|Danske Bank A/S t/a Danske Bank -v- Meagher|
| IESC 38|
Supreme Court Record Number:
High Court Record Number:
|2013 176 S & 2013 23 COM|
Date of Delivery:
Composition of Court:
|Fennelly J., Laffoy J., Dunne J.|
Link to Judgment
Fennelly J., Dunne J.
THE SUPREME COURT
[Appeal No. 487/13]
DANSKE BANK A/S
TRADING AS DANSKE BANK
Judgment of Ms. Justice Laffoy delivered on 1st April, 2014
Background to appeal
1. The High Court proceedings in which the order of the High Court (Peart J.) made on 8th November, 2013 under appeal was made (Record No. 2013 No. 176S) were initiated by a summary summons which issued on 18th January, 2013, which was addressed to “The Defendant, John Meagher, of Milltown Ashbourne in the County of Meath”. In the endorsement of claim on the summary summons the plaintiff/respondent claimed an order for summary judgment against the defendant in the sum of €6,984,826.48 being the total debt due by the appellant to the respondent on 2nd January, 2013 on foot of a Facility Letter dated 28th February, 2011 and also interest and costs. Just short of a fortnight before the summary summons was issued, the respondent had appointed Martin Ferris of Ferris & Associates (the Receiver) to be receiver of assets referred to, comprised in and charged by two mortgages granted by the defendant/appellant to National Irish Bank Limited, the respondent’s predecessor in title, the first of which was dated 5th January, 2000 (the 2000 Mortgage).
2. On 31st January, 2013, on an ex parte application made to the High Court, it was ordered by the High Court (Kelly J.) that the respondent be at liberty to effect service of the summary summons and, inter alia, the notice of motion and the grounding affidavit of Donal Scully, the Property Credit Manager of the respondent, sworn on 30th January, 2013 on the appellant “by ordinary pre-paid post addressed to him at his residence at Milltown, Ashbourne, County Meath”. The ex parte application was grounded on the grounding affidavit of Mr. Scully and also on an affidavit sworn on 30th January, 2013 by Tom Ryan, who described himself as “a summons server”. Mr. Ryan made the following averments in his affidavit:
As there is a conflict of evidence as to what happened on that occasion, it is necessary to consider the fourth attempt in some detail. Mr. Ryan averred that on his way to “the Defendant’s House” he met a postman who was delivering post in the area, who confirmed that a John Meagher lived at the property which Mr. Ryan understood to be “the Defendant’s House”. When he arrived at “the Defendant’s House”, the gates were open. He pressed the button on the intercom and he pressed the bell but there was no reply. He then walked through the open gates into the courtyard area. He was about to knock on the front door of the house when it was opened by a young woman. He asked if he could speak to the appellant, and the young woman’s response was that he was not there. He asked the young woman if the house was the appellant’s house. He specifically averred that she confirmed that it was, but that he was not there at the moment. He asked her if she was related to the appellant and what her name was. He specifically averred that she said she was the appellant’s niece but that she declined to give her name. He told the appellant’s niece that he had some documents for the appellant. He specifically averred that she said that he “should call back some time next week”. He then left the property.
(a) that he had been informed by the respondent’s solicitors that the appellant resided at Milltown, Ashbourne, County Meath, which he subsequently referred to as “the Defendant’s House”;
(b) that he first attempted to serve the appellant with the summary summons by attending at “the Defendant’s House” on Monday, 21st January, 2013 at 3.30pm, but the gates in the fencing surrounding the property were closed and there was no response when he pressed the intercom button and the bell adjacent to the gates several times;
(c) that his second attempt to serve the appellant was on 22nd January, 2013, but again there was no response when he pressed the intercom button and the bell;
(d) that his third attempt to serve the defendant was on the evening of 24th January, 2013 and again there was no response when he pressed the intercom button and the bell;
(e) that his fourth attempt to serve the defendant was on 25th January, 2013 at 9.45am.
3. On 25th February, 2013 the respondent’s notice of motion dated 31st January, 2013 seeking orders –
was before the High Court (Commercial Division). Amongst the documents before the High Court on that day was an affidavit of Ian Bell, a solicitor in the firm of MacCarthy Johnston, the solicitors on record for the respondent , sworn on 15th February, 2013, which proved that on 7th February, 2013, pursuant to the order made by Kelly J. on 31st January, 2013 (the Substituted Service Order), he had served the appellant by ordinary pre-paid post to the address at Milltown, Ashbourne, County Meath with copies of the relevant documents. By order of 25th February, 2013 (the Summary Judgment Order) made by Kelly J., in which it was recited that there was no attendance in Court by or on behalf of the appellant and that the Court was satisfied as to service on the appellant, it was ordered that the proceedings be entered into the Commercial List and it was further ordered and adjudged that the respondent recover as against the appellant the sum of €6,984,826.48 together with the costs of the proceedings when taxed and ascertained to include all reserved costs.
4. Subsequent to the making of the Summary Judgment Order, further orders were made in the High Court by Kelly J., namely:
Both orders dated 13th May, 2013 recited that there was no attendance in Court by or on behalf of the appellant on that day and that the Court was satisfied as to service on the appellant of the notice of motion and other documents on foot of which the orders were made.
(a) by an order made on 13th May, 2013 –
(i) a garnishee order nisi that the sum of €70,000 due by Dublin City Council to the appellant be attached to answer the Summary Judgment Order was made and it was ordered that the matter be listed on 17th June, 2013 to show cause why Dublin City Council should not pay to the plaintiff the said sum of €70,000, and
(ii) it was further ordered that Ian Bell, solicitor, be appointed receiver by way of equitable execution to receive on behalf of the respondent all other monies that might be due to the appellant from Dublin City Council in proceedings pending in the High Court by the appellant against Dublin City Council and Northern Area Health Board (High Court Record No. 2005 No. 336S) (the Appellant’s 2005 Proceedings); and
(b) by a further order dated 13th May, 2013, it was ordered –
(i) that the defendant make discovery of certain documents outlined within four weeks of the date of the order;
(ii) that the appellant attend Court to be orally examined on 10th July, 2013; and
(iii) that the defendant produce to the Court and to the solicitors for the respondent two weeks prior to the conduct of the examination certain documents specified.
