Practice and Procedure in the Master’s Court
New Practitioners CPD Programme
November 20121
By Tomás Keys BL
_________________________________________________________________________________
1.0
Introduction
1.1
The purpose of this paper is to give an overview of Practice and Procedure in the
Master’s Court and to highlight some of the recent developments in Practice and
Procedure in the Master’s Court including some of the most recent published
decisions by the Master of the High Court.
1.2
As most of you know, on 24th of June 2011 a High Court Notice was issued which
stated that:
“Notices of Motion issued in the Central Office of the High Court seeking an order
for discovery will be allocated return dates before the High Court on Mondays in
term or, in the case of Family Law matters, on Fridays in term.”2
1.3
Prior to the High Court Notice, a large proportion of motions appearing in the List
were motions for discovery. Now that new motions for Discovery are made
returnable before Judges of the High Court, the vast majority of motions that appear
on the Master’s list deal with the area of debt recovery.
1.4
With approximately 90 – 120 cases listed each day before the Master from Tuesday
to Friday during the legal year it is a busy and bustling courtroom. To say there is
standing room only in the Master’s Court at 10:30AM would be somewhat trite.
1.5
On every day, except Wednesday, the Master’s List is split into four distinct sections.
(i) Special Summons
(ii) Motions for Judgment
(iii) Other motions on notice
(iv) Ex Parte Motions
1
The opinions expressed are the authors own and encompass his knowledge of the law as it stands on 1
November 2012. This paper is for CPD and training purposes only and does not constitute legal advice.
2
http://www.courts.ie/legaldiary.nsf/402cd2d8aef66a3680256dc20050231a/9d7e270fd80f9f96802578b8004c1
600?OpenDocument
This paper will deal with each section individually, highlighting the necessary proofs
and what the Master expects from solicitors and barristers.
1.6
The paper will also briefly touch on Cross Examinations and Family matters which are
normally listed on a Wednesday.
2.0
Function of the Master
2.1
The Master’s Court is where many barristers and solicitors get their first experience
of advocacy in the High Court.
2.2
Order 63 of the Rules of the Superior Courts is the main rule which sets out what
orders the Master can make. An order will not be given by the Master of the High
Court if he does not have the power to do so.
2.3
Orders 2 & 37 of the Rules of the Superior Courts deal with the hearing of
proceedings commenced by way of Summary Summons. Appendix A of the Rules of
the Superior Courts gives an example of the form that the Summary Summons
should take. If a Summary Summons has been indorsed with a claim and an
appearance has been entered by the Defendant personally or by a solicitor on behalf
of the Defendant, then the Plaintiff must issue a motion seeking liberty to enter final
judgment if they wish to have judgment entered against the Defendant. This is dealt
with in greater detail below.
2.4
If, however, an appearance has not been entered within 8 days then, in the vast
majority of cases if the claim is for a liquidated sum judgment can be marked against
the Defendant in the Central Office of the High Court without the need for a motion
for liberty to enter final judgment to be brought returnable before the Master. It
should be noted that in cases where a claim for a liquidated sum is brought on foot
of a lease/hire agreement then judgment cannot be entered in the Central Office,
notwithstanding a non-appearance and a motion for liberty to enter final judgment
will always need to be brought.
2.5
Orders 3 & 38 of the Rules of the Superior Courts deal with the hearing of
proceedings commenced by way of Special Summons. All Special Summons matters
are usually returnable before the Master of the High Court at first instance. One of
the functions of the Master is to transfer Special Summons matters to the Judge’s
List once the papers are in order. The Master will not transfer matters until he is
happy that papers are in order
2.6
It should be noted that the Master may, if he sees fit, transfer a matter that is before
him to the Judge’s List whether by his own motion or that of counsel or a solicitor.
This will usually occur where there is a question of law or a dispute of fact before the
court which can only be determined by a Judge of the High Court. Alternatively the
Master may strike out Special Summons Proceedings under Order 38 Rule 9. The
Master also has the power under Order 37 Rule 11 to strike out a claim in a
Summary Summons if it appears to him that the claim could not have been specially
indorsed under Order 2.
2.7
Order 63 Rule 9 of the Rules of the Superior Courts governs an appeal of the
decision of the Master. It states:
“Any party aggrieved by an order, including an order as to costs, made by the
Master may, within six days from the perfecting of the same, or if made ex
parte from notice of the same, or in the case of a refusal from the date of
such refusal, apply to the Court to discharge such order or to make the order
refused.”
The hearing of an appeal of the Master is usually heard on a Monday before a Judge
of the High Court. If it is a Special Summons matter dealing with the recovery of land
or a well charging order then the appeal would be heard in the Chancery Special
Summons list. Other Special Summons appeals are usually listed in the Chancery
List. Summary Summons appeals are heard in the Common Law Motions list.
2.8
If the Master makes a decision that you as a practitioner are unhappy with, it would
not be the wisest course of action to inform him that you are considering an appeal.
To that end it is important that costs are also dealt with after the Master makes an
order.
2.9
Although an adjournment is not technically and order of the Master, it is possible to
appeal the Decision of the Master to adjourn a matter if he has refused to make an
order and instead adjourned the matter. High Court judges have heard a number of
appeals against the Master’s decision to adjourn matters and not transfer them to
the Judge’s List. See the decision of Laffoy J in Stepstone v Fitzell [2012] IEHC 142.
If an appeal of a refusal to transfer is granted then the judge will either deal with the
substantive matter at the same time as the appeal or the matter will be adjourned to
a convenient time to hear the substantive claim. However, there have been
occasions where an appeal against a decision by the Master to adjourn has been
dismissed and the matter has remained in the Master’s list.
