GDK and the Galvin
Brothers. The facts surrounding the signing of the letters of sanction and
guarantees in September 2008 demonstrate a regrettable casualness of AIB, GDK
and the Galvin Brothers in relation to the execution of documents.
The consistent practice between AIB, South Mall, and the Galvin Brothers
demonstrates the willingness and a practice of the parties to execute and accept
documents, the Guarantees, which were not intended to be relied upon in
accordance with their express terms having regard to other terms implicitly agreed
....
I have concluded that, as a matter of probability, the details in the Schedule to the
guarantees, including the date, were inserted after their execution by the Galvin
Brothers on 10th September, 2008 . . .
It is now agreed by AIB that the copy of the letter of offer dated 4th September,
2008, purporting to have been accepted and signed by the Galvin Brothers enclosed
with the letter of 4th March 2009, is not, in fact, the letter of offer which they did
sign on 10th September, 2008 . . . There is no clear explanation of how AIB, in
March 2009 and thereafter, had on its records a form of letter of sanction with an
acceptance page purporting to have been signed by the Galvin Brothers when it is
now agreed that the version they signed is different . . .
In the letters of sanction of September 2008 in respect of each facility, there is a
heading ‘Repayment’ and differing provisions as to the repayment of both the
capital and interest and normal provision for review or refinance by a specified
date. Construing those provisions objectively in accordance with the principles set
out by the Supreme Court in Analog Devices B.V. v. Zurich Insurance [2005] 1 I.R.
274, in the relevant factual matrix and having regard, in particular, to the purpose
of the individual loans expressed in the letters of sanction, in my judgment, there
was express agreement by AIB on repayment terms which did not include the loans
being repayable on demand . . .
Where, as on the facts herein, the letter of sanction contains an express provision
in relation to the rate of interest payable and contains no reference to the
possibility of any differing interest rate being applicable in certain circumstances, it
appears to me that insofar as the General Terms and Conditions contain a provision
for the charging of interest at any rate other than the interest rate expressly set
out in the letter of sanction, that it is in conflict with the terms of the letter of
sanction and, accordingly, pursuant to clause 1.1.2 of the General Terms does not
apply . . .
There was an established practice of AIB, at its South Mall branch prior to 2007, of
requiring the Galvin Brothers to execute unrestricted guarantees of the liabilities of
GDK (except as to amount) and agreeing in a letter of sanction to GDK to restrict
AIB’s recourse under the guarantees to the Galvin Brothers’ interest in specified
lands . . .
The meaning which a document (or any other utterance) would convey to a
reasonable man is not the same thing as the meaning of its words. The meaning of
words is a matter of dictionaries and grammar; the meaning of the document is
what the parties using those words against the relevant background would
reasonably have been understood to mean . . .
It is clear that not every statement or promise made in the course of negotiations
for a contract may give rise to a finding that a collateral contract exists. To be so
treated, a statement must be intended to have contractual effect, see ‘Chitty on
Contracts’, 29th Ed., para. 12-004 and cases referred to therein . . . In his seminal
article on collateral contracts, Lord Wedderburn also focused on the element of
judicial discretion involved in the process:
‘The frequency with which such ‘collateral contracts’ make their appearance .
. . depends upon the extent to which the courts are willing to spell them out
of a situation where this is a possible, but not a necessary analysis. Their
increasing tendency to favour such a view in cases where justice is promoted
by so doing, gives added importance to the ‘collateral contract’.”
The Heads of Terms is a commercial agreement and must be construed objectively
in accordance with the principles in Analog Devices B.V.
“The Heads of Terms were not intended to constitute an unconditonal binding
agreement between the parties to make available or take the facilities referred to
therein. Neither, however, construing them in accordance with their terms in the
relevant factual matrix were they intended to be devoid of contractual effect . . .
I have concluded on the facts found herein that there existed a collateral contract in
the sense of a prior representation by AIB intended to have contractual effect that
it would limit its recourse to the Galvin Brothers to 50% of the drawn debt of
agreed facilities. . .
The representation by AIB in the letters of sanction to GDK in relation to the
historical facilities that it would restrict recourse pursuant to the personal
guarantees from the Galvin brothers to their interest in the lands at Cappagh may
similarly be analysed as a statement which induced the Galvin brothers to give
unrestricted personal guarantees and upon signature thereof became a collateral
contract to the unrestricted contracts of personal guarantees from the Galvin
Brothers . . .”
