Ms Justice Costello of the High Court recently refused an application to dismiss a special summons on the grounds that it did not disclose a cause of action or failed to plead the necessary particulars of the plaintiff’s claim[1].

Background

The plaintiff issued a special summons on 6 April 2017 seeking an Order pursuant to s. 62(7) of the Registration of Title Act, 1964 for possession of properties charged by the defendants to the plaintiff. An affidavit verifying, confirming and endorsing the content of the special indorsement of claim in the special summons was sworn by a manager of the plaintiff’s bank and duly filed. Of note, no replying affidavit was filed by the defendants contesting the plaintiff’s claim.

The Court was satisfied that the plaintiff’s affidavit proved all of the matters necessary to enable the plaintiff obtain the reliefs sought. Counsel for the defendants was also satisfied that the plaintiff’s proofs were in order if the indorsement of claim was in compliance with the Rules of the Superior Courts.

Indorsement failed to supply the “necessary particulars”

The defendants submitted that the indorsement of claim failed to provide the “necessary particulars” required by Order 4 rule 4 of the Rules of the Superior Courts for a valid special indorsement of claim.

Order 4 rule 4 provides inter alia that:

“The indorsement of claim on a summary summons and on a special summons shall be entitled “SPECIAL INDORSEMENT OF CLAIM,” and shall state specifically and with all necessary particulars the relief claimed and the grounds thereof.”

The defendants relied on a number of authorities to support their application to include Caulfield v. Bolger [1927] I.R.117 where a solicitor sued his client for costs under the Attorneys and Solicitors (Ireland) Act, 1849. The Act provided that no solicitor can maintain an action for the recovery of costs until the expiration of one month after the delivery to the party to be charged, with a bill of such costs signed by the solicitor. The indorsement of claim on the summary summons in that case did not plead those essential facts and was therefore defective. It was held that “necessary particulars” “connote such particulars as are essential to make the indorsement a good statement of claim both in particularity of fact and in law”. In Bond v. Holton [1959] I.R.302, the plaintiff’s claim was for rent due on foot of a lease but the summons did not plead that the defendant had accepted an offer of a lease. On that basis, the summons was dismissed as disclosing no cause of action. The defendants also relied upon Allied Irish Banks Ltd v. The George Ltd (unreported, High, Court Butler J, 21 July, 1975) wherein the Court held that the special indorsement of claim satisfied the rules but the affidavit grounding the application for judgment was insufficient to entitle the plaintiff to summary judgment.

Defendants made aware of the nature of the case to be met

The plaintiff relied upon the recent decision of Allied Irish Banks Plc v. Pierce [2015] IECA 87 where the Court of Appeal considered how extensive the particulars in a claim for a liquidated sum must be, in order to satisfy the requirements of Order 4 rule 4. The Court held that the obligation to provide particulars is not an end in itself but it is to ensure that litigants are provided with sufficient particulars to enable them to determine whether they are obliged to pay the sum claimed. Interestingly, the Court looked at correspondence from the defendant’s financial advisor, exhibited in the plaintiff’s grounding affidavits, to determine whether the defendant was fully aware of the nature of the plaintiff’s claim against her and thus to determine whether the indorsement on the summary summons complied with the requirements of Order 4 rule 4. The following principles have emerged from that particular case:

  1. It is for a defendant to demonstrate that the particulars of the claim are inadequate.
  2. This must be demonstrated by cogent affidavit evidence.
  3. The defendant is required to establish that the matter cannot be fairly determined in the absence of such particulars.
  4. The question of the adequacy of the particulars cannot arise unless the defendant first demonstrates by way of affidavit evidence that the particulars of the claim are inadequate.
  5. In assessing whether a plaintiff has supplied adequate particulars for the purposes of Order 4 rule 4, the court may have regard to the defendant’s knowledge of the nature of the case from sources other than the special indorsement of claim.

In the present case, it was accepted by counsel for the plaintiff that the pleading might have been improved by including a reference to the fact that the principal monies had fallen due but it was submitted that the omission was not fatal to the case pleaded. The mortgage provided that the total debt would become immediately payable to the plaintiff if the defendants defaulted in the making of two monthly repayments. As such, the plaintiffs argued that it was not necessary to plead that repayment of the principal sum secured by the mortgage had been demanded. Moreover, it was noted that it was not open to the Court to consider the adequacy of the particulars pleaded in the absence of cogent affidavit evidence from the defendant.

Comment

The Court agreed that it is implicit in a claim pursuant to s.62(7) of the Registration of Title Act, 1964 that the plaintiff alleges that the principal sum secured by the mortgage has become due. Costello J noted that while it might be preferable to refer to same in the pleading, the omitted details were within the knowledge of the defendants and therefore the pleading was sufficient. On that basis the Court held that the special indorsement of claim satisfied the requirements of Order 4 rule 4.

In considering the particular facts of this case, the Court went a step further by holding that the express indorsement of the plaintiff’s affidavit in the special summons itself made good any omission from the indorsement of claim. The Court was satisfied that both defendants knew fully the particulars of the claim they were required to meet, from both the special indorsement of claim and the plaintiff’s affidavit.

Please click here for link to the full judgment.

[1] Permanent TSB plc formerly Irish Life and Permanent plc -v- Keane & anor [2018] IEHC 263