2.10
The Master has, in the past, questioned the accuracy of Affidavits which ground
appeal of his decision. On occasion the Master has asked counsel and solicitors to
ensure that the affidavits grounding appeals of his decision correctly reflect what
occurred when the matter was heard before him. The Master has also questioned the
accuracy of what practitioners inform the court when asked by a Judge hearing the
appeal what reasons the Master gave for making the decision which is under appeal.
Practitioners should ensure that an accurate note is taken of the Master’s comments
and reasons which he gives for making a decision. If you are not sure why the
Master has struck something out, ask him to state his reasons so you can take a note
before leaving court.
2.11
Pursuant to Order 63 Rule 9 of the Rules of the Superior Courts the time within
which to bring an appeal against a decision of the Master of the High Court is 6 days
from the perfecting of the order or 6 days from the refusal of the Master of the High
Court to make an order. If you are outside the time for the bringing of the appeal
then a further order must be sought on the notice of motion whereby you seek an
order pursuant to Order 122, Rule 7 of the Rules of the Superior Courts enlarging the
time for the bringing of the appeal.
3.0
Preparation for practitioners and consent matters
3.1
Before the Master takes up his list, orders or adjournments on consent will be dealt
with. Practitioners should note that this is normally done in order of precedence.
Section 7.3(a) of the Code of Conduct for the Bar of Ireland sets out the order of
precedence in Court. Sub sections (iii) and (iv) are most relevant in the Master’s
courts. Section 7.3(a) (iii) states that “Junior Counsel shall take precedence
according to the order of their Call to the Bar save as herafter provided.” 7.3(a) (iv)
states that “In the case of Junior counsel called to the bar after 2 July 1998 and who
do not join the Law Library or commence practice within twelve months of their Call
they shall be required to waive their precedence and to take precedence in order of
their joining the Law Library.” This will affect those of you who have taken more
than one year out after your call. However, there is no hard and fast rule regarding
precedence between solicitors. It would however, be appropriate, to wait until more
senior colleagues have made their applications for adjournments or orders on
consent before proceeding with your own.
3.2
If you are seeking an adjournment on consent, the Master will usually give them but
you may be asked a number of questions by the Master so he can determine what
date the matter should be adjourned to. In the past the Master has asked “How
much money is involved?” (for Summary Summons matters) or “How urgent is the
matter?”.
3.3
Usually you would have received confirmation from the other side that they are
consenting to an adjournment. However, on the off chance that it transpires that the
adjournment was not on consent (and this will become very obvious when counsel or
a solicitor on the other side informs the Master of such) then you should ask for the
matter to take its place in the list or to let it stand in order to speak with your
opposite number and to take further instructions.
3.4
If the parties have agreed to adjourn a matter on consent but they have not agreed
a timeline for the adjournment then the adjournment which is being sought is not
technically on consent and should not be dealt with at the consent stage. Only such
matters where all aspects of the order or adjournment have been agreed between
the parties should be dealt with at the consent stage.
3.5
Although it is rarely an issue, practitioners should always know whether they appear
for the Plaintiff or the Defendant. It can be somewhat embarrassing not knowing the
answer to that question when asked in open court.
3.6
Due to the pressure on the courts lists it is quite unlikely that the Master of the High
Court will grant an adjournment of less than a month unless there is some urgency
to the matter. At the end of October 2012, the default adjournment date for
summary judgment matters was 3/4 legal weeks. If a party insists that the matter is
urgent they may well be asked what the urgency is. Putting pressure on the other
side to agree a settlement is not a sufficient reason to grant a short adjournment. In
fact the Master of the High Court has frowned upon the use of the court lists to
pressurise one side or another. A practitioner may also be asked why, if the matter is
so urgent, can it not be dealt with that very day.
3.7
In the past, if a party was seeking an adjournment on consent for Summary
Summons proceedings the Master would probably have given a shorter adjournment
date for larger sums (>€200,000). However, that is no longer the case and the
Master seeks to give all parties in Summary Summons proceedings the same default
adjournment date whenever possible. Practitioners should also note that even if both
sides agree to a specific length of time for an adjournment, it is always subject to
the discretion of the Master who will take into account the amount of matters which
have been adjourned to the date being sought.
3.8
In summary proceedings where there is consent for an order to be made, the Master
can either deal with an order for judgment on consent or liberty to enter final
judgment on consent. The difference between the two is dealt with under the
Summary Summons section below. If an order on consent is being made in summary
proceedings the amount of money, the interest to be granted (if any) and from what
date the interest should run and at what rate on what sum are all necessary pieces
of information which the Master requires. If there is also consent as to costs, the
order is either: 1) costs, 2) costs with an order for taxation, or 3) costs to be
measured in the sum of a certain amount. Unlike the practice in other High Court
lists the Master will not give an order for “costs to be taxed in default of agreement”.
Practitioners should be clear about what costs order has been consented to. If there
is a letter consenting to judgment or liberty to enter final judgment then check what
the instructions are in relation to costs.
3.9
The Master has said on a number of occasions that it is not for the Court to police
settlement agreements, therefore consent orders which include stays should certain
amounts be paid by a certain date may well not form part of the order. However, it
could be agreed between the parties that the Court order for judgment can be
entered simpliciter, the parties could then agree that the Plaintiff will not enforce
judgment should a repayment schedule be adhered to. The repayment schedule
does not have to form part of the order as it deals with enforcement of a judgment
rather than an order for judgment or liberty to enter final judgment.
3.10
Courts Act interest (or to give it its proper title Interest pursuant to the Debtors
(Ireland) Act 1840) automatically runs from the date judgment is entered, so it will
not form part of the order. However, Section 22 of the Courts Act 1981 allows for the
court to order, at its discretion, the payment of interest between the date when the
cause of action accrued and the date of the judgment. If the Interest sought is
Interest pursuant to Statute it is sometimes referred to as Court Acts Interest.