THE DEFENDANT’S ACCOUNT AND OTHER MATERIALS
The equivalent UK summary judgment procedure operates under slightly different
wording, sometimes reduced to the shorthand of “whether there is a triable issue”.
The first test there is whether there is any real prospect of success (in defending the
case). UK courts have explained that “real” means “not fanciful”. Lord Woolf, Master of
the Rolls, commented in Swain v. Hillman 2001} 1 AER 91,95, that the rule was
“designed to deal with cases that are not fit for trial at all”.
The White Book (2007 Ed.) complains that:
“In practice, it is often more difficult to apply the ‘no real prospect of success’ test
on an application for summary judgment than it is to try the case in its entirety”,
and adds that:
“How the Court decides whether a defence is real without conducting a mini trial
has led to a series of unsatisfactory cases.”
The UK Rules there add the further test of “whether there ought for some other reason to
be a trial”. This latter test refers to old cases such as Daimler Co. Ltd. v. Continental Tyre
& Rubber Co. (Great Britain) Ltd., 1916 2AC 307 (“leave to defend so that the
circumstances could be looked into more closely”).
In Miles v. Bull, [1969] 1 QB 258, Megarry J. found the wording of the second test very
wide but they “. . . seemed to have a special significance where relevant facts were under
the plaintiff’s control, and the defendant would have to elicit by discovery and crossexamination those which helped her . .
After concluding that a certain transaction had not been shown on the evidence to be a
sham, he said that it nevertheless bore something of the appearance of a device. Though
a device could be a perfectly genuine transaction, yet ought ‘for some . . . reason’ to be a
trial, and that reason was that of justice . . (Abstract courtesy of Oyez practice notes).
The UK’s approach seems to be more free ranging than as applies in this jurisdiction. It
appears to be more open to the idea that the defendant may be one or two material facts
short of an “arguable” defence and that the Court could itself supply the deficiency on a
“what if” basis. The Court, in short, will not shut out the possibility of extra facts
emerging in due course, even if the defendant cannot be aware of them now (or is
actually aware of them but has not referred to them because he does not realise their
legal significance). The Court should consider evidence that could reasonably be available
at trial (Royal Brompton Hospital v. Hammond [2001] EWCA Civ 550 CA).
But first we must question whether there is as a matter of law, any admissible evidence
before the Court. Suppose the defendant’s statement is unsworn? Is it admissible? (If
not, is there any “contest” and shouldn’t the Master simply grant the plaintiff the final
judgment it seeks?)
Or should the unsworn statement be read “de bene esse”? A difficulty: if the hearing is
in public, might there be no privilege defence in an action for defamation arising out of
the reading in public of an unsworn statement which is, technically, not evidence in the
case?
Note that the notice of motion made no mention of any need to file a replying affidavit.
In fact, it mentioned nothing of practical benefit to the defendant, except that the
“application” would be “made” when and where. Can one fault a defendant who turns up
with documents which are not properly “exhibited” or who expects to be allowed to
explain his case without first having to write it all out? Is he to be granted an
adjournment to better prepare? Is he to be advised by either the Master as case manager
or the judge on a Monday morning of his option to request an adjournment for that
purpose? Even if the lay litigant had checked the Rules of Court, he would not have found
any reference to testimony having to be given under oath. Plenty of references to
affidavits; no reference to the oath itself.
In the 1858 edition of Taylor on ‘Evidence’ at p. 1112 (Vol. 2), we find this statement
(which is not cross-referenced to any cited case law, but is, nevertheless, authoritative):
“Indeed, no person, whatever functions he may have to discharge in relation to the
cause in question or whatever be his rank, age, country, or belief, can give
testimony upon any trial, civil or criminal, until he have, in one form or other, given
an outward pledge that he considers himself responsible to God for the truth of
what he is about to narrate.”
And this footnote on the following page:
“In some few of the British Colonies, where the aborigines are ‘destitute of
knowledge of God and of any religious belief’ ordinances have been made for the
admission of the testimony of such persons without the previous sanction of an
oath.”
