A plenary summons served on the King’s Inns by a solicitor claiming for breach of contract, has been set aside in the High Court, due to the fact that it was served outside of the 12-month period prescribed by Order 8, Rule 1 of the Rules of the Superior Courts.
Also discharging an unqualified appearance by a law firm acting on behalf of the King’s Inns, Mr Justice Denis McDonald was satisfied that this appearance was a mistake, but that although no prejudice had been suffered by the plaintiff solicitor, he was entitled to all costs arising from it.
Solicitor Peter Downey completed the Barrister-at-Law degree course at the King’s Inns in 2010; having paid fees of €12,330, passed exams and assessments, and “…eaten the requisite number of dinners at the King’s Inns”.
In October 2016, Mr Downey initiated proceedings claiming that the Council of the King’s Inns, the Honorable Society of King’s Inns, and the Education Committee of King’s Inns were in breach of contract with him as a consequence of their refusal to admit him to the Degree of Barrister-at-Law. Mr Downey argued that notwithstanding him being a solicitor, he was entitled to be conferred with the Degree of Barrister-at-Law, and that there was nothing to prevent the defendants from awarding him the degree.
The Plenary Summons was issued on 4 October 2016, therefore it was necessary to serve the Summons by 3 October 2017. However, the Summons was not presented to An Post until 4 October 2017; and evidence sworn on behalf of the Defendants was that the Summons did not reach the defendants until 9 October 2017.
According to Order 121, Rule 3, the service by post of any document which is authorised to be served by post is deemed to have been effected at the time at which the document would be delivered in the ordinary course of post.
Stating that it was “difficult to understand” why it took so long to be delivered, Mr Justice McDonald said that the date for these purposes lay somewhere between 5-9 October 2017. However, Justice McDonald said that it was clear more than 12 months had passed, therefore the Summons could no longer be said to have been in force unless renewed by Order of the Court as per Order 8, Rule 1 and Baulk v. Irish National Insurance Co. Ltd.
On 6 November 2017, an unqualified appearance was entered to the Plenary Summons in this case on behalf of the defendants by Crowley Millar Solicitors. Mr Justice McDonald explained that the appearance referred to an incorrect form of summons and to an incorrect date of service – but that ultimately nothing turned on this error.
Application to the High Court
In the present application, the defendants sought:
- An Order pursuant to the inherent jurisdiction of the Court discharging the appearance entered on behalf of the Defendants by Crowley Millar Solicitors, on 6 November 2017; and
- An Order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside service of the Plenary Summons on the defendants for failure to serve within 12 months from the date of issue.
Discharging the unqualified appearance would enable the defendants to pursue the application to set aside the service of the Summons. Pursuant to Order 12, Rule 26, it would not be open to the defendants to make any application unless the unqualified appearance entered on their behalf by Crowley Millar was discharged or set aside. Mr Justice McDonald was satisfied that this position was confirmed in Sheldon v Brown Bayley’s Steelworks Ltd, and Transportstyrelson v. Ryanair Limited  IEHC 226.
Mr Justice McDonald was satisfied that there was sufficient evidence from, inter alia, email correspondence to conclude that there was a mistake made by Crowley Millar, and that it was clear that a decision had already been made to bring an application under Order 12, Rule 26 to set aside the service of the plenary summons.
Considering prejudice to Mr Downey, Mr Justice McDonald accepted that Mr Downey was aware of the defendants’ intentions within 4 weeks of the unqualified appearance – and that this was not sufficient to give rise to any prejudice. However, Mr Justice McDonald was satisfied that Mr Downey had been “put to the expense of dealing with the present application arising as a consequence of a mistake to which [he] did not contribute in any way”.
Discharging the appearance entered on behalf of the defendants by Crowley Millar, Mr Justice McDonald said that he was of the opinion that Mr Downey should be entitled to all costs arising from the mistake.
It followed from granting the order discharging the appearance that the summons should be set aside. Granting the Order pursuant to Order 12, Rule 26, Mr Justice McDonald was satisfied that the summons was served outside the 12 month period prescribed by Order 8, Rule 1, and where no application was made to date to renew the summons.
- by Seosamh Gráinséir for Irish Legal News