However Section 22 of the Courts Act 1981 refers to Section 26 of the Debtors
(Ireland) Act 1840 and therefore, Interest pursuant to statute is technically Interest
pursuant to the 1840 Act. The Master has pointed this out to practitioners on a
number of occasions.
3.11
If there is consent for summary proceedings to be transferred to the Judge’s List to
determine whether in fact there is a bona fide defence, the Master will usually only
transfer the matter if all affidavits have been sworn and filed. Only in very
exceptional circumstances will the Master transfer a matter to the Judge’s List while
giving one of the parties liberty to file a further affidavit.
3.12
The Master will not deal with transfers of Special Summons matters to the Judge’s
List on consent at the consent stage. The matter will need to take its place in the list
as the Master checks the papers to ensure that they are all in order and ready to be
transferred.
3.13
If summary proceedings are to be adjourned to plenary hearing on consent then the
Master should be informed as to how long should be given for the filing of a
Statement of Claim and the filing of a Defence. Unlike the Commercial Court, the
Master does not give directions as to the filing of a Notice for Particulars or Replies to
Particulars. The Master has stated on numerous occasions that he does not give
these directions as he is of the view that if the Statement of Claim and Defence are
drafted sufficiently well there should be no need for particulars.
3.14
There are still a small number of Discovery motions which may appear before the
Master as they had issued prior to the High Court notice of June 2011 and they have
been adjourned from time to time since then. If there is a consent to Discovery in
terms of the notice of motion then the Master will need to be informed who is to
swear and how long they should have to swear.
4.0
Special Summons
4.1
First on the Master’s List each day are Special Summons proceedings. Order 38 Rule
1 of the Rules of the Superior Courts states that:
“Every special summons shall be returnable for such day as the Master shall
fix, which, except in such cases where the parties consent to an earlier date,
or where no service is required, shall be not less than seven days from the
date of issue, and shall, where necessary, be served on the parties concerned
at least four days before the return day. An affidavit verifying the claim
indorsed on the summons shall be filed in the Central Office and notice of
such filing shall be given to the parties concerned.”3
4.2
3
The majority of Special Summons matters that appear before the Master are either
for orders for possession, well charging orders or probate / section 117 matters.
Each matter is dealt with below.
Rules of the Superior Courts Order 38 Rule 1
4.3
If the Plaintiff has been unable to serve the Defendant(s) then the Plaintiff will need
to apply for a new return date. Even though there will be no contest to this
application the Master normally does not deal with these at the consent stage as
there is technically no consent because the other party or parties are not subject to
the jurisdiction of the courts until they have been properly served.
4.4
Unlike matters in the Judge’s List, there are no hearings for the sitting of the court.
If no appearance has been entered by the Defendant(s) the party moving the
application should ask for the Defendant(s) to be called only when the case is
mentioned by the Registrar. In possession matters where there is a tenant, the
tenant of the property will also need to be called as they will need to have been
served. The Master in the past has asked that the exact address not be given for the
calling of a tenant. The Master’s registrar will then ask in open court if there is any
appearance by or on behalf of the Defendants and the tenants (where appropriate).
4.5
If counsel, a solicitor or the Defendant appears in person there is usually no need to
prove service of the summons. However, if there is no one in attendance for the
Defendant but an appearance has been entered by the Solicitors for the Defendant
then the matter should be put to second call as it is possible that the practitioner is
elsewhere. If a personal appearance has been entered and there is no appearance at
first call the Master will usually allow the moving party to proceed. In cases where
there is a solicitor on record and if, at second call, there is still nobody in court then
the matter can proceed. The Master usually tries to deal with second call before
lunch but if it is to take more than five minutes or the list is moving slowly he may
decide that second call matters would be more appropriately dealt with after lunch at
2:30PM.
4.6
Service of a summons is dealt with in Order 9 of the Rules of the Superior Courts. If
there is no appearance entered on the part of the Defendant, the Plaintiff will need
to prove service. This is done by way of opening the Affidavit of Service which has
been sworn by the summons server. The Affidavit of Service should record the time
and date of service of the summons and any grounding affidavit. Practitioners should
check that the case name and record number of the summons is recorded correctly
on the affidavit of service. In matters dealing with the recovery of land an averment
pursuant to Order 9 Rule 14 is necessary:
“Every affidavit of service of a summons in other actions for recovery of land,
shall state that the deponent does not know of and does not believe that
there is any person, other than those who have been served, in the actual
possession or in receipt of the rents and profits of the land sought to be
recovered, or any part thereof, and the said statement shall be verified by the
affidavit of the plaintiff or of one of the plaintiffs, or of the solicitor for the
plaintiff.”4
4
Rules of the Superior Courts Order 9 Rule 14
If the Affidavit of service does not have this averment or if it contains an error on the
face of the affidavit and if the Master states that the papers are not in order then an
adjournment should be sought.
4.7
In the Master’s written decision in AIB v Collins (Unreported, Master Honohan 16
November 2011) delivered on 16 December 2011, the Master commented that Order
9 Rule 14 averment may pose difficulties as it has turned out on a number of
occasions that there is a tenant in the property.
4.8
If the Plaintiff has obtained an order for substituted service of the Summons prior to
the matter appearing in the Master’s List, this order should be opened to the Court
when dealing with service. An Affidavit of service will also need to be opened to the
court. Practitioners should ensure that the correct address is recorded in the Order.
If not, it will be necessary to adjourn the matter and to make an Ex Parte application
before a Judge of the High Court for an amendment of the order for substituted
service under the slip rule. See Order 28 Rule 11. If possible the application to
amend under the slip rule should be made before the same Judge who gave the
original order.
4.9
For Special Summons matters where the Plaintiff is seeking an order for possession
and the instructions are to proceed, the application which is made in front of the
Master is to seek to transfer the matter to the Judge’s List. (i.e. the Chancery Special
Summons List). It is not a motion to transfer. The Master has at times corrected
practitioners when they say they have a motion to transfer.