In Mapp v. Gilhooley [1991] 2 I.R., 253, 262, Finlay C.J. confirms that the requirement
has its origins in Common Law, adding, “the broad purpose of the rule is to ensure as far
as possible that such viva voce evidence shall be true by the provision of a moral or
religious and legal sanction against deliberate untruth”.
This decision is probably not the place to explore the legal position regarding the oath.
Its status is a matter of substantive law and only the judges or the legislature can made a
change. It is, however, of interest to note the preponderance of judicial opinion in regard
to admissibility of evidence in administrative or quasi judicial tribunals, perhaps best
summed up in the “substantial evidence” rule found in the US Federal Administrative
Procedure Act, and described by Hughes CJ in the Consolidated Edison case [1938] (305
US 197) as, “more than a scintilla of evidence and such relevant evidence as a reasonable
man might accept to support a conclusion”. In T.A. Miller Ltd v. Minister of Housing
[1968] 1 W.L.R. 992;995 the UK Master of the Rolls ruled that “the rule of thumb by
which an adjudicator decides whether to admit or exclude an oral or written statement
tendered as evidence should be whether the statement is relevant, reliable and logically
probative”.
Reliability is clearly the key consideration underlying the Common Law’s approach to
admissability. If a person is prepared to offer his soul as his bond, his evidence (if he is a
man of faith) is likely to be more reliable. On the other hand, if every witness is sworn,
who knows which of them is truly offering this additional assurance of truth? Perhaps
witnesses should just be offered the option of taking the oath and the evidence of each
rated as more or less reliable by reference to the solemnity each attaches to the choice he
makes.
Reliability is also the issue which causes the judges in their Rules of Court to stipulate, in
Order 39, that “the Court may order that any particular fact may be proved by affidavit
provided that such an order should not be made where it appears to the Court that the
other party bona fide desires the production of a witness for cross examination”.
The general policy is repeated in Order 40 which confirms that on the hearing of every
motion etc., although evidence may be on affidavit, the Court may order the attendance
of a deponent for cross examination. There is, apparently a slight difference, a more
ready acceptance of evidence by affidavit, in the hearing of motions as opposed to the
position which pertains at the trial of an action.
This distinction is also to be found in O. 40, r. 4 which confines affidavits to “such facts as
the witness is able of his knowledge to prove . . . except on interlocutory motions on
which statements as to his belief with the grounds thereof may be admitted”.
There is no definitive ruling as to whether a motion for liberty to enter final judgment is
an interlocutory motion. Curiously, plaintiffs’ affidavits are usually full of hearsay, while a
defendant who submits hearsay testimony will find the Court reluctant to accept it.
The terms of O. 37 r. 1 seem to treat the motion as neither one nor other (a sui generis
application?) which “shall be supported by an affidavit sworn by the plaintiff or by any
person who can swear positively to the facts showing that the plaintiff is entitled to the
relief claimed and stating that in the belief of the deponent there is no defence to the
action.”
Particularly in a situation where the defendant’s hearsay evidence may be rejected as
“incredible” one must wonder what role is intended to be played by hearsay evidence to
the effect that the plaintiff’s solicitor has advised the plaintiff that the defendant has “no
defence to the action”. I have suggested elsewhere (Tattensaufer) that this averment
plays a key role when a defendant does not appear to contest the application. The Court
insists, in effect, on obtaining indirectly a confirmation from one of its own officers that it
is appropriate to proceed to final judgment. Such a confirmation can only be of true
value when the Court’s officer, although he is the plaintiff’s solicitor, approaches the file
with detachment and objectively as lawyer and looks at both sides of the case.
Otherwise, his advice to his client is not worth the paper it is written on, except to satisfy
the form (but not the substance) of the judges’ requirements.
An interesting subsidiary question is whether the “defence” to which the rule refers is a
defence of the sort envisaged in Aer Rianta v. Ryanair and as described extensively in
Harrisrange above cited.
Somewhere along the line, solicitors for the plaintiff have lost touch with their obligation
to assess the pros and cons of their client’s case before so advising. Consequently, in
many cases such averment is not reliable testimony. Thus, we find the more florid and
inventive averments to the effect that the defendant’s entry of appearance is merely for
the purpose of delay. Where did this come from? And how could the solicitor know what
was in the mind of the defendant? Or is it merely to corroborate the genuineness of the
averment that there is no defence? Whatever it is, its inclusion suggests that the solicitor
has not properly understood his duty to the Court in this regard. Probably, the Court
should call for and inspect the advices.