5. Each of the orders dated 13th May, 2013 provided that service was to be effected on the appellant in the same way as he had been served to that date, including service of the second order with a penal endorsement thereon. What precipitated the next application made ex parte to the High Court was that on 6th June, 2013 there was returned to Mr. Bell in person the copy documents, including the copies of the two orders made on 13th May, 2013, which he had served by post to the appellant at the address at Milltown, Ashbourne, County Meath together with a letter from a Mr. Edward Cox, which was attached to the front of the envelopes. It is clear on the evidence that Edward Cox is married to Cora Cox who is a sister of the appellant. The letter signed by Mr. Cox was dated 4th June, 2013 and it stated:
6. The ex parte application was made on 11th June, 2013 on behalf of the respondent. As a result, it was ordered by the High Court (Kelly J.) that all papers in connection with the proceedings that were required to be served on the appellant be thenceforth be served on CCK Law Firm (CCK) at 66, Fitzwilliam Square, Dublin, 2, including copies of the orders made on 13th May, 2013 with the necessary penal endorsement. The mode of service directed was that they be served by hand during the course of the business day on CCK. In an affidavit sworn on 10th June, 2013 to ground the ex parte application, Mr. Bell had averred that he had received a telephone call from Mark O’Callaghan, a solicitor with CCK, on 5th June, 2013 and that Mr. O’Callaghan had informed him that he was acting for the appellant in the Appellant’s 2005 Proceedings. He also averred that from a review of the online High Court database, it appeared that a summons had issued on 5th June, 2013 in proceedings between the appellant and Dublin City Council (Record No. 2013/5642P) and that CCK had been identified as the solicitors on record for the appellant in those proceedings. Despite the terms of the order of 11th June, 2013, CCK adopted the attitude that they had not been instructed by the appellant in these proceedings and that they did not have authority to accept service of documents on matters for which they were not instructed. While that attitude gave rise to criticism of CCK in the judgment of Peart J. referred to later, on the hearing of the appeal it was common case that this aspect of the matter is peripheral to the real issues in the case.
7. There is some lack of clarity on the papers before this Court, as the judgment of Peart J. indicates was also the case in the High Court, in relation to what happened next in the High Court. Apparently, on 17th June, 2013 the respondent was given leave to bring a motion for the attachment and committal of the appellant, which was returnable for 24th June, 2013. In any event, by order of the High Court (Kelly J.) made on 24th June, 2013, having recited –
it was ordered that the defendant be attached and be brought to Court at the first available opportunity to show cause why he should not be committed to prison for failure to comply with the order of 13th May, 2013.
(a) that the two letters dated 21st June, 2013 received by the solicitors for the respondent from CCK, which are not before this Court but which I assume contained the explanation why CCK considered they could not accept service, had been read,
(b) that there had been no attendance in Court by or on behalf of the appellant, and
(c) that the Court was satisfied that the appellant had been duly served with all the relevant documents and that he had chosen to ignore the Commercial Division of the Court whilst conducting litigation in another division of the Court and that prima facie he was in breach of the order of the Court made on 13th May, 2013,
8. There is also lack of clarity on the papers before this Court as to what happened subsequently. As recorded by Peart J. in his judgment, the appellant seems to have appeared in the High Court before Kelly J. on 10th July, 2013, but it is unclear as to what happened on that date, except that the appellant stated subsequently that he handed his passport into Court. The matter appears to have been adjourned and on 17th July, 2013 the appellant was given leave to issue the motion which was the subject of the judgment and order of Peart J. and is the subject of this appeal.
The motion in the High Court
9. In the notice of motion which was filed in the High Court on 28th August, 2013 and which was returnable for 23rd September, 2013, the appellant sought the following reliefs:
The notice of motion stated that the application would be grounded on the affidavits of the appellant, Lauren Cox and Alan Dilloughery.
(a) that the Summary Judgment Order be set aside;
(b) that all subsequent orders, reference being made to orders made on 13th May, 2013, 11th June, 2013, 17th June, 2013, 24th June, 2013 and 26th June, 2013, be set aside; and
(c) that the €70,000 paid to the respondent by Dublin City Council pursuant to the order made on 13th May, 2013 and made absolute on 17th June, 2013, be paid to the appellant forthwith.
The affidavit evidence on the motion
10. Some of the affidavits on the motion were sworn and filed prior to the filing of the notice of motion in the Central Office of the High Court. However, I am satisfied that nothing turns on that. I propose outlining the contents of the affidavits in the chronological order in which they were filed.
Appellant’s grounding affidavit
11. In his affidavit sworn on 24th July, 2013, the appellant averred that he was seeking to have the Summary Judgment Order set aside on the basis that he “had neither service nor notice nor knowledge” of the proceedings at the time the said judgment was given and that it was obtained by misrepresentation in relation to his notice of the proceedings. The facts relevant to that assertion averred to by the appellant were as follows:
At the commencement of the affidavit the appellant’s address was given as an apartment in Cobh, County Cork. It was filed in the High Court on 25th July, 2013.
(a) that he did not live and had never lived at Milltown, Ashbourne, County Meath, that he had never owned that property, and that it could never be truthfully described as his “house”;
(b) that he left the jurisdiction on or about 27th December, 2012 and returned on 5th March, 2013 and that the judgment was sought and obtained in that period and no papers or other information were received by him while he was abroad;
(c) that he did not receive any correspondence from the respondent “shortly prior to the commencement of these proceedings” at the address in Milltown, Ashbourne, County Meath and that correspondence from the respondent to him had been addressed to him at Charlemont Street, Dublin;
(d) the description of the premises at Milltown, Ashbourne, County Meath as “the Defendant’s House” was incorrect and that he had concluded from the affidavit of Mr. Ryan and an affidavit of Mr. Bell that the house visited by Mr. Ryan belonged to his sister and her husband;
(e) that he had never met the Receiver, although he did receive phone calls in or about 21st December, 2012 from a Mr. O’Callaghan, whom he believed worked for the Receiver, who rang him when he was abroad, but did not identify himself as a receiver or a person acting for a receiver, but said he would like to meet him in relation to the respondent but did not tell him what he wanted to discuss with him;
(f) that he told Mr. O’Callaghan that, if it was urgent, he should contact or send any materials he had for the attention of his accountant in Cork, whose name and address he gave to Mr. O’Callaghan;
(g) that he told Mr. O’Callaghan that he would be visiting his sister and her family in Ashbourne, County Meath, but he did not represent her home as his address, or a place at which he could or should be contacted;
(h) that he had no knowledge of any order of the Court which placed an obligation on him to do any act or to appear before it until he was informed that an order for his “arrest” had been made by a friend who had learned of it through newspaper reports;
(i) that he first saw the relevant orders when they were handed to him on 11th July, 2013 by direction of the Court; and
(j) that any orders requiring action by him were never conveyed to him and he had no knowledge of them and, as soon as he learned that an order was made, he immediately took steps to return to the jurisdiction at great cost and inconvenience.