4.10
Once the Master is satisfied with service, the moving party will need to open the
affidavit grounding the summons. It is good practice that the means of knowledge
clause in a grounding affidavit if sworn by an authorised employee or official on the
part of the Plaintiff contains an averment that the deponent has authority to swear
on behalf of the Plaintiff. Amongst the proofs required are, inter alia, the facility
letter (the letter setting out the details of the financial product being offered by the
lending institution), acceptance of same by the Defendant, the mortgaging or
charging of the lands by the Defendant to the Plaintiff, registration of such mortgage
or charge, advancement of monies by the Plaintiff to the Defendant, the breach of
the covenant, letter of formal demand for full repayment and a letter of request for
vacant possession. Furthermore, if it is a family home, and the relief sought is an
order for possession on foot of a legal mortgage then the Plaintiff will need to swear
an affidavit of compliance with the Central Bank Code of Conduct on mortgage
arrears (see the judgment of Laffoy J. in Stepstone v Fitzell [2012] IEHC 142).
Details of the code of conduct on mortgage arrears can be found at
www.centralbank.ie
4.11
If the application to transfer the matter is being opposed by the other side, the
Master will normally give the Defendant an opportunity to file a replying affidavit. If
counsel appears for the Defendant but solicitors have not yet come on record, as a
matter of professional courtesy the matter will usually be adjourned to allow for
solicitors to enter an appearance. In determining whether or not to grant an
adjournment the Master will weigh up whether there is any prejudice to either side
should an adjournment be granted or not. It would be quite useful for practitioners
to observe their colleagues seeking and resisting adjournments to get a better
understanding of how the Master approaches contested adjournment applications.
The amount of time that the other side have had to take instructions may well be a
determining factor on where the prejudice lies.
4.12
Practitioners should be aware of the effect of the recent judgment of Dunne J in
Start Mortgages v Gunn. [2011] IEHC 275. The judgment deals with orders for
possession of registered land and what effect the repeal of Section 62(7) of the
Registration of Title Act, 1967. The ramifications of the judgment are set out in a
recent article by Robert Kearns BL in the Bar Review Volume 17, Issue 3 (June
2012). The main conclusions of the judgment are summarised by Dunne J at page
29 where she summarises the impact of her judgment:
“1. Proceedings commenced prior to the 1st December 2009 can be
continued after that date.
2. Proceedings can be instituted after that date provided that the lender has
acquired the right to apply for an under pursuant to s. 62 (7) by the 1st
December, 2009.
3. A lender has not [acquired] the right to apply for an order pursuant to s.
62 (7) if the principal monies secured by the mortgage have not become due.
4. The principal monies do not become due until default or certain other
events have occurred and demand for repayment of the principal monies
have been made.
5. In any case in which demand is made for repayment of the principal sums
due after the 1st December 2009, the lender has neither an acquired or
accrued right to apply for an order pursuant to s. 62(7) and consequently the
provisions of s. 27 of the 2005 Act will not save a lender.”5
On the final page of the judgment, Dunne J. found that a mortgagee can only seek
an order for possession under the Land and Conveyancing Law Reform Act 2009 if
the mortgage was created after 1 December 2009.
4.13
5
Although the judgment is currently under appeal to the Supreme Court and there
have been calls for the lacuna in the law to be addressed through legislation no
action has been taken by the legislature to address the lacuna. Practitioners should
be aware that the Master will strike out proceedings which fall foul of this judgment
if practitioners seek to proceed and have the matter transferred to the Judge’s list.
Some financial institutions have decided to pursue the well charging route if the legal
mortgage is caught by Start v Gunn and the Master is allowing Plaintiffs to apply to
amend the Indorsement of Claim in cases which are affected.
Ibid at page 29
4.14
Laffoy J delivered a recent judgment in August in GE Capital Woodchester Home
Loans Ltd -V- Reade [2012] IEHC 363 which explores what proofs are necessary in
relation to the sending of the demand letter. In that case Laffoy J held that the
Plaintiff was not entitled to an order for possession as the full monies did not become
due and owing prior to 1 December 2009. The concluding paragraphs of the
judgment are worth noting:
“…the unfortunate fact is that the second defendant remains personally liable
under the covenant in the Charge, jointly and severally with the first
defendant, for the secured monies. Moreover, the secured monies remain
charged on the Property, and, subject to compliance with the provisions of
the Charge, it is open to the plaintiff to decide to enforce its security by a sale
through the Court in a mortgage suit, which, as a matter of probability, is
likely to be more protracted and expensive than a sale out of court.
Since these proceedings were commenced on 1st April, 2010, the amount of
the secured monies has increased and it continues to increase. The
protracted and costly legal process, of which this judgment is the outcome,
which generated four hundred and fifty five pages of affidavits and exhibits
and involved numerous listings both in the Master's Court and in the High
Court, has not been in the interest of either the plaintiff or the defendants.
There must be a better way of addressing mortgage arrears, particularly in
relation to principal private dwellings, which would be in the interest of all the
parties concerned.”
It should be noted that the decision is under appeal and that the Judge has been
asked to hear further legal submissions on whether the findings are confined to the
specific circumstances of the case or whether they have a more general application.
4.15
Another type of matter which usually appears in the Special Summons List before the
Master are proceedings where the Plaintiff is seeking well charging orders. In Laffoy
J.’s judgment above she refers to this type of proceeding as a mortgage suit. The
practice and procedures regarding service are the same as above except that Order 9
Rule 14 does not apply. However, the Master has stated that if one of the alternative
reliefs is an order for possession it may well fall under Order 9 Rule 14. If the matter
is transferred to the Judge’s List, similarly to orders for possession, the matter will be
transferred to the Chancery Special Summons List.