Additional embellishments have grown like barnacles on this averment over the years.
There is no defence “in law or on the merits”, whatever that means. There is no “bona
fide” defence? A prejudgment of the defendant’s capacity to avoid the truth, if it suits
him? (The solicitor has, or course, no such doubts about his own client).
Lastly, I cannot avoid adding here the comment that, of all deponents, solicitors is the
group most frequently found to have only a nodding acquaintance with the truth. Many
will not hesitate to swear, in a formulaic way, if that is what the rules require them to
affirm, without double-checking as to the true position. Some have, in my opinion,
debased the concept of the affidavit and the oath and now treat them respectively with no
more formality that they would an application form and a signature. In short, solicitor’s
averments are not generally “reliable”.
Given that the scenario we are concerned with in this decision is that which arises when a
defendant wishes to contest the claim and has (or intends to) file his own affidavit with
regard to the facts, does the Court now simply allow the plaintiff’s solicitor’s opinion on
the availability of a defence to fall out of the equation? Is it no longer in the scales? That
would be a neat solution, but the damage may have been done: it may linger. Might not
the Court also, perhaps unwittingly, view the fact that the defendant has no solicitor as
somehow corroborative of the plaintiff’s solicitor’s assessment of no defence?
The disturbing question remains: if it is the task of the plaintiff’s solicitor to filter
applications for fast track judgment and only to initiate claims which he is satisfied cannot
be defended, a more conscientious attention to his responsibility would stop many such
applications before they had even been commenced.
I suspect that many solicitors issue
a summary summons without first considering whether they will be able, in due course, to
advise their client that the defendant has no defence. That is an abuse of the process.
However, although the process may be abused in this way, the abuse itself does not
infect the hearing so as to make it unfair unless the Court accepts the no defence
averment at its face value and weighs it in the scales against the defendant’s perhaps
imprecise, halting, or uncertain averments suggesting the contrary? Which should be
treated as more “reliable?
Even if it is unclear whether any probative weight still attaches to the plaintiff’s averment
(that he is advised that there is no defence) once the defendant attends the hearing, it is
certainly clear that the Court should be able to rely on counsel to assist in the task of
objectively configuring the facts and law so as to determine whether the defendant has
made out a good case for him to be granted leave to defend. Counsel has an overriding
obligation to the Court (under the heading ‘Relations between a Barrister and the Court in
the Code of Conduct for the Bar of Ireland’), namely:
“5.7 In Civil cases, and subject as hereinafter provided, a Barrister opening the
case must ensure that the Court is informed of any relevant decision on a point of
law or any legislative provision of which he is aware and which he believes is
immediately in point whether it be for or against his contention.”
This is counsel’s obligation under the Bar’s Code of Conduct. Unfortunately, in one case
recently (AIB v. John Waters [2010] 820 SP), when I had spotted a clear legal difficulty in
regard to consideration moving from the bank to the guarantor and in a situation where
the defendant, appearing in person, was clearly unaware of the plaintiff’s difficulty, I
invited the plaintiff to make submissions to me in that regard and adjourned the motion
for a few weeks to that end, but counsel, instead of honouring the overriding obligation to
the Court, accepted instructions from the client bank to appeal the adjournment on the
basis that the bank was “concerned about creating a precedent of making legal
submissions in the Master’s Court and how the costs of such submissions should be
addressed”.
And so here we are, a defendant appearing in person with or without a sworn affidavit. A
judge who cannot rely on either the plaintiff’s solicitor or plaintiff’s counsel to inform his
assessment of the strength and weaknesses of the defendant’s factual assertions (and
possible material omissions) and the applicable law. Consider again the US rule: would
an evidentiary hearing serve no useful purpose? The answer is obvious. An evidentiary
hearing is the only hearing which would be fair.
“NO GENUINE ISSUE AS TO ANY MATERIAL FACT”.
“NOTHING FOR THE JURY TO DECIDE”.
