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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Waldron -v- Herring & ors [2013] IEHC 294 (28 June 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H294.html Cite as: [2013] IEHC 294, [2013] 3 IR 323, [2014] 1 ILRM 62 |
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Judgment Title: Waldron -v- Herring & ors Neutral Citation: [2013] IEHC 294 High Court Record Number: 2011 2644 P Date of Delivery: 28/06/2013 Court: High Court Composition of Court: Judgment by: Edwards J. Status of Judgment: Approved | ||||||
Neutral Citation Number: [2013] IEHC 294 THE HIGH COURT Record Number: 2011/2644P Between TONY WALDRON PLAINTIFF -AND-
ANDREW HERRING, STEPHEN MULLEN, SLIGO HAULAGE & DISTRIBUTION LIMITED AND TOMMY MULLEN TRADING AS MULLEN EXPRESS TRANSPORT DEFENDANTS JUDGMENT of Mr. Justice Edwards delivered on the 28th day of June 2013 Introduction: The application is made pursuant to O. 15 r. 2; alternatively pursuant to O. 15, r. 13 of the Rules of the Superior Courts. The motion was brought before the Master of the High Court in the first instance, and the Master refused the application. The matter now comes before me by way of an appeal against the Master’s said order. Background to the application: The plaintiff commenced the proceedings herein by a plenary summons issued on the 22nd March, 2011. He has since delivered a statement of claim. The action is a negligence action in which plaintiff claims damages against the defendants jointly and severally for the damage caused to his building. The first, second and third named defendants are sued as being concerned with the first incident on the 10th July, 2008. The first named defendant is sued as the driver, and the second and/or third named defendants are sued as the owners, of the lorry that was in collision with his building on that date. The fourth named defendant is sued as being concerned with the second incident on the 1st December, 2008. He is sued as the owner of the lorry that was in collision with his building on that date. The common denominator in relation to the two accidents, which would normally result in separate proceedings being issued, is that the same building was damaged. It may be inferred from the fact that conjoined proceedings have been issued that some lack of clarity exists or potentially exists as to the degree of damage caused in each incident by the alleged concurrent (or perhaps, more correctly, successive) wrongdoers, and that it is anticipated that the trial judge may be required to attribute damage proportionately as between the defendants on the basis of the evidence adduced before him. If that be the case then the plaintiff was in order to constitute his proceedings in the manner in which he has done so. The circumstances giving rise to the bank’s interest in the proceedings are as follows. The plaintiff had borrowed a substantial sum of money from Irish Life & Permanent plc (now renamed as Permanent tsb plc (i.e. the bank)), and in November, 2008 a charge was registered as a burden on the plaintiff’s said folio “for present and future advances repayable with interest” in favour of Irish Life & Permanent plc. Subsequent to the accidents described above, and the issue of the proceedings herein, the plaintiff, having run into financial difficulty in common with many other people in this country, was sued by the bank and had a substantial judgment recorded against him. The bank sought, successfully, to enforce its security and obtained an order for possession of the property in folio 33182F from Roscommon Circuit Court on the 22nd March, 2011. That order was duly perfected on the 13th April, 2011, and the bank secured actual possession on the 25th August, 2011. Therefore it is now full legal owner in actual possession of the property. At the time at which the plaintiff commenced the proceedings herein he had not actually repaired the damage caused in the two accidents with which the proceedings are concerned. Indeed, it is entirely reasonable in the circumstances outlined to infer that he simply could not afford to do so. Accordingly, when the bank acquired ownership of the property it was still in a damaged state. Moreover, it was not just in need of being repaired at some point. On the contrary, it was considered to be in a dangerous state and so urgently in need of repair. As a result of this Roscommon County Council served a Dangerous Buildings Notice on the bank who then duly arranged for the necessary repairs to be carried out. Understandably, having incurred a substantial repair bill, the bank would now like to recover the costs of doing so. The purported assignment of the plaintiff’s right of action to the bank The letter of the 24th August, 2012, was used to ground the motion before the Master but, unsurprisingly and, I believe, correctly, the Master took the view that it did not give the bank sufficient standing to allow it to be joined as a plaintiff, and that what was required was a valid assignment of the plaintiff’s cause of action in favour of the bank. However, things have moved on since the Master dismissed the application on the 16th October, 2012. The bank has now reverted to the plaintiff and has persuaded the plaintiff to effect a purported assignment of his right of action against the defendants to it. Once again, it appears that the plaintiff was willing to co-operate and he executed a document, on which reliance is placed before this Court, on the 27th November, 2012. The said document was then in turn executed by the bank’s agent on the 7th December, 2012. The document is in the following terms:- “THE HIGH COURT Record Number: 2011/2644P BETWEEN TONY WALDRON PLAINTIFF -AND-
ANDREW HERRING, STEPHEN MULLEN, SLIGO HAULAGE & DISTRIBUTION LIMITED AND TOMMY MULLEN TRADING AS MULLEN EXPRESS TRANSPORT DEFENDANTS ASSIGNMENT BY TONY WALDRON OF THE HEREIN CHOSE IN ACTION TO THE PERMANENT TSB PLC I, Tony Waldron hereby declare that I no longer wish to act as Plaintiff in the above entitled proceedings and so do hereby assign my right to take this action as Plaintiff in the above entitled proceedings to Permanent tsb Plc as of the 4th day of October 2012.