Affidavit of Lauren Cox
12. Lauren Cox, who swore an affidavit on 24th July, 2013, is the niece of the appellant and the daughter of Edward Cox and Cora Cox. The purpose of her affidavit was to contradict the averments in Mr. Ryan’s affidavit sworn on 30th January, 2013 referred to at para. 2 above. Lauren Cox averred that the house at Milltown, Ashbourne, County Meath belongs to her parents, Edward Cox and Cora Cox, and it had been her home and she had lived there for about sixteen years. She averred that the appellant, her uncle, had been “a very occasional visitor” to her home, mostly around Christmas. She had no recollection of the appellant ever having stayed there. As regards her encounter with Mr. Ryan on 25th January, 2013, Lauren Cox averred that she had never confirmed that the house was the appellant’s house. She was never asked if the house at Milltown, Ashbourne, County Meath was the appellant’s house. The man who called to the house that day never gave his name. He said that he was a friend of the appellant and that he had something for him. He carried an envelope or document. He asked whether he could leave it with her. She responded by telling him there was no point in leaving it there with her because she had no idea when the appellant might next be there. She averred that she did not say to the man who called that he should call back sometime next week. She did not refuse to give her name. She was not asked for her name. Lauren Cox averred that it was wholly incorrect that she confirmed or gave any impression that her home was the appellant’s house or that he resided there.
Affidavit of Mr. Bell
Each of the Annual Returns was for the financial year which coincided with the calendar year 2011. Each recorded the “Presenter details” or “Person to whom queries can be addressed” as John Meagher, whose address was recorded as Milltown, Ashbourne, County Meath. The appellant was also recorded as a member of each of the companies with an address at Milltown, Ashbourne, County Meath, as secretary of one of the companies and as a director of the other company with a “Residential address” at Milltown, Ashbourne, County Meath. Both forms were signed by the appellant and by Cora Cox. The other document exhibited by Mr. Bell was a copy of the 2000 Mortgage at the commencement of which the mortgagor was named as “John Meagher of Milltown, Ashbourne, County Meath”.
13. Chronologically, the next affidavit in the sequence was an affidavit sworn by Mr. Bell on 26th July, 2013. He exhibited a number of documents which he contended clearly demonstrated the appellant’s address as being Milltown, Ashbourne, County Meath. The documents included two Forms B1 (Annual Returns) filed in the Companies Registration Office (CRO) on 26th November, 2012 in respect of two companies, namely –
14. In his affidavit Mr. Bell averred that he had been informed by a solicitor with Dublin City Council that the Appellant’s 2005 Proceedings had commenced in the High Court on 12th March, 2013 and that the appellant had attended Court and had given evidence in those proceedings on 12th , 13th and 14th March, 2013. Further, he had been informed that the solicitor in question had informed senior counsel for Dublin City Council to bring to the attention of senior counsel acting for the appellant that judgment had been obtained by the respondent against the appellant on 25th February, 2013, which had occurred.
Affidavit of Henry O’Callaghan
15. The Mr. O’Callaghan referred to in the appellant’s affidavit sworn on 24th July, 2013 was Henry O’Callaghan, a certified chartered accountant employed by Ferris & Associates as a Manager in December 2012. Mr. O’Callaghan swore an affidavit on 26th July, 2013 which was filed on behalf of the respondent on that day. Mr. O’Callaghan averred that following the appointment of the Receiver he called the appellant on a mobile number at approximately 2.30pm on 20th December, 2012. At the start of the call he introduced himself to the appellant and said he was calling from the offices of Ferris & Associates and he then informed the appellant that the Receiver had been appointed. Mr. O’Callaghan averred that during the course of the telephone call he asked the appellant for an e-mail address and a postal address so that formal notification of the appointment of the Receiver could be sent to him together with some further documentation relating to the properties the subject of the receivership. Mr. O’Callaghan averred that the appellant provided him with the postal address of Milltown, Ashbourne, County Meath and with an e-mail address which is set out in the affidavit. Mr. O’Callaghan averred that shortly after the telephone conversation, on the same day, he sent an e-mail to the e-mail address which the appellant had provided and he attached various documents thereto. He advised in the e-mail that the attached documents had been “issued separately by post to the advised address of Milltown, Ashbourne, County Meath”. He received no response to that e-mail and he was not informed that post would not reach the appellant at the address indicated. On 21st December, 2012 he notified Mr. Scully of the e-mail address and the postal address which had been furnished to him by the appellant. Mr. O’Callaghan averred that further calls were made to the appellant to arrange a suitable time and date for a meeting with the Receiver. On 23rd December, 2012 the appellant informed him that he was not prepared to meet the Receiver until such time as he had reviewed the Receiver’s appointment. Further calls to the appellant on 2nd, 3rd and 4th January, 2013 “were diverted to a Ms. Cora Cox”.