“A HEARING COULD NOT EFFECT THE DECISION”
Rule 56 of the US Federal Rules of Civil Procedure describe the pre-conditions for a
Summary Judgment on motion as follows:
“The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Succinctly, the legal view in the US is that the summary judgment procedure is not in
conflict with due process (in the US meaning jury trial) “only (my emphasis) where there
is nothing from the jury to decide” (Gelhorn ‘Summary Judgment in Administrative
Adjudication’ 84 Harvard L.Rev. 612). Likewise, in Administrative Law “a rule allowing
summary decisions in administrative decision would not improperly deny the right to a
hearing (if) it allowed the hearing examiner or agency to dispense with an evidentiary
hearing only (my emphasis again) if the absence of a hearing could not affect the
decision”. Gelhorn’s suggested due process limits to summary adjudication by US
agencies would not be out of place in the Irish High Court on a Monday morning.
The Irish Supreme Court has historically approached the issue with great unease.
Summary judgment is, after all, prima facie in breach of the right to a fair trial. However,
instances of defendants who appear in person succeeding on appeal to overturn a
summary judgment against them in the High Court are few and far between. The most
obvious reason is the reason the defendant is self-representing in the first place: he does
not have the means to launch or progress an appeal. It is no answer for the Irish State to
submit that the Supreme Court will always hear such an appeal with exceptional patience
and sensitivity (which it always does) if the option of appealing is, for obvious practical
reasons, effectively closed. The answer must be that the High Court, at first instance,
assess all these cases, without exception, in accordance with the directions of the
Supreme Court, even when the defendant is ignorant of the relevant case law and dicta.
EXCURSUS ON COSTS
When the new Irish judiciary adopted new Court rules in 1926, they decided on fixing the
motion for liberty to enter final judgment as a standard stage in litigating summary
summons claims (formerly known as writs of summons specially endorsed). A plaintiff
cannot progress his case without first seeking summary judgment in this way. All such
claims must be the subject of a motion. Unfortunately, one of the consequences of
adopting that procedural model was that plaintiffs could not be penalised in costs for
doing so. Up until that change, they could be penalised under the 1905 Rules and the
earlier Rules under the 1877 Judicature Act.
Odgers 1906 edition records the position at that time in the following passage:
“If the plaintiff, in the opinion of the Master, knows that the defendant relied on a
contention which would entitle him to unconditional leave to defend, the application
should be dismissed with costs to be paid forthwith by the plaintiff in order to
discourage plaintiffs from making unnecessary applications.”
Halsbury 3rd Ed., (1958) Vol. 22, 765, confirms that:
“Where the plaintiff, in the opinion of the Master, knew that the defendant relied on
a contention which would entitle him to unconditional leave to defend, the
application may be dismissed with costs to be paid forthwith by the plaintiff.”
In Pocock v. ADAC Ltd. [1952] 1 TLR, 29, 34, Goddard C.J. indicated that “if it is clear that the
plaintiff knew there was an arguable defence, the Summons should be dismissed with
costs”.
Now, however, there appears to be no real sanction for groundless applications for
summary judgment. Not only that, but, following Masterson v. Scallan [1927] I.R. 453,
the rigour which might be thought appropriate for such motions is not to be applied to
procedural irregularities on the part of the plaintiff. I am sometimes asked to sanction a
plaintiff who has failed to adhere to any timetable for expedition in the filing of
supplemental affidavits, but there seems to be little appetite for dismissal of such motions
for unwarranted delay on the plaintiff’s part.
In conclusion, the whole procedure may involve a full hearing before the Master followed
by a full hearing in the Monday lists, with multiple adjournments in both venues before a
case may have to be transferred back to the standard track. This is a wholly
unacceptable, clumsy and inefficient use of the Court’s time, and puts both sides to
avoidable expense.
Now look at the case of the F brothers. I have changed their names because the case is
yet to be heard. The defendants have handed me a document, part typed, part
handwritten, which I now reproduce as an appendix. For a fuller appreciation of the
Court’s workload in these lay litigant cases, the appendix should be read carefully.
The contents, of course, prompt a sympathetic response on a human level. But on a legal
level, the Court must panhandle for the legally significant nuggets asserted. It must be a
clinical and dispassionate exercise.
•
The bank was bouncing company cheques before the guarantee was signed.
•
Pat F. understood that signing was to keep the account operational.
