Supreme Court: Couple involved in conspiracy case against the State lose appeal

About this case:

• Judgment:
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The couple submitted that the High Court judge was incorrect to strike out their motion for judgment in default of defence, however Ms Justice Finlay Geoghegan stated that since the defence had been delivered prior to the second motion was heard, the High Court judge’s order was in accordance with the Rules of the Superior Courts, and consistent with the administration of justice.

Factual and Procedural Background

In March 2008, Kevin and Karen Tracey issued plenary summons against the State defendants arising out of alleged wrongs connected with a District Court hearing in May 2006.

In June 2009, pursuant to O.27 r. 9 of the Rules, the plaintiffs issued a 21 day warning letter in relation to a proposed application for judgment in default of defence.

No defence was delivered, and on the 2nd November 2009, the High Court (Lavan J.) made an order by consent that the defendants have “four weeks from the date hereof for delivery of a Defence (or such further time as may be agreed upon by the plaintiff in writing) and pay the plaintiffs’ costs”.

Again, no defence was delivered, and on the 14th December 2009, the plaintiffs issued a second motion seeking judgment in default of defence. This was done without serving a 21 day warning letter.

Meanwhile, prior to the service of the said notice of motion, a defence was delivered on the 18th January 2010.

In the High Court in February 2010, Lavan J made an order striking out the motion for judgment in default of defence, which had been issued by the plaintiff’s in December 2009.

Justice Geoghegan explained that this was the second motion for judgment in default of defence issued by the plaintiffs in these proceedings.

Further background facts relating to Mr and Mrs Tracey’s various actions alleging “conspiracy and collusion of malicious prosecution and abuse of the legal process” against the State defendants have been described in previous judgments from the High Court and the Supreme Court.

Supreme Court

The plaintiffs contended that Lavan J was in error, submitting that he was bound by the terms of O.27, r.8(1) of the Rules of the Superior Courts then applicable to grant judgment in favour of the plaintiffs against the defendants.

The State Defendants submitted that as the defence was delivered in advance of the hearing of the plaintiffs’ motion on the 22nd February 2010, the trial judge did not have jurisdiction to grant judgment in default of defence pursuant to O.27, rules 8 and 9 of the Superior Courts Rules, and correctly struck out the motion.

Justice Geoghegan explained that the dispute related to the proper interpretation of O.27, r.8 of the Rules of the Superior Courts, which had to be considered in the context of rule 9.

Under r.8, if a defendant being bound to deliver a defence does not do so within the time allowed, then the plaintiff may “subject to the provisions of rule 9” set down the action on motion for judgment.

In accordance with r.9, a motion for judgment in default of defence in certain actions (including the plaintiffs), may not be served unless the warning letter with consent to the late delivery of defence within 21 days from the date of the letter is served.

Although the failure of the plaintiffs to serve a 21 day warning letter was not the basis upon which Lavan J struck out the notice of motion, Justice Geoghegan was satisfied that r.9 applied to a second motion for judgment in default of defence.

According to r.8(1), the Court is to give judgment against the defendant unless “the Court is satisfied that special circumstances… exist which explain and justify the failure” to deliver a defence.

The express jurisdiction is clearly applicable to “a continuing failure by a defendant to deliver a defence” – and Justice Geoghegan stated that the alternatives under r.8(1) on a second application for judgment in default of defence “make no sense where a defence has already been delivered”.

Justice Geoghegan stated that this interpretation was further confirmed by the fact that a plaintiff’s right to apply under r.8 is subject to r.9. In this regard - it was clear from r.9(2), that it is only where the defence is not delivered within the further 21 days, that a plaintiff may issue and serve a notice of motion.

R.9(3) gives to a defendant a further period even after service of a second motion to deliver a defence and avoid the hearing of the notice of motion.

The primary purpose of rules 8 and 9 of O.27 are to secure the delivery of a defence and it is only where a defendant still fails to deliver a defence by the time of the hearing of the second motion for judgment that the Court is given jurisdiction to grant judgment against the defaulting defendant.

Considering Kennane v. Mackey 24 L.R.Ir. 495, Justice Geoghegan stated “it is long established that there is nothing in the rules of court which prevents a defendant delivering a defence before judgment albeit outside of the time permitted by the rules or by an order of the Court”.

As such, delivery of a defence even after service of a second motion but before the hearing of the motion and application for judgment was permissible.

Adding that this interpretation was consistent with the administration of justice in accordance with the constitutional imperative of fair procedures, the Supreme Court upheld the order of Lavan J, and dismissed Mr and Mrs Tracey’s appeal.