16. As regards the appellant’s averment that he advised Mr. O’Callaghan that he should contact his accountant in Cork, Mr. O’Callaghan averred that the appellant’s evidence was not correct. Mr. O’Callaghan averred that the appellant provided him with the name of a person whom he said was his adviser. That person was Mr. Alan Dilloughery. The appellant advised Mr. O’Callaghan that Mr. Dilloughery would contact him. He received a telephone call from Mr. Dilloughery on 21st December, 2012 at approximately 3.40pm. Mr. Dilloughery was unable to provide any information of any substance regarding the properties over which the Receiver had been appointed and he was not in a position to provide a date or time for a meeting with the appellant. Mr. Dilloughery advised Mr. O’Callaghan that he should contact the appellant directly. At no time had Mr. Dilloughery told him that he should send any documentation or communications in relation to the appellant to Mr. Dilloughery, which he would not have been in a position to do in the absence of a signed letter of authority from the appellant authorising him to do so.
Affidavit of Alan Dilloughery
17. Mr. Dilloughery swore a short affidavit on 21st August, 2013, which was filed in the High Court on 26th August, 2013 on behalf of the appellant. In that affidavit Mr. Dilloughery averred that he had been requested by the appellant to contact Mr. O’Callaghan. In relation to the telephone conversation which occurred on the afternoon of 21st December, 2012, Mr. Dilloughery did not recall suggesting to Mr. O’Callaghan that he should contact the appellant directly. He indicated to Mr. O’Callaghan that he would travel to Dublin and make himself available to meet with him on Monday, 24th December, 2012 should that be necessary. Mr. O’Callaghan did not take up his offer for a meeting. He recalled no discussion or mention of documentation by Mr. O’Callaghan with him.
Appellant’s second affidavit
18. Continuing with the affidavits in chronological order, the appellant swore a second affidavit on 22nd August, 2013, which was filed on 26th August, 2013. In that affidavit the appellant reiterated that he had never owned the house at Milltown, Ashbourne, County Meath or resided in it. He had been on occasion a visitor to the house. He did not give that house as an address for postal correspondence to Mr. O’Callaghan or anybody else at any time since December 2013. He specifically averred that at no time did he receive any of the mail sent or alleged to have been sent on behalf of the respondent to that address. He had no arrangement with his niece or her family for forwarding of post delivered to their house. He had not visited the house since 25th December, 2012 and any correspondence that might have been sent there was not received by him. He specifically averred that he received no notice of these proceedings. He explained the reference to the address on the Forms B1 filed in the CRO on the basis that it was the same address that was given when the companies were incorporated in 2003, that it was his address for the conduct of the business of the companies and that the companies had not, in fact, traded since in or about 2007. As regards the address on the 2000 Mortgage, it was never intended as a statement of where his private residence was. The appellant specifically averred that he did not give Mr. O’Callaghan “any postal address in County Meath”. He further averred that his senior counsel in the Appellant’s 2005 Proceedings had not conveyed to him what was “alleged to have been a message for him” from the solicitor for Dublin City Council. The appellant reiterated that Mr. O’Callaghan did not mention the appointment of the Receiver to him during the call on 20th December, 2012.
Second affidavits of Mr. Bell and Mr. O’Callaghan
19. Two further affidavits were filed on behalf of the respondent. One was a further affidavit sworn by Mr. Bell on 3rd September, 2013, which does not elaborate on the factual position as between the parties prior to the making of the Summary Judgment Order.
20. The other was an affidavit sworn by Mr. O’Callaghan on 2nd September, 2013 in which he reiterated that, in the course of the telephone call on 20th December, 2012, he had informed the appellant of the appointment of a receiver and that the appellant had provided him with a postal address of Milltown, Ashbourne, County Meath and had given him the e-mail address that he set out in his first affidavit referred to at 15 above. Mr. O’Callaghan clarified that the letter dated 20th December, 2012 addressed to the appellant at Milltown, Ashbourne, County Meath, which enclosed a copy of the deed of appointment of the Receiver, was sent on 20th December, 2012 to that address.
21. In outlining the contents of the affidavits filed on behalf of both sides, the emphasis has been on the facts disclosed as to what transpired between the parties and their respective agents up to the time the Summary Judgment Order was made on 25th February, 2013, rather than on other material contained in the affidavits, much of which is of an argumentative nature.
The hearing in the High Court
22. In the course of the hearing in the High Court on 23rd September, 2013, Peart J. acceded to an application by counsel for the appellant for liberty to amend the notice of motion filed on 28th August, 2013 to include a relief in respect of the setting aside of the Substituted Service Order. As Peart J. pointed out in his judgment (at para. 50), if that order was set aside, then the Summary Judgment Order must also be set aside, since no proper service of the summons would have been effected.
23. As is disclosed in the order of the Court made on 8th November, 2013, in addition to the various affidavits outlined above, the Court heard the oral evidence of the appellant. As I understand it, notice to cross-examine the appellant was served on behalf of the respondent, but no notice was served by either side to cross-examine any of the other deponents. A very unsatisfactory aspect of this appeal is that there is no transcript available to this Court of the oral evidence given by the appellant in the High Court. On the hearing of the appeal this Court was informed that there was no stenographer present in Court when the appellant was testifying, although, of course, there would have been a digital audio recording of the evidence. This Court was informed by counsel for the appellant that the appellant had applied to the High Court for a transcript with the implicit consent of the respondent and that the position adopted in the High Court was that, if the Supreme Court considered a transcript was necessary, it would be ordered that a transcript be produced. The hearing of the appeal proceeded without the views of this Court being canvassed.
The judgment of the High Court
24. The judgment of the High Court was delivered on 4th October, 2013.
25. As I have already recorded, Peart J. stated in his judgment that, if the Substituted Service Order was to be set aside, the Summary Judgment Order would also have to be set aside. However, he also stated that the application to set aside the Summary Judgment Order required to be considered even if the Court was satisfied that the Substituted Service Order should not be set aside. In that event the onus would be on the appellant to satisfy the Court that because of a mistake on his part, or that he was taken by surprise, which deprived him of an opportunity to defend the claim, the Court should set aside the judgment, but consideration of those matters would be predicated on the fact that, as far as the plaintiff was concerned, the judgment was obtained regularly.
