Locations
The Master of the High Court has, in recent cases for summary judgment, interpreted the Rules of the Superior Courts[1] as providing him with jurisdiction to strike out summary proceedings, where the plaintiff is on notice of a defence. The High Court has in two recent cases set aside the orders made on appeal. I propose dealing specifically with the Master’s jurisdiction to strike out summary proceedings and the High Court’s reasoning behind its endorsement of the summary process.
ACC Bank PLC v Thomas and Mary Heffernan [2] (the “Heffernan Judgment”)
On 18 October 2012, the Master gave a written decision in the Heffernan Judgment. The plaintiff issued summary proceedings against the defendants for the recovery of a liquidated debt. Numerous affidavits were exchanged and when the matter was heard, the Master struck out the plaintiff’s summons on the basis that the papers were not in order. The basis for the decision was that the plaintiff had averred on affidavit that there was no bona fide defence to the proceedings, in circumstances where the defendant argued otherwise. The Master indicated that the plaintiff should have issued plenary proceedings where it was on notice of a defence.
The plaintiff appealed this decision and on 4 November 2013, a written judgment was delivered by Mr Justice Hogan. In setting aside the order made by the Master, Judge Hogan examined in depth, the powers of the Master as set out in the applicable Rules of the Superior Courts.[3] The judge found that in contested cases that the Master has no jurisdiction to strike out summary proceedings and that his only power is to transfer the matter to the High Court for hearing if the case is in order, or if the parties agree, to transfer the matter to plenary hearing. He also indicated that the reference to the case being “in order” before transfer to the High Court, did not provide the Master with a power to consider the merits of averments claiming that there is no defence to a claim, when one is asserted. Rather, “in order” means that the case is administratively ready to be heard in the High Court, the exchange of affidavits has closed and nothing more.
The Governor and Company of the Bank of Ireland v Iain Dunne and Andrea Cawley[4]
The President of the High Court, Mr Justice Kearns delivered judgment in an identical set of circumstances four days later on 8 November 2013. Judge Kearns adopted the same reasoning as Judge Hogan and found that the reasoning of the Master was inappropriate. He also found that the Master did not have a power to analyse or to retrospectively invalidate affidavits on the basis of untested arguments made by a defendant, which may not amount to a defence. The court followed Judge Hogan’s decision and found that the Master had no jurisdiction to strike out summary proceedings.
Conclusion
Prior to the intervention of the High Court, the Master’s decision in the Heffernan Judgment left many creditors reluctant to avail of the summary process where even a weak defence could be readily asserted by a defendant. This resulted in creditors considering other enforcement options which in most cases do not realise the full amount of the debt owing.
This recent case law is good news for creditors because it endorses summary proceedings which were created specifically as a fast track process in claims for liquidated debt and with a view to saving costs for all parties. These decisions should dispel any concerns as to the possibility of valid claims for judgment being struck out and provide comfort to creditors in what was designed to be an efficient and cost effective debt collection process.
by Rachel O' Connor and Susan Higgins.
Susan Higgins is an Associate in the Insolvency and Litigation team at McDowell Purcell Solicitors.
Rachel O' Connor is a Solicitor in the Insolvency and Litigation team at McDowell Purcell Solicitors.