•
The document he signed was just a photocopy sheet with the bank official’s name
on it.
•
He was not told to seek legal advice; not aware he had to.
•
Ger did not sign.
•
Pat F. told bank official the signature of Kevin was not genuine.
•
Ger’s name was scored out and Kevin’s inserted in its place.
•
Pat was told if he consented to judgment, Kevin and Ger “would be left alone”.
So, the questions that arise are:
1.
Was there ever a guarantee signed?
2.
Is it tainted?
3.
What consideration did the bank agree to give?
4.
Estoppel and/or waiver?
The G brothers got a fair hearing; they had lawyers. The State provided, effectively free
of charge, the services of a High Court judge who produced a 30-page 25,000-word
judgment. The judge noted:
“The relevant evidence included the oral evidence and witness statements and
contemporaneous documents. (The handwritten notes of Mr. Madden and Mr.
O’Mahony were produced in evidence and explained by them). The findings of fact
are made on an assessment of the evidence tendered in the context of those
documents, as well as my observation of the witnesses in giving their evidence.”
One thing is certain. The bank was told by Pat F. that there was a question mark over the
signatures on the guarantee. Given that, why did the bank’s solicitors opt for a Summary
Summons, which, in due course, would require the solicitors advising the bank that there
was no defence? There is no way of avoiding calling a spade a spade. This was abuse of
process by the bank. Further, the solicitor, as officer of the Court, signally ignored his
duty to the Court and should be sanctioned in costs. Under the equivalent UK rule of
Court, the defendant would be awarded his costs “payable forthwith”. It is only by
imposing such sanctions in such cases that plaintiffs will think twice about trying to fast
track in cases where fast track is not appropriate.
Now, suppose for a moment, that Mr. G., without lawyers appearing on his behalf, had
had to represent himself and his brothers at the first stage at the hearing of the motion
for liberty to enter final judgment, and had made allegations about the circumstances of
their dealings with AIB of the sort found, ultimately, by the Court to be true. Was this
story credible? Would the G. brothers have been given leave to defend?
Unlike the G. brothers, the F. brothers have no lawyers. The question is how far the
judge and the procedures and practices of the Court should help the F brothers overcome
the disadvantage this causes them?
The public has a keen appreciation of what constitutes a fair hearing. Recently they voted
against Constitutional change which might have allowed Oireachtas Committees, after due
inquiry, to make findings which might affect only the reputations of citizens. Order 37 of
the Rules of Court allows the Courts to make findings (“final judgment”) which affect not
just reputations, but the livelihoods, property and credit ratings of citizens.
The public probably thinks that any inquiry conducted by a judge will ipso facto be a “due”
inquiry. That the Courts set the standards of a fair hearing. That, whether or not he has
a lawyer, a party will at least be allowed an opportunity to present his own evidence and
confront his opponent’s witnesses. The fast track summary judgment procedure, even
though designed by judges, may not meet this standard. It may not be the fair hearing
which the Human Rights Convention guarantees.
The hearing of the plaintiff’s application for summary judgment may be the only “hearing”
the defendant is given, and at its conclusion, he may be denied “leave to defend” the
case. The UK’s annually published Guide on Court Procedure (the ‘White Book’) noted, at
p. 569 of the 2007 Ed., Vol. 1, that:
“The disposal of a claim or part of a claim by way of summary judgment may raise
issues in relation to the ECHR Article 6 right of access to a Court.”
COLLINS: AN ARGUABLE DEFENCE?
The defendant in this case has filed two affidavits and makes some clear points, and some
less clear. He claims that there are discrepancies in the figures between sums mentioned
in letters and sums averred to by the plaintiff’s witness. He says that the bank knew,
because of a poor payment record on an earlier loan, that he would be “clearly unable” to
repay a later loan and that giving him the second loan was “reckless lending”. Further,
he asserts that “none of the special conditions” for the second loan “have been satisfied”,
and that the bank failed to take steps “to satisfy these special conditions” and “thereby
protect the joint interests of the parties”. He submits that “disclosure of the bank files”
will be needed to enable him to prove these assertions. He further argues that the bank
is “estopped from claiming interest”, but does not specifically relate this back to any one
(or more) of the earlier circumstances deposed to.