26. In addressing the issue as to whether the Substituted Service Order should be set aside, Peart J. stated (at para. 52):
Peart J. also stated that, while the appellant denied that he gave the County Meath address to Mr. O’Callaghan, Mr. O’Callaghan’s evidence was that he did and it was corroborated by the fact that, when he e-mailed Mr. Scully on the following day, 21st December, 2012, Mr. O’Callaghan specifically stated that the appellant had given that address to him. Peart J. stated that he did not accept that Mr. O’Callaghan would have said that, if he had not been so informed by the appellant. Peart J. interpreted the evidence as to what the postman told Mr. Ryan on 25th January, 2013 as that the postman was indicating by his response that the address was the address to which he was used to delivering post addressed to the appellant. Peart J. observed (at para. 57) that it was remarkable that nowhere in his affidavits had the appellant taken the trouble to say where he does in fact reside, or what address the documents ought to have been sent to in order that they might reach him. He noted that the appellant had given an apartment in Cobh, County Cork as his address in the first affidavit sworn by him on 24th July, 2013, while on 5th June, 2013, when he commenced his new High Court proceedings against Dublin City Council, he had given premises in Harold’s Cross Road in Dublin 6W as his address.
“I have serious concerns as to the [appellant’s] credibility when he says that he never became aware of these proceedings until June 2013. He is a man who has used his sister and brother-in-law’s address for business purposes at least as far back as January 2000. He has as recently as November 2012 filed documents in the Companies Registration Office stating that his address is Milltown, Ashbourne, County Meath. It beggars belief in circumstances where his sister is also a signatory to those documents filed in the Companies Registration Office, that she and her brother would not have discussed and agreed the fact that he was giving her address as his own. In those circumstances the Court cannot conclude simply on the basis of the defendant’s denials that any post which arrives at her house addressed to the defendant would not be brought to his attention, forwarded to him. It must be assumed that a sensible and workable arrangement was put in place.”
27. Peart J. set out his conclusion on the issue as to whether the Substituted Service Order should be set aside as follows (at para. 58):
28. On the second issue which he considered, namely, whether the Summary Judgment Order should be set aside, Peart J. stated that, as far back as 1889, and the decision in Farden v. Richter 1889 23 Q.B.D. 124, it has been held that, where a judgment is regular, “it is an inflexible rule that the judgment could not be set aside without an affidavit by the defendant suggesting that he had a defence to the plaintiff’s claim”. Having pointed out that the appellant had not set forth an arguable defence to the respondent’s claim, Peart J. stated (at para. 63):
“In my view there is no proper basis for setting aside the order for substituted service. There was a sufficient basis even as set forth in Mr Ryan’s affidavit for the making of the order. Nothing except a bare denial has been put forward by the [appellant]. Put against the evidence that has been sworn to on behalf of the [respondent], his denials sound hollow, even if the affidavit of Lauren Cox is taken into account by way of support. The sworn evidence and documents exhibited on behalf of the [respondent] only serve to persuade me further that the order for substituted service made by Kelly J. was an appropriate order for him to have made, and I see no basis for setting it aside. I refuse that application. It follows that in my view the plaintiff’s judgment was not irregularly obtained.”
For the foregoing reasons, Peart J. refused to set aside the Summary Judgment Order.
“Farden v. Richter [supra] does not rule out that there may be some exceptional circumstance where this otherwise inflexible rule should not be an obstacle to a defendant who seeks to set aside a judgment obtained against him. But there are no such circumstances in this case. The defendant’s mere averment that he had no knowledge of the proceedings before judgment was granted is insufficient in the light of the evidence in this case. Put more bluntly, I do not believe the defendant when he says this.”
29. It is appropriate to record that on the hearing of the appeal, counsel for the respondent made it clear that the respondent has always conceded that, if the appellant wants to defend the claim for summary judgment, the respondent will not resist an application to do so provided that –
The order appealed against and the grounds of appeal
30. The judgment of Peart J. was given effect to in the order dated 8th November, 2013, in which it was ordered that the notice of motion dated 28th August, 2013 on behalf of the appellant be refused and that the respondent recover against the appellant its costs of and incidental to the motion, the costs to be taxed in default of agreement.
31. The grounds of appeal against that order set out in the appellant’s notice of appeal filed on 29th November, 2013 were as follows:
As there was consensus on the hearing of the appeal that the issues which arose in relation to the order for substituted service on CCK made on 11th June, 2013 were peripheral, I consider that it is not necessary to address the ground of appeal advanced on behalf of the appellant that Peart J. misdirected himself in law and on the facts insofar as he gave any weight to the fact that CCK, who had no instructions at the time in the proceedings, had refused to accept service of the proceedings.
(a) that the Substituted Service Order was irregular in law insofar as the requirements of Order 9, rule 2 of the Rules of the Superior Courts (the Rules) were not met, there being no evidence before the Court that the appellant was at that time within the jurisdiction of the Court, and because the appellant was overseas at that time, and because the appellant did not at that or any time reside at Milltown, Ashbourne, County Meath;
(b) that Peart J. erred in law and on the facts insofar as he failed to set aside the Substituted Service Order, when evidence, uncontradicted by the respondent, was put before the Court that at the relevant time the appellant was outside the jurisdiction, and that the appellant had at no time resided at Milltown, Ashbourne, County Meath;
(c) that Peart J. erred in law and on the facts in preferring the evidence that Milltown, Ashbourne, County Meath was the appellant’s residence to (a) the evidence of the appellant himself and (b) the unrebutted evidence of his niece, the long-term occupier of those premises with her parents;
(d) that Peart J. erred in law and on the facts insofar as he found that the appellant had notice of these proceedings prior to June 2013, in that his finding was based on an assumption as to facts which, even if true, did not in fact form any adequate basis for concluding that the appellant had notice of the proceedings prior to the making of the Summary Judgment Order; and
(e) insofar as the evidence on which the Substituted Service Order was made was shown to be false, Peart J. erred in law in effectively placing the burden of proof of the irregularity of the Substituted Service Order on the appellant rather than putting the burden of proof of the regularity thereof on the respondent.
The submissions on behalf of the appellant: outline and discussion
32. The fundamental point advanced on behalf of the appellant was the contention that injustice had been perpetrated on him by the making of orders in the High Court against his interests when he had no chance to respond or defend himself. The appellant’s position was that the Rules reflect the principle that justice requires that no one should be judged before he or she has knowledge of the identity of his accuser, knowledge of the allegation and complaint, and an adequate opportunity to respond. However, in this case, it was submitted that the Rules were not complied with.
