The Gazette 1989

GAZETTE

DECEMBER 1989

Set-Off and Counterclaim - Deciphering the Irish Rules

Since Prendergast -v- Biddte 1 is the leading Irish case on Set-Off and Counterclaim, it is most unfor- tunate that it was never reported. The modern reader is faced with a transcript so appalling that it calls for the skills of an archeologist rather than a lawyer. And decipher- ing the four Judgements delivered in the Supreme Court may not make one much wiser. In 1957 the Supreme Court frequently sat with four Judges; on the face of it one might assume this to be true of Prendergast in which there were four judgements delivered. Given that these four Judgments contain widely divergent views on the pro- cedure in such cases, one would have some difficulty working out the ratio. Research 2 will reveal that Martin Maguire J. sat on the appeal and concurred with Lavery J., thus forming with O'Dalaigh J. a clear majority view. Unfortunately the lack of a proper Report has led to widespread quotation of Kingmill Moore J's Judgment with the assumption that he can speak for the majority; in fact, certain passages in his Judgment cannot be reconciled with the majority view, or even with other passages in the same Judgment. Facts The Plaintiff issued a Summary Summons for £1,992 due for training and maintenance of the Defendant's horses: the Defendant admitted the debt but sought leave to defend by filing a Counterclaim for damages for breach of a con- tract to sell a half share in a mare. Murnaghan J. refused to give leave to file a counterclaim stating 3 that the Plaintiff appeared to be entitled to Judgment and that if he had discretion, he would exercise it in the Plaintiff's favour. The Defend- ant appealed to the Supreme Court, who dismissed the appeal by a 4/1 majority. Procedure The problem for the Supreme Court was a possible conflict between

ation of the questions in issue in the action as may seem just". If Order 19 prevails, a Defendant has the right even in summary proceedings to file a Defence by way of counterclaim and it would be for the Plaintiff to seek to have it struck out; therefore a Judge hearing a contested Motion for summary judgment should, it appears, give leave to defend whereever a plausible counterclaim is suggested. But from Order 37 it appears that on a Summary Sum- mons a defendant has no right to file a Defence without express leave of the Court; and while the language of Rule