This assignment entitles Permanent tsb Plc to prosecute this action as Plaintiff and to recover all damages due from the Defendants for the damage caused by the Defendants to the property, the subject matter of these proceedings and to recover all costs of the proceedings including my costs. Without prejudice to this assignment Permanent tsb Plc agrees to discharge the costs incurred by me in respect of these proceedings as per the letter from John C. O’Donnell & Sons solicitors for Permanent tsb Plc dated the 4th October 2012 to O'Dea & Company Solicitors who act on my behalf.
To: Axa Legal Services Solicitors for the First, Second and Third named Defendant PO Box 111 Wolfe Tone House Wolfe Tone Street Dublin 1
To: Ennis & Associates Solicitors for the Fourth Defendant 3rd Floor Merchants House 27-30 Merchants Quay Dublin 8” The defendants’ objections The defendants contend that neither O. 15, r. 2, nor O. 15, r. 13 contemplates, or allows for, the joinder of a plaintiff in the circumstances in which the bank seeks to be so joined in the present case. It is suggested that if the bank has, as it suggests, taken a valid assignment of the plaintiff’s right of action that assignment only entitles it to institute separate proceedings of its own and that it does not entitle it to “insinuate itself into proceedings which have already been issued and which are before the Court”. Moreover, it is further contended that in any event the purported assignment is invalid for want of consideration (inter alia); the solicitor for the first, second and third named defendants going so far as to suggest that it represents an attempt “to allow the plaintiff to pursue what is in effect in the nature of a subrogated claim” against the defendants, and describing it as a “champertous arrangement”. The validity of the purported assignment Common law courts and equity courts were fused together by the Judicature Act, and thereafter equitable rules (i.e. those developed in the equity courts) were said to prevail over common law rules. Even today, courts distinguish between common law and equitable rules. An assignment which fails to comply with statutory requirements is not necessarily invalid, for it may take effect as a perfectly good equitable assignment. Section 28(6) of the Judicature Act provides that an absolute assignment by the assignor of any debt or other legal chose in action can pass the legal right to the debt or chose in action to the assignee. Four main conditions require to be satisfied for the purposes of s. 28(6), as confirmed recently by the High Court in O’Rourke v. Considine [2011] IEHC 191 (Unreported, High Court, Finlay Geogheghan J., 10th May, 2011):-
Second, there must be “absolute assignment” meaning that the assignor must not retain an interest in the subject matter of the assignment. Thus, assignment of part of a debt, assignment by way of charge, and conditional assignments are not covered by section 28(6) of the 1877 Act. Third, the assignment must be in writing by the assignor. Fourth, the debtor must be given express notice in writing of the assignment. A statutory assignment does not need valuable consideration (i.e. any form of payment) to be valid. The assignee can then sue the debtor in their own name, without joining the assignor as a party to the action.