4.16
The proofs required in well charging proceedings are, inter alia, a certified copy of an
order for judgment in a particular sum against the Defendant, compliance with
section 116 of the land and Conveyancing Law Reform Act 2009 where an application
is made to the Property Registration Authority to register the judgment as a charge
against the folio, the registration of such judgment mortgage and the principal sum
and interest sums now due and owing.
4.17
Practitioners should familiarise themselves with the recent Supreme Court judgment
of Finnegan J in Irwin v Deasy [2011] IESC 15 which sets out the powers that the
court has in making orders in relation to judgment mortgages. The Master may well
ask whether the proceedings in front of him fall foul of the Supreme Court judgment.
4.18
Another type of matter that appears in the Special Summons section of the Master’s
List deals with Section 117 disputes. Section 117 matters refer to section 117 of the
Succession Act 1965 which allows the child of a testator to apply to court for an
order that provision be made for the child out of the testators estate if the court is of
the opinion that the testator has failed in his moral duty to make provision for the
child in accordance with his means. If parties wish to adjourn the matter, the Master
may well explore the prejudice against one party or the other as each additional
adjournment will add to the costs of the proceedings which may decrease the value
of the estate.
5.0
Summary Summons
5.1
The next section of the Master’s List deals with motions for liberty to enter final
judgment. These matters are brought on foot of a summary summons and are
brought by way of motion on notice to the other side. Motions for liberty to enter
final judgment which are on consent are dealt with at paragraph 3.5 above. This
section will deal with contested applications and where an appearance has been
entered by the Defendant. It should be noted that if no appearance has been
entered by the Defendant in summary proceedings where the Plaintiff is seeking
judgment in a liquidated sum then the Plaintiff can enter judgment in the Central
office against the Defendant except in the case of hire-purchase agreements and
money lender cases (note that a bank is not a money lender for the purposes of the
legislation and the Rules and they can enter judgment in the office in default of an
appearance where a liquidated sum is sought).
5.2
As summary proceedings normally only appear in the Master’s List when an
appearance has been entered, practitioners will have to show proof of service of the
notice of motion by way of an affidavit of service of the Notice of Motion. A copy of
the entry of an appearance should be included in the papers that are handed into the
Master. The Master will compare the address on the appearance to that in the
affidavit of service and these should match.
5.3
Practitioners may hear other colleagues or the Master refer to a D&F affidavit in
summary proceedings. This type of affidavit arises out of the Master’s written
Decision in D&F Health Partnership Limited v Limerick Private Hospital (Unreported,
Master Honohan, 30 October 2009 [2009] JILL-HC 103001). The case deals with the
discretion of the Master to allow for an adjournment in summary proceedings. In his
decision, Master Honohan highlights the balance that must be struck when a
Defendant seeks and adjournment but a plaintiff wants the matter to proceed:
“The decision on the application will turn on the balance of prejudice. For a
plaintiff resisting a defendant's adjournment application, there is the
unarguable prejudice of delay. But it may be nominal if he is already secured.
Or it may be disingenuous for him to press the point if he has himself delayed
significantly between the accrual of the cause of action and the issue of the
proceedings or, if it is a Summary summons, between entry of Appearance
and the issuing of the Motion for Liberty to enter final judgment. For a
defendant, if he can convince the Court that it is his client's intention to file a
replying affidavit (or otherwise attend to whatever is outstanding), the
prejudice in being refused an adjournment is of the due process variety and
is rarely gainsaid. At the other extreme, a lawyer who seeks adjournment
because he cannot get instructions of any sort must accept that the litigation
should not be delayed on this account.”
5.4
The Master has likened D&F adjournments to the protection the court affords in an
Examinership. In a way the debtor is given a reprieve against the creditor seeking
judgment and one final opportunity to try and deal with the matter. If the Defendant
seeks an adjournment to allow him/her to put on affidavit how he/she intends to
deal with the debt and whether or not there is some recovery plan then this will be
referred to as a D&F affidavit. On the other hand if the Defendant is seeking the
adjournment to allow for a replying affidavit to be filed which may set out a Defence
then this is referred to as a due process application for an adjournment. If the
Defendant has been given ample time but new solicitors have only come on record
and seek an adjournment then this is usually referred to as a professional courtesy
adjournment. In deciding whether to grant such an adjournment the Master has
indicated that he must determine if there is a prejudice to either party and that he
must take into account the jurisprudence of the European Court of Human Rights
and Article 6 of the European Convention on Human Rights which holds that
everyone is entitled to a fair hearing. The Master discusses the Article 6 implications
in detail in AIB v Collins referred to above.
5.5
Order 37 Rule 1 provides that in Summary proceedings for a debt, the motion on
notice should be grounded on affidavit and the deponent shall, inter alia, swear that
“the plaintiff is entitled to the relief claimed and stating that in the belief of the
deponent there is no defence to the action.” In his decision dated 5 March 2010 in
Taffetsauffer and Jones Limited v Pierse Contracting Ltd (Unreported, Master
Honohan, 5 March 2010 [2010] JILL-HC 030501) the Master explores whether a
failure to make an averment on affidavit that there is no defence, is fatal to the
motion for liberty to enter final judgment. At page 4 of his decision Master Honohan
sets out the discretion that he has to waive non-compliance with the Rules of the
Superior Courts:
“Consequently, the Master, just like a Judge, can waive non-compliance in
the interests of justice. There is no Supreme Court judgment or dictum to the
effect that any particular Rule must be complied with by the High Court
(Judge or Master), just as there is no judgment or dictum that any particular,
specified non-compliance with the Rules must be overlooked. In Taylor v.