33. In particular, counsel for the appellant submitted that Order 9, rule 2 of the Rules was not complied with. That rule provides:
Counsel for the appellant emphasised the words “personally within the jurisdiction” in the second sentence of rule 2 and pointed to the uncontroverted evidence that the appellant left the jurisdiction on or about 27th December, 2012, that he was in the jurisdiction for some days in March but was not otherwise in the jurisdiction at any relevant time up to the end of June 2012. Reference was made to the appellant being in the Far East, which I understand to mean Sri Lanka, while he was out of the jurisdiction. It was further submitted that the premises at Milltown, Ashbourne, County Meath were not the appellant’s “house or place of residence”.
“Service of any summons on the defendant shall, except in the cases in the following rules of this Order specified, be effected by personal service if it be reasonably practicable. Where it shall appear by affidavit that such defendant is personally within the jurisdiction and that due and reasonable diligence has been exercised in endeavouring to effect such personal service, service of such summons may be effected by delivering a copy thereof at the defendant's house or place of residence, or at his or her office, warehouse, counting house, shop, factory, or place of business, to the wife, husband, child, father, mother, brother, or sister of the defendant, or to any servant or clerk of the defendant (the person to whom such copy shall be delivered being of the age of sixteen years or upwards) and showing to such person the original or duplicate original of such summons.”
34. Of course, in this case, the respondent did not rely on the option available under the second sentence of rule 2 to endeavour to effect service on the appellant by serving a connected person. Rather, the respondent invoked Order 10 of the Rules and applied to the High Court for an order for substituted service. Rule 1 of Order 10 provides:
Rule 2 of Order 10 provides:
“If it be made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, or such other service as is prescribed by these Rules, the Court may make an order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise.”
Here, the appellant alleged the irregularity of the Substituted Service Order on two grounds: first, that the facts put before the Court as to where the appellant could be served, and on which the Court acted, were incorrect; and, secondly, that no evidence was put before the Court that the appellant was within the jurisdiction either on 31st January, 2013 or during February 2013.
“Every application to the Court for an order for substituted or other service, or for the substitution for service of notice, shall be supported by an affidavit setting forth the grounds upon which the application is made.”
35. Elaborating on the alleged irregularity, counsel for the appellant submitted that service of the summary summons and the motion for judgment and other relevant documents was not regular, because the Substituted Service Order was not regular because –
It was submitted that service being irregular, the appellant was entitled to have the Summary Judgment Order set aside, unless there was good reason for not so doing. It was acknowledged that a situation where, despite the order for substituted service being based on wrongful facts, the existence of the proceedings and application had come to the knowledge of the litigant the subject of the order for substituted service, who took no action, would constitute circumstances in which the litigant could not seek to have an order made against him set aside. It was submitted that the appellant in this case is not in that position, in that Peart J. made no finding as to when he became aware of the proceedings. However, that submission is not correct, because, as the passage from the judgment of Peart J. quoted at para. 28 above illustrates, Peart J. dismissed what he described as the “mere averment” of the appellant that he had no knowledge of the proceedings before judgment was granted as not being true.
(a) the appellant was outside the jurisdiction,
(b) the premises at Milltown, Ashbourne, County Meath were not his house or place of residence; and
(c) the evidence on the application for substituted service was deficient in that –
36. Counsel for the appellant challenged the correctness of the findings of fact which had been made by Peart J., asserting that they were seriously faulty. It was contended that Peart J. had failed to resolve the conflict of evidence between Mr. Ryan and Lauren Cox and pointed out that the respondent had not sought to cross-examine Lauren Cox. He contended that it was not appropriate for the Court to have found that there must have been a sensible and working arrangement in place between the appellant and his sister, Cora Cox, in relation to the use of the address of Cora Cox as the appellant’s address in filings in the CRO, when there was no evidence of the existence of such an arrangement, or what the arrangement was. The evidence was insubstantial and insufficient to warrant forming a disadvantageous view as against the appellant, he submitted. Given that the appellant testified that he was not within the jurisdiction prior to the making of the Summary Judgment Order and that there was no contra evidence, his counsel contended that the Court was not entitled to conclude that the appellant was telling lies. At no time was there the slightest evidence that the appellant intended to disobey a Court order, he contended. On that last point, there was no suggestion that the appellant left the jurisdiction to avoid service of proceeding on him and, indeed, it was made clear by counsel for the respondent that the respondent was not suggesting otherwise.
37. Turning to the authorities relied on by counsel for the appellant, it is undoubtedly the case, as laid down by the Court of Appeal in Crane & Sons v. Wallis  2 I.R. 411, that the Rules must be strictly complied with in the case of a judgment by default. As O’Brien L.C. stated (at p. 415), the jurisdiction of the Court can only come into existence if the Rules have been complied with. In this case the motion on foot of which the Summary Judgment Order was made sought an order for summary judgment invoking Order 37 of the Rules. Having said that, the courts take a strict approach to compliance with summary summons procedure, as is pointed out in Delany & McGrath on Civil Procedure in the Superior Courts, 3rd Ed., (at para. 26 – 34).
38. The decision of the High Court (Herbert J.) in Heffernan v. Ryan  1 I.R. 32 cited on behalf of the appellant concerned the proper application of the alternative form of service where the defendant is personally within the jurisdiction and due care and diligence was exercised in endeavouring to effect personal service, as provided in the second sentence of rule 2 of Order 9 of the Rules. Counsel for the appellant referred the Court to two aspects of the judgment of Herbert J. The first was his interpretation of the meaning of “place of residence” and “house” in Order 9, rule 2, in relation to which he stated (at para. 22):
The second was the interpretation by Herbert J. of the meaning of “personally within the jurisdiction” in Order 9, rule 2. He stated (at para. 27):
“As used in O. 9, r. 2 of the Rules . . . in my judgment ‘place of residence’ was intended to denote the place where a defendant might be actually living at a particular time, where he ate drank and slept, while ‘house’ was intended to denote his or her dwelling house or permanent abode, the place where he or she was at home. I consider that ‘place of residence’ was intended to cover all sorts of more or less temporary residences inhabited by persons living or working away from their dwelling house, such as hotels, lodging houses, hostels, institutional residences and seasonal residences.”