In equity, an assignment of an existing debt does not need valuable consideration to be valid (Law Society of Ireland v. O’Malley [1999] 1 I.R. 162). Consideration may be necessary to support an assignment of a future debt, or where the assignor merely promises to make the assignment in the future. Further, there is no need in equity to give notice of the assignment to the debtor, although it is recommended to prevent the debtor paying the assignor, and to give the assignee priority over other assignees. If the assignee brings an action against the debtor in such circumstances the assignor is joined as a co-claimant if he is willing to cooperate with the assignee, and as a co-defendant if he is not, for example, if he wishes to dispute the validity of the assignment. An equitable assignor must be a party to a suit, whereas a statutory assignee can sue the debtor without joining the assignor as a party to the action. The debtor can rely on any defences he would have had against the assignor at the time when he received notice of the assignment, and an assignee cannot recover more than the assignor could have done if there was no assignment. The Court has carefully considered the purported assignment document and has concluded that it meets all of the requirements for the valid assignment of a chose in action, in this instance the plaintiff’s right of action against the defendants, in accordance with s. 28(6) of the Judicature Act. First, it relates to a legal chose in action. Secondly, it is absolute. The plaintiff has retained no right to claim a share in the proceeds of the action, or in costs, nor is the assignment conditional. Moreover, the absolute nature of the assignment will be placed beyond any doubt if, in accordance with the plaintiff’s clear preference, the bank is substituted for him as plaintiff in the action. Thirdly, it is in writing, and fourthly, the defendants have been duly notified. The absence of a valuable consideration is irrelevant. The suggestion that the plaintiff is in reality seeking to pursue a subrogated claim does not stand up to critical analysis. Subrogation is a legal remedy intended to prevent unjust enrichment. It is not a cause of action. This is clear from the judgment of Millet LJ in Boscawen v. Bajwa [1996] 1 WLR 328 who stated, at p. 335:-
The Court also disagrees entirely with the suggestion that there is anything champertous about the arrangement entered into between the plaintiff and the bank. It is clear following Thema International Fund PLC v. HSBC Institutional Trust Services (Ireland) Limited and others [2011] 3 IR 654 that maintenance and champerty still subsist in Irish law. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit. "Champerty" is the maintenance of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer. It is therefore unlawful for a party without a legitimate interest to fund the litigation of another, or to fund litigation in return for a share of the proceeds. However, there is nothing in the circumstances of the present case to suggest that the bank lacks a legitimate interest. Its interest is patently obvious. Moreover, it is not offering to fund the litigation in return for a share in the proceeds. On the contrary, it wants to be joined as a party itself and take over the litigation, and is quite content to release the plaintiff from any further responsibility for maintaining or carrying on the action. The fact that it has agreed to re-imburse the plaintiff for his outlays to date does not in the Court’s view constitute either maintenance or champerty. The applicability of orders 15(2) and 15(13) RSC
It is necessary in the circumstances to consider whether O. 15, r. 13 could apply in the alternative. It provides:-
This Court has considered all of the evidence in this case, in the detailed affidavits and documents exhibited thereto, filed by the parties and opened to it. It has also considered and taken account of two cases to which it was specifically referred by counsel in the course of oral argument, namely Three Rivers District Council & Ors v. Governor and Company of the Bank of England [1996] 1 Q.B. 292 and Fincoriz S.A.S. Di Bruno Tassan Din e C v. Ansbacher and Company Ltd, Arbourfield Ltd and Bruno Tassan Din (Unreported, High Court, Lynch J., 20th March, 1987). In this Court’s view it is entirely appropriate and in order in the circumstances of this case that the bank should be added to the existing proceedings as plaintiff in substitution for the existing plaintiff pursuant to O. 15, r. 13 of the Rules of the Superior Courts, and the Court will so order. The making of such an order is necessary, in the Court’s view, in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the present proceedings. Further, the existing plaintiff is hereby discharged from the proceedings. The Court will further direct that the bank file and serve upon the defendants an amended plenary summons and statement of claim within 21 days from the date of perfection of this Court’s order, and that the defendants be at liberty to file and serve an amended defence within a further period of 21 days from the date of delivery of the bank’s amended plenary summons and statement of claim. Thereafter, normal time limits and pleading and procedural rules in accordance with the Rules of Superior Courts are to apply. The defendant’s costs of the motion herein, and the motion before the Master, and all the costs associated with the re-constitution of the action, including the amendment of the defendants’ pleadings, must in the circumstances be borne by the new plaintiff, i.e., the bank, such costs to be taxed in default of agreement.
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