There is a definite probability that Mr. Collins will be refused leave to defend. His
argument about the bank owing him a duty of care not to lend to him when they knew he
could not afford it is not a proposition which is stateable in law as no duty of care can
override contractual terms freely entered into by persons with full capacity. (Usually,
defendants argue that the banks advised that repayments would be no problem for the
borrower - this case is unusual). If he asserted that the bank never expected to be paid
and never intended to ask for repayment, that might be, prima facie, interesting
(although counter-intuitive), but he has not gone that far, and indeed, the exhibited
documents suggest otherwise. Anyway, why would the bank give him the money, not
expecting to be repaid? (Admittedly, stranger things have happened!) Perhaps there is
some significance or interconnection with the first loan (about which Mr. Collins makes no
comments). Perhaps not. Are all Mr. Collins’ angles leading to legal dead ends? Is it
“very clear that he does not even have an arguable case”? As things stand, yes.
HUMAN RIGHTS
It comes down to this: the argument on a Monday morning is as to whether the
defendant has an arguable case. The defendant may know what his case actually is, but
he does not know whether it is “arguable” or not. That is a matter for legal submission
regarding the net legal effect of the facts asserted by the defendant (if true). The
argument about arguability tends, perhaps inevitably, to morph into an argument about
probability and credibility. But if the Court is prone to such error, it should be conscious
of the obligation to hear the defendant’s testimony viva voce before refusing him leave to
defend.
Instinctively, one would think that Human Rights include a right that not only would
justice be done, but that it would be seen to be done. On that basis, a refusal to give Mr.
Collins leave to defend based merely on a fast track consideration of the affidavits on a
Monday morning, and without Mr. Collins himself having an opportunity even to give his
own evidence viva voce, would appear to be deficient.
Not necessarily so. As Jacobs and White explain in their book on the European
Convention of Human Rights (OUP, 4th Ed., 2006, 176):
“What matters is that each party is afforded a reasonable opportunity to present his
case - including his evidence - under conditions that do not place him at a
substantial disadvantage vis a vis the other side”. Additionally, the authors observe
that “there is no duty on the State, for example, to provide legal aid to an
impecunious litigant to such a level as to bring him or her into total parity with a
wealthy opponent”. Under the heading ‘Effective Participation’ on p. 180, the
authors note that “it is not, however, sufficient that the criminal defendant or civil
party is present in court. He or she must, in addition, be able effectively to
participate in the proceedings”.
But, in my view, for a lay litigant the minimum requirement for effective participation is to
be allowed an opportunity to give his evidence in the witness stand. That is an absolute
sine qua non: it would seem to follow that the test for leave to defend should not be the
test dating from 1875 (“is it very clear the defendant does not even have an arguable
case?”) but a new test derived from Human Rights principles: “is it very clear the case
can be fairly decided without an evidentiary hearing?” No floodgate argument should
prevail against a defendant’s right to a fair hearing.
The Rules of the Superior Courts do not enjoy the same legal standing as the European
Convention on Human Rights Act 2003. The latter is statute. The former is delegated
legislation (or “Statutory Instrument”) under statutory powers. By virtue of s. 2(1) of the
2003 Act, the Statute under which the Rules have been made must now be, in effect,
reinterpreted “in a manner compatible with the State’s obligations under the Convention
provisions”. Clearly, any rule of Court which provides for a procedure which is
incompatible with the Convention is, therefore, invalid as and from the enactment of the
2003 Act. It is probably unnecessary for the Court to make a declaration of
incompatibility under s. 5 of that Act “of its own motion”. A declaration would merely
confirm the invalidity.
But in the absence of a declaration, must the Rules of Court continue to be observed as
drafted? It is probably not open to the Master of the High Court to make a declaration of
incompatibility but, under s. 3 of the Act, I must, as an organ of the State, perform my
functions in a manner compatible with the State’s obligations under the Convention
provisions. Accordingly, I am removing this case from the fast track and listing it for
Plenary hearing.
APPENDIX
Letter (affidavit?) to the Master of the High Court from Pat F. (name changed) dated 20th
October, 2011:
“I Pat F. do swear that the information given by me is true to the best of my
knowledge and belief.
In 2004, I Pat F. together with my brothers Ger F. and Conal F. set up a company
(the company) to undertake the building of one off houses and other construction
work for the purpose of employment and income for ourselves and our families.