Clonmel Healthcare Ltd [2004] 1 I.R. 169 , the Supreme Court considered
that non compliance could be overlooked, but did not, in so ruling, set aside,
quash or cancel the Rule not complied with. The High Court has not been
ordered to overlook non-compliance in any case. Each application, rule
compliant or not, will continue to be dealt with as justice requires.”
He concludes:
“The court must look at the justice dimension in any given situation. Happily,
in this instance, the purposive interpretation of the Rules (qua statute) and
the discretionary, justice driven, dynamic updating of the Rule (qua judicial
precedent), produce the same result.
The latter urges that the plaintiff's access to summary judgment should not
be delayed. If he is entitled to judgment it is an injustice to delay it, and no
prejudice for a defendant without a defence if the court does not insist on the
plaintiff's compliance with the technicality.
The former interpretation recognises the redundancy of an averment of the
sort omitted, given that the defendant has filed a replying affidavit. Whether
the plaintiff is of the view that the defendant has a bona fide defence is no
longer important: the court will judge that for itself on the basis of the
replying affidavit now filed. As for legislative intention and the "mischief" rule;
this averment was designed, long, long ago, to give the court some measure
of comfort from an officer of the court (who could be relied on not to
mislead) in the situation on where no replying affidavit was filed and the
court was in the dark. There was an onus placed on the plaintiff's solicitor to
look at both sides disinterestedly before signing off on the averment but once
the defendant files a replying affidavit such an averment is no longer relied
on by the court, and is surplus.”
To summarise, the Master will only dispense with the need for such an averment if it
is in the interests of justice to do so. Notwithstanding the Master’s discretion in such
matters it is preferable to ensure that such an averment if made on affidavit if true.
See Order 124 of the Rules of the Superior Courts.
5.6
In the Master’s recent decision of AIB v Collins the Master was highly critical of the
practice of swearing such averments when in fact there may be a bona fide Defence.
If a Defendant seeks to defend the summary proceedings then it is necessary to file
a replying affidavit. The replying affidavit should set out what the purported defence
will be. Once all of the Affidavits have been sworn the Master can review them and
make a determination as to whether, taken at its high watermark, there is an actual
dispute. If so, then the Master will transfer the matter to the Judge’s List. The Judge
hearing the Common Law Motion List can only at that stage make a determination
that there is an arguable defence and if that determination is made by the Judge the
matter will be adjourned to plenary hearing. On the other hand the Judge may
decide on having read all of the affidavits and submissions by Counsel or Solicitors
for both sides that there is in fact no defence and will enter judgment against the
Defendant.
5.7
If it becomes apparent to the Plaintiff that after the filing of the Affidavits the matter
should be dealt with by way of plenary hearing then they can make an application to
adjourn the matter to plenary. The Master can only adjourn to Plenary on consent
but it would usually be in the Defendant’s interests to adjourn a Summary matter to
Plenary due to the amount of time it will take for the matter to come to hearing. It
should be noted that the Master adjourned a summary summons to plenary hearing
in AIB v Collins notwithstanding that the Plaintiff did not consent. This decision was
overturned on appeal by O’Neill J on 30 January 2012 in the Common Law List.
However, the master’s decision in AIB v Collins is useful in that it outlines the
masters views on Summary Summons and the manner in which motions for liberty to
enter final Judgment should run in the Master’s List.
5.8
In the recent decision of the Master in ACC v Heffernan (Unreported, Master
Honohan, 18 October 2012), the Master explored the powers of the Master of the
High Court to strike out a Summary Summons in circumstances where it appears
from the Defendant’s replying affidavit that there is a defence to the proceedings
and at the time when the deponent swore an affidavit grounding the motion for
liberty to enter final judgment, it should have been obvious to the solicitor advising
the deponent that there may well be a defence. At page 2 of his decision the Master
states:
“A plaintiff has no legal or Constitutional right to accelerated procedure just
because the claim is liquidated.”
The Master says at page 6 of his decision that the test that a solicitor should apply
is:
“…whether, on the information available to him at the outset, he does not
see any arguable basis on which the defendant could meet the case. The test
is not whether new facts alleged for the first time by the Defendant ought to
have been predicted by the Plaintiff’s solicitor. Accordingly, only those
averments in a defendant’s affidavit which assert the existence of documents
or a course of conduct of which the Plaintiff must have been aware can be
weighed in the balance when it comes to assessing whether the solicitor’s
professional opinion is demonstrably incorrect.”
In that case, the Master struck out the summons. The matter in relation to costs has
not yet been heard and it remains to be seen whether the master’s decision will be
appealed.
6.0
Other Motions on Notice
6.1
All High Court discovery motions issued after 24 June 2011 are returnable before a
Judge of the High Court on a Monday, or on Fridays in the case of Family Law
matters. However, there are still some discovery applications which will appear in the
Master’s List as they would have issued prior to 24 June 2011 and would have been
adjourned from time to time. The Master still has jurisdiction to hear such motions.
In what appears to be an anomaly, motions to strike a Defence or a Statement of
Claim out for failure to comply with an order for discovery made by a Judge of the
High court can be made returnable before the Master of the High Court.
6.2
Other motions which are usually listed in this section of the Master’s List can include
remitting a High Court matter to the Circuit Court on consent or adopting a Circuit
Court matter to the High Court. If Circuit Court proceedings are to be adopted to the
High Court on consent then the party moving the application should inform the
Master whether pleadings have closed and if there are any monies in court. The
Master may also query what Circuit the case is being adopted from. If High Court
proceedings are to be remitted to the Circuit Court on consent, the party moving
should inform the Master what Circuit and what county within the Circuit the
proceedings should be remitted to.
6.3
Order 63 Rule 1 (6) of the Rules of the Superior Courts deals with the delivery of
interrogatories. It allows the Master to make an order for the delivery of
interrogatories. Practitioners should note the Master’s approach to the delivery of
interrogatories. In his decision in Leahy v Southern Health Board6 Master Honohan
held that such an application would only succeed in rare circumstances.
