Limiting the grounds of defence available to a defendant at the plenary stage

The 2011 ruling of Judge Finlay Geoghegan in Bussoleno Limited v Kelly & Others 1 is increasingly being cited by plaintiffs seeking judgment in the High Court. The decision is being cited as a means of limiting the grounds of defence that a defendant can rely upon if the matter is remitted from summary to plenary hearing. If successful, such a limitation can reduce the time and cost burdens of a plenary trial, particularly at the discovery stage.

A defendant need only show an arguable or stateable defence in order to have a summary claim remitted to plenary hearing. The test as set out by the Supreme Court in Aer Rianta v Ryanair 2 and Danske Bank A/S trading as NIB v Durkan New Homes 3 is designed to

  1. protect the interests of justice and
  2. ensure that a defendant is afforded an opportunity to fully advance any genuine defence he may have to a plaintiff’s claim at plenary hearing

However, increasingly defendants are employing a scatter-gun approach to resisting summary claims by advancing numerous lines of supposedly arguable defences. This approach is invariably being taken in order to: 

  1. give the Court the impression that their case is more complex than it actually is (and therefore worthy of more detailed examination at plenary trial) and
  2. convince the Court that at least one of these arguable defences is worthy of further consideration at the plenary stage

In Bussoleno, two of the three defendants advanced four grounds of arguable defence as a means of resisting the plaintiff’s claim for summary judgment. Having weighed each of the arguable defences on their merits, Judge Finlay Geoghegan ruled that in the interests of justice and a fair and efficient hearing, only one of the four arguable defences should be permitted to be pursued at plenary hearing. In doing so, she exercised the Court’s discretion under Order 37 Rules 7 and 10 of the RSC.

Rules 7 and 10 provide: 

“Upon the hearing of any such motion by the Court, the Court may give judgement for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just…”

“Leave to defend may be given unconditionally or subject to such terms as to give security, or time and mode of trial, or otherwise as the Court may think fit.”

While the plaintiff in Bussoleno failed to obtain summary judgment, the Court’s decision meant that it would not have to deal with three of the four arguable defences advanced by two of the defendants at the plenary stage. The obvious practical benefit of this decision was that the plenary process, particularly the discovery stage, would now be considerably truncated leading to tangible time and cost savings for Bussoleno.

The decision demonstrates the power of the High Court to provide direction and structure to cases at the end of a summary hearing.

The decision has been cited with approval in a number of High Court matters, including by Judge Keane in The Governor and Company of the Bank of Ireland v Rogerson & Others [2013] 2711 S and by Judge Fullam in the recent Commercial Court decision of NALM v Kelleher [2015] IEHC 169

The Kelleher decision is the subject of an appeal and the decision of the Court of Appeal, together with its analysis of the Bussoleno decision, will be of keen interest to litigants and practitioners alike. 

While a plaintiff seeking judgment may be somewhat disappointed by a Court’s refusal to grant judgement at the summary stage, it is important to recognise the mitigation value of a decision based on Bussoleno in relation to the speed and cost of the plenary process.