Conal and I were to be in ongoing employment and Ger who had full time
employment was to be a silent partner. We then employed another brother Kevin F
as a labourer. We continued in business until 2006 when difficulties began. Firstly
a VAT bill for the sum of €23,011 in respect of arrears dated the 16th January 2006
which we were struggling to pay. On the 30th April 2006 my brother Conal died of
suicide. Eleven days later my son Jamie F. was born. In the following days of his
birth Jamie took ill and for a time we were in and out of hospital with him. On the
26th June 2006 he was rushed to Crumlin hospital and was on a life support
machine for five days. He was diagnosed with Pertusis and had three holes in his
heart, he also had a collapsed lung. We had spent a further two weeks staying with
him in the hospital. Soon after I returned from hospital, myself and Kevin continued
to work and following a telephone conversation with the AIB bank as they began
bouncing cheques etc, I was asked to come in and sign guarantee to keep our
account operational. Upon attending the bank on the 29th August 2006 I was
presented with a photocopied sheet on which was the bank officials name, no other
documents we attached and I wasn’t told to seek legal advice and I wasn’t aware I
had to. My basic understanding of signing the form was to keep the account
operational and without my signature and my brother Ger’s signature the account
would have been foreclosed. As I was under pressure from the Revenue
Commissioner and the employment of Kevin and I, I signed it. The bank manager
asked me to get Ger to come in to the bank to sign the form but I explained to him
that Ger was hard to get as he worked nights and would be asleep during the day
so I asked that I take the form home to get him to sign it and we would return it to
them. The bank official told me to leave it for now and he would get Ger to sign
when he can. Kevin and I continued to work and I lodged sums of money to the
back when I was able to try to clear the arrears. Sometime after when the
lodgements got smaller as work got quiet I had to let Kevin go as I couldn’t afford
to pay him. My account was referred to AIB in Dublin where I came in contact with
J.G. a very nice man who was approachable with suggestions to pay the debt off. I
then returned home one evening to find a letter from the AIB about the moneys
owed. Kevin also received the letter which he was angry about as he never signed
the guarantee or had no need to as he was only an employee of the company and it
was Ger who was supposed to sign the form. I rang J.G. the following day and told
him Kevin never signed the form so he told me he would send me a copy of the
guarantee and asked me to check Kevin’s signature on it. I did so and we both
agreed it wasn’t his signature. Also in the guarantee schedule part 2 Ger’s name
had been scored out and Kevin’s name wrote in its place. I rang J.G. again and told
him Kevin confirmed it wasn’t his signature and he never signed anything. He
didn’t take the matter any further and just told me to keep paying back the debt. I
agreed over the phone with him to pay €1000 per month for the next 4 months and
further smaller amounts for a time after that until the business dropped again. I
then began to get into financial difficulty again. Attention then turned to my father
gifting a site to me for my own dwelling to be built. I was asked to give the bank
an undertaking over the site on the monies owed and told to get my solicitor to
draw it up. The solicitor refused to do so and advised me not to give them an
undertaking. On another occasion I was asked to try and obtain a mortgage on the
site from another bank and to pay the AIB their money but I told them I couldn’t
pay to keep the business going so I couldn’t afford to pay another bank back a
mortgage. I struggled from then on to keep the business going and couldn’t pay
anything since because of the debt and a downturn in work. I have been trying
with the help of MABS to get the interest of the debt stopped. I have total debts in
the region of €100,000 hanging over my head and the company is waiting to be
struck off because it has ceased trading due to bad debts.
I also have to add that I take full responsibility for all the moneys owed and would
like it if my brothers Kevin and Ger were both kept out of it. I mentioned this to
solicitor and was told that if I consented to judgment upon myself they would be
both alone (ref. Letter G.).
I have 2 dependent children under the age of six and am in a long term relationship
with their mother, we cannot afford to move in together and the loss of my site to
the bank would permanently disable me from ever providing them with a home for
myself and them. I’m a proud working man and don’t want to be dependent on
benefits and want to plan a future for myself and my family so I leave myself at the
mercy of the court, and I beg onto thee to show me leniency on this matter and I
will comply and trust in your judgment.
Yours sincerely,
Pat F.”