“Ensuring fair litigation is also the primary yardstick to be applied in
applications for interrogatories. Requiring the respondent to depose to facts
in advance of the trial is a patently unfair departure from the standard time
honoured mode of trial. To persuade the Court to make such an order an
applicant must establish, on affidavit, circumstances of a sort which occur
only rarely, an exception to the pattern of events generally found in litigation.
The terms "special exigency" has been employed to describe such
circumstances.
While an applicant may occasionally experience some little difficulty in
persuading the Court to allow him access to his opponents documents to
enable him to find a missing piece of the factual jigsaw, this difficulty will be
as nothing compared to the mountain he must climb to persuade the Court
that a "special exigency" exists which requires that, in fairness to him, his
opponent should be ordered to go into evidence before the trial of the
action.”
Parties considering bringing such a motion should thoroughly read the Master’s
decision and consider whether in fact a special exigency exists which can meet the
high threshold.
6.4
6
Although the main Order governing amendments of pleadings is Order 28,
applications to amend pleadings on consent are brought before the Master pursuant
to Order 63 Rule 1 (14). Usually these types of applications are brought if there has
been a clerical or typographical mistake. The amendment on the pleadings should be
clear and it is preferable that the amendment is typed. After the Master makes an
Unreported, Master Honohan, 20 April 2005 [2005] IEHC 230
order on consent for a summons to be amended the issue of whether he should
dispense with re-service will need to be dealt with. If the other side is consenting to
the amendment then re-service is usually dispensed with. However, practitioners
should be prepared to make submissions on the issue of whether dispensing with reservice is prejudicial or not to the other side.
7.0
Ex Parte List
7.1
The Master of the High Court usually hears ex parte applications at the end of the
published list and before second call. However, this is not always the case.
Practitioners moving ex parte motions should keep an eye on the progression of the
list throughout the morning. The ex parte matters will be heard in the order that the
ex parte dockets are received by the Master’s Registrar in court. Ex Parte dockets are
usually available to practitioners from the Registrar in court.
7.2
Practitioners should aim to have the ex parte docket and any supporting affidavit
handed into the registrar before the Master starts the ex parte portion of the list and
definitely before 1PM. The Master has on numerous occasions sat past 1PM to finish
first call. Ex parte dockets which are handed up after 1PM may not be handled on
that day due to the pressures on the list
7.3
Order 63 Rule 4 governs which motions may be heard ex parte by the Master. These
motions are as follows:
o
Order 63 Rule 1(1) Any side-bar order other than those mentioned in Order
30 (17) and (18)
o
Order 63 Rule 1(2) Any order which may be made as of course
o
Order 63 Rule 1(3) An order for the appointment of a guardian ad litem of an
infant or person of unsound mind not so found
o
Order 63 Rule 1(4) An order for a statement of the names of persons who
may be co-partners in any firm suing or being sued in an action or matter.
o
Order 63 Rule 1(11) An order on an application for directions as to service in
case of an originating summons not inter partes or as to other procedure in
any action or matter
o
Order 63 Rule 1(15) An order for the correction of clerical errors or errors in
the names of parties in any proceeding, whether on consent or not, but
subject to re-service when not on consent
o
Order 63 Rule 1(16) An order to receive a consent and make the same a rule
of Court where the parties are sui juris
o
Order 63 Rule 1(17) An order under the Bankers Books Evidence Acts, 1879
and 1959
o
Order 63 Rule 1(18) An order for the payment out of Court of funds standing
to the credit of an infant on attaining majority, or (if so authorised by order of
a Judge) for his benefit during minority
o
Order 63 Rule 1(20) An order for the issue, for service outside the
jurisdiction, of a citation to see proceedings in contentious probate matters
o
Order 63 Rule 1(21) An order for the issue of a citation to lodge in Court a
grant of probate or letters of administration
o
Order 63 Rule 1(25) A stop order on moneys or securities in Court
o
Order 63 Rule 1(26) An order for the issue of a subpoena under Order 39,
rule 30
o
Order 63 Rule 1(27) An order for the issue of a citation in matrimonial causes
or matters
7.4
side.
All other orders which the Master may make must be sought on notice to the other
7.5
Practitioners should also note the difference between the substitution of parties in
proceedings and the amendment of pleadings to change the names of parties in
proceedings. The Master has on numerous occasions highlighted the difference
between the two. If the moving party wishes to add or substitute a party then the
application should be brought pursuant to Order 63 Rule 1 (12) on notice to the
other side. The substitution of a party usually occurs where by operation of law or
death the liability or interest of the original party has been transferred to that of the
new party which is being substituted into the proceedings.
7.6
On the other hand, if the names of the parties have been incorrectly spelled due to a
clerical or other error then the correct application to make is an order to amend the
proceedings pursuant to Order 63 Rule 1(15). Once the Master makes such an order
the issue of whether to dispense with re-service will need to be ventilated and the
Master will make such an order if he is satisfied that no prejudice arises to the other
side.
7.7
If the Master refuses to make an order sought ex parte then the party seeking the
order may appeal the refusal as outlined above or may make the application on
another occasion should the Master of the High Court have indicated that the reason
for the refusal is that there was not sufficient evidence on affidavit before him to
make such an order.
8.0
Cross Examination and Family Law
8.1
Every Wednesday the Master’s List includes Cross Examinations, Family Summons
and Family Motions.
8.2
There are numerous methods of execution available to Judgment creditors and one
such method is an order for discovery in aid of execution. Cross examinations in the
Master’s Court arise from orders for discovery in aid of execution and in proceedings
under the Debtors Act (Ireland) 1872. They are governed by Order 42 Rule 36 of the
Rules of the Superior Courts.