Neither of those interpretations is of obvious relevance to the application of Order 10.
“The use in O. 9, r. 2 of the word ‘personally’ in my judgment, shows that nothing short of the actual physical presence of the defendant in the jurisdiction at the moment of alternative service under O. 9, r. 2 will suffice.”
39. Counsel for the appellant also relied on two authorities in which judgment was set aside because the Court was not satisfied that the defendant was within the jurisdiction at the time of the alleged service: Tisdall v. Humphrey I.R. 1, C.L. 1, a decision dating from 1867; and Poole v. Stewart (1903) 37 ILTR, in which the earlier decision was followed. Each of those decisions was concerned with whether service purported to be effected pursuant to a provision analogous to Order 9, rule 2 then in force was regular, not with a situation in which an order for substituted service had been obtained from the Court. Incidentally, those decisions have been departed from in recent years in an authority relied on by counsel for the respondent: Royal Bank of Ireland v. Nolan (1958) 92 ILTR 60, in which Dixon J. held that, where an application to set aside a judgment is brought on the basis of an irregularity in service, it is a prerequisite to relief that the defendant swear an affidavit establishing that he did not have notice of the proceedings.
Submissions on behalf of the respondent: outline and discussion
40. Counsel for the respondent’s starting point in addressing the challenge to the Substituted Service Order was the submission that it falls to be considered in the first instance under Order 10, rule 1. In that provision, which as been quoted in para. 34 above, there is no requirement that a defendant is “personally within the jurisdiction” before an order for substituted service may be granted. Counsel submitted that it is sufficient if the plaintiff demonstrates an inability to effect prompt personal service “from any cause”. It was submitted that as a matter of fact, on 31st January, 2013, the High Court (Kelly J.) was satisfied that the respondent was unable to effect prompt personal service on the appellant and exercised the discretion conferred by Order 10, rule 1 and made the Substituted Service Order.
41. Counsel for the respondent also addressed whether the requirement of being personally within the jurisdiction should be imported into Order 10, rule 1. It was submitted that there was no basis for so doing. Reference was made to the commentary in Delany and McGrath (op. cit.) at page 216. In the passage in para. 3 – 23 quoted by counsel for the respondent, the authors state:
The authors elaborate on that in the following passage in which they state that, therefore, it would appear that an order for substituted service can be made where leave to serve outside the jurisdiction has been obtained or, alternatively, at the same time that it is applied for. Counsel for the respondent acknowledged that in certain circumstances, for example, where the defendant is a foreign citizen or has no connection with this jurisdiction, an application to serve proceedings out of the jurisdiction under Order 11 of the Rules might be required as an initial step to seeking the order for substituted service. However, he submitted that such was not the case here because the defendant is an Irish citizen, who had substantial business and property interests within the jurisdiction, carried on business within the jurisdiction, entered into commercial banking facilities within the jurisdiction, and gave Irish resident addresses for himself to the CRO in respect of Irish companies of which he was a director and secretary.
“Unlike Order 9, rule 2 dealing with service on connected persons, Order 10, rule 1 is not confined in its application to situations where the defendant is personally within the jurisdiction.”
42. Counsel for the respondent also relied on the decision of the High Court (Barron J.) in Uwaydah v. Nolan  IEHC 35. However, in my view, that decision does not really advance the respondent’s case. Clearly in that case the service which the defendant sought to set aside and in respect of which the plaintiff sought an order under Order 9, rule 15 of the Rules declaring the service actually effected to be sufficient was service pursuant to the alternative option to personal service on a connected person, as provided for in the second sentence of Order 9, rule 2.
43. Of more assistance to this Court are the submissions which were made by counsel for the respondent as to the principles which apply to the review by this Court on appeal of the evidence which was before Peart J. in the High Court and on the basis of which he determined that service on the appellant was not irregular. The relevant principles are summarised in the judgment of McCarthy J., with whom the other Judges of the Supreme Court concurred, in Hay v. O’Grady  1 I.R. 210. Having quoted Order 58 of the Rules which provides, inter alia, that all appeals to the Supreme Court “shall be by way of re-hearing”, McCarthy J. stated (at p. 216) that this does not mean that the Supreme Court re-hears oral evidence but, rather, the arguments based upon the findings of fact, including arguments that findings are unsupported by evidence, itself a question of law. Having stated that, although the jurisdiction confirmed by Article 34 of the Constitution is, save as there expressed, unlimited, the Supreme Court has, in effect, limited its jurisdiction in the manner detailed in the succession of cases which had been cited in the course of argument in that case. McCarthy J. then (at p. 217) summarised the role of the Supreme Court stating, insofar as is relevant for present purposes, this Court being primarily concerned with review of findings of fact, as follows:
Unfortunately, the difficulty for this Court in this case is not that it is subjected to reading arid pages of a transcript, which may not reflect the atmosphere of the hearing in the High Court. The difficulty, which has already been alluded to, is that this Court has no record of the oral evidence given by the appellant in the High Court either by way of transcript, digital audio recording, or even an agreed note.
“The role of this court, in my view, may be stated as follows: –
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. . . . I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”
44. On the issue as to whether Peart J. should have acceded to the appellant’s application to set aside the Substituted Service Order, counsel for the respondent submitted that the irresistible conclusion from the facts established before Peart J. in the High Court was that the address at Milltown, Ashbourne, County Meath was an address at which the defendant could be contacted. Counsel highlighted six elements of the additional evidence which was before Peart J., which was not before Kelly J. when he made the Substituted Service Order, namely:
45. Counsel for the respondent submitted that the judgment on foot of the Summary Judgment Order was a regular judgment, not an irregular judgment, because it had been obtained on the basis of compliance with the Substituted Service Order. Apart from that, however, on the authority of the decision in Royal Bank of Ireland v. Nolan, to maintain an application to set aside the judgment on the basis of irregularity in service, the onus was on the appellant to establish that he did not have notice of the proceedings before judgment was ordered. Peart J. who had the opportunity to see the appellant being cross-examined and to form a view as to his credibility had found as a fact that the appellant was on notice of the proceedings before the Summary Judgment Order was made, which, it was submitted, was a correct finding.