8.3
The effect of such an order is that the judgment debtor or director of a company
which judgment has been entered against must swear an affidavit of means and
they are further ordered to attend Court to be cross examined on the contents of
their affidavit or if there is anything missing from the affidavit.
8.4
To get an order directing a judgment debtor to attend for cross examination the
judgment creditor will, at first instance, have to get an order ex parte from a Judge
of the High Court pursuant to Order 42 Rule 36. Usually this is done in the Common
Law Ex Parte list on a Monday. The question of whether a judgment creditor can also
get an order at the ex parte stage for a judgment debtor to swear an affidavit of
means was addressed by Clarke J. at page 36 of his judgment in Moorview
Developments Ltd & Ors v First Active Plc [2011] IEHC 117. The judge said that
although it is not expressly provided for in the rule,
“I am more than satisfied that the court has a jurisdiction to order a debtor to
disclose any matters that properly come within the scope of a cross
examination under O. 42, r. 36 in advance of the hearing so as to enable the
hearing to be focused on issues of real inquiry.”
Once the order has been perfected, the judgment creditor will have to apply ex parte
before the Master of the High court to get a date for the cross examination. A copy
of the Order from the Judge of the High Court should be exhibited in the grounding
affidavit of the ex parte motion before the Master.
8.5
Once the Master has assigned a date for hearing, the expectation is that the matter
will be heard on that date. Should either side wish to adjourn for any reason and the
other side consent to it, the Master should be informed in advance of the date fixed
for the cross examination. The Master has on occasion commented that the time
allocated for the hearing of cross examinations is at a premium and parties should
not just expect an adjournment just by asking for it. If the matter proceeds before
the Master, the moving party should indicate to the Master in advance how long
he/she thinks the matter should take so the Master can manage the remainder of the
list.
8.6
The Family matters listed for Wednesdays are usually listed under the headings
Family Summons and Family Motions. Family matters are usually listed not before
11:30Am in the legal diary. The Master will usually interrupt the normal list at ort
about 11:30 to deal with the family matters. Practitioners should observe the in
camera nature of the proceedings by only referring to the initials of the parties and
record number if mentioning the case in open court. If there is consent for an
adjournment, this should be moved at the time allocated for Family matters and not
at the general consent stage. If for any reason, details are required by the Master in
a family matter, as is sometimes the case even where the application is on consent,
practitioners can ask to mention the case in camera at the end of the family portion
list.
8.7
All remaining non-consent family law matters in the Master's list will be dealt with by
the Master circa 12:30/ 12:45pm before the Master rises for lunch. Consistent with
the in camera rule, each of these matters will be taken individually before the Master
with only the practitioners and parties immediately involved being permitted to
remain in the courtroom. All other persons will be asked to leave the courtroom at
this time. Practitioners who are waiting for their case to be reached in the family law
list should wait immediately outside the courtroom door so that they are ready when
their case is called and so as to avoid having the Court wait for them.
8.8
Family Summons’ are listed before the Master at first instance because all Judicial
Separation and Divorce proceedings commence by way of Special Summons. As
noted above the Master will not transfer a Special Summons to the Judges List or the
Directions List until he is satisfied that all papers are in order. For Family matters this
means that the Applicant should file a grounding affidavit, an affidavit of means and
an affidavit of welfare if necessary. The respondent should at the very least enter an
appearance per the Family Law High Court direction and file an affidavit of means
and an affidavit of welfare if necessary. If the respondent wishes to contest anything
that has been averred to in the grounding affidavit then a replying affidavit will also
be necessary. If the Master is satisfied that all the papers are in order, he will
transfer the Summons to the Judge’s List or the Directions List, both of which are
heard by a Judge of the High Court who deals with the Family lists on Fridays.
8.9
If the papers need to be opened for any reason (usually non agreement of the
parties as to whether the matter is ready to be transferred) the Master will clear the
court and the parties can make their submissions. Family motions are also held in
camera unless there is consent to adjourn the matter.
9.0
Points to Remember
It’s spelled “judgment” not “judgement”.
The Master can only enter judgment if the Defendant consents to same, otherwise
the order is liberty to enter final judgment (a further step will need to be taken by
the solicitor to mark judgment in the Central Office).
The formalities of the High Court should be observed.
Read your papers and familiarise yourself with the key points of the case even if it is
only a consent matter.
If you are unsure of something, ask a colleague before going in to court, if you are
unsure of something in court and it looks like the matter might be struck out due to
papers not being in order you should seek to let the matter stand to take further
instructions or seek an adjournment to get the papers in order.
Accuracy of language is important and the Master may well pick up on inaccurate
language. If you are applying for an adjournment it is an application for an
adjournment, not a motion for an adjournment. If you are seeking to have a matter
transferred to the Judge’s List, you are seeking a transfer of the Summons, you are
not bringing a motion to transfer or applying to transfer.
Know the difference between a new return date and a new adjourned date.
Don’t state something as fact when you are unsure.
If you have some free time sit in the Master’s Court and observe the way in which
the Master’s list is run and how practitioners seek to have matter transferred, move
motions and move applications.
The titles of the affidavits should be correct. A grounding affidavit for a motion
seeking liberty to enter final judgment is called a “Grounding Affidavit” and not an
“Affidavit of Debt” despite what some text books say. A Defendant files a “replying
affidavit” and if the Plaintiff wishes to respond the title of the second affidavit is a
“supplemental affidavit.”
If there are multiple Plaintiffs or Defendants ensure that the notice of motion and
affidavits uses the singular and/or plural where appropriate.
Exhibit separate documents under separate exhibit headings (A1, A2, A3 etc.), rather
than all documents under 1 exhibit heading with separate tabs.
Letters of demand and facility letters are not exhibited. It is the copies of those letter
which are exhibited.
ENDS