(a) that the appellant’s address was given in the 2000 Mortgage as “Milltown, Ashbourne, County Meath”;
(b) that the Forms B1 which were filed in the CRO as late as autumn 2012, and which were filed in accordance with the statutory obligations of the appellant gave his address as Milltown, Ashbourne, County Meath;
(c) that the premises at Milltown were the appellant’s sister’s home;
(d) that the evidence of Mr. O’Callaghan that he got the appellant’s e-mail and postal correspondence addresses from him on 20th December, 2012 was corroborated by the fact that Mr. O’Callaghan e-mailed that information to Mr. Scully on the following day, 21st December, 2012;
(e) on the appellant’s best case, he left the jurisdiction on 27th December, 2012 without leaving any contact address, notwithstanding that he was an Irish citizen with an Irish business, so that the respondent had no address for him abroad; and
(f) that even in the summer of 2013 the appellant had not identified one single location as his address in this jurisdiction.
46. The first issue this Court has to determine is whether the appellant has established that the Substituted Service Order should be set aside. I consider that he has not, for the following reasons.
47. First, there is no requirement, express or implied, in the Rules which confer jurisdiction on the superior courts to make an order for substituted service that the person sought to be served is personally within the jurisdiction, either when the application for substituted service is made or when service is effected. The only requirement in Order 10, rule 1 is that the Court is satisfied that prompt personal service cannot be effected on the person sought to be served. In the High Court, Kelly J., on the evidence before him, was satisfied that that requirement had been complied with. The evidence before Peart J. subsequently, in my view, put beyond “yea or nay” that the respondent was unable to effect prompt personal service on the appellant, who for most of the first half of 2013 was at an unknown location in Sri Lanka.
48. Secondly, in my view, on the evidence before him, Kelly J. was correct in concluding that service of the summary summons, the motion for judgment and the other relevant documentation on the appellant by pre-paid post addressed to him at Milltown, Ashbourne, County Meath would result in the appellant being put on notice of the proceedings and the motion for summary judgment, irrespective of the fact that, as is now acknowledged, the description of the premises at Milltown as the appellant’s “residence” was incorrect. As the analysis of the evidence which was before Peart J. conducted by counsel for the respondent illustrates, there was even more evidence before Peart J. than there had been before Kelly J. from which it would have been reasonable to conclude that the appellant would be put on notice of the proceedings and of the motion for judgment by service of the relevant documents on him in a manner directed in the Substituted Service Order. I am satisfied that it was reasonable for Peart J. to infer from the totality of the evidence that there was an arrangement in place between Cora Cox and the appellant whereby the appellant would be apprised that correspondence and documents had been sent to him by post at the address in Milltown, and that the appellant could ascertain the contents of the correspondence and documents, so that, in the case of documents for the initiation and prosecution of legal proceedings, the appellant would have an opportunity to respond thereto in whatever way he thought fit. As Dixon J. is reported to have said in giving his judgment in the Royal Bank of Ireland Ltd. v. John Nolan as to the importance of seeing that service was regular:
In that context, one can understand the observation of the appellant’s very experienced senior counsel that he considered this case to be of extreme importance and why he so vigorously advanced the appellant’s position.
“One could not overlook the fundamental purpose of service which was to give the defendant notice and sufficient warning of the proceedings that he might have to contest.”
49. The decision of Dixon J. leads to the second issue the Court has to determine. That is whether the appellant can rely on his assertion that he did not have knowledge of the existence of the proceedings when the Summary Judgment Order was made on 25th February, 2013 and what the consequences are, if he cannot rely on that assertion.
50. Having heard the oral evidence of the appellant on cross-examination, Peart J. concluded that the appellant was not telling the truth when he averred that he had no knowledge of the proceedings before the Summary Judgment Order was made on 25th February, 2013. At the risk of unnecessary repetition, unlike the trial Judge, this Court has not had the opportunity to see or hear the appellant testifying, and, more importantly, it has no record whatsoever of the testimony which he gave. In line with the principles set out in Hay v. O’Grady, in normal circumstances this Court is slow to interfere with a finding of fact made by a Judge in the High Court, particularly where the finding specifically relates to the credibility of the witness or witnesses. In the very unusual circumstances of this case, there is absolutely no basis on which this Court could determine that the conclusion of Peart J. as to the appellant’s knowledge of the proceedings before 25th February, 2013, which, as recorded earlier in para. 28, he put bluntly as that he did not believe the appellant’s testimony that he did not have “knowledge of the proceedings before judgment was granted”, was incorrect. Accordingly, this Court must act on the basis that the appellant did have knowledge of the proceedings before 25th February, 2013 and it must reject the appellant’s assertion to the contrary. The consequence is that the Court must reject the appellant’s assertion that the Summary Judgment Order was an irregular judgment because of the alleged irregularity in service.
51. Turning to the Summary Judgment Order, on the application for summary judgment, the respondent satisfied the Court that it had complied with the Substituted Service Order. On the basis of the additional evidence put before Peart J., he found that the appellant did have knowledge of the proceedings before the Summary Judgment Order was made and, for the reasons set out above, this Court cannot interfere with that finding. It follows that this Court must regard the Summary Judgment Order as having been regularly obtained.
52. The appellant, on the application to the High Court to set aside the Summary Judgment Order, did not even attempt to meet the essential prerequisite to a Court considering an application to set aside a regular judgment, namely, that he demonstrate on affidavit that he has a defence on the merits which has a reasonable prospect of success. Accordingly, it was not open to the High Court to consider setting aside the regular Summary Judgment Order and giving the appellant the opportunity to defend the proceedings on the basis that the interests of justice so required. That being the case, the issue does not arise on this appeal, although, in this regard, it appears that the respondent’s attitude to the appellant having an opportunity to defend the claim on the merits has at all times reasonable.
53. Having regard to the foregoing considerations, I consider that there should be an order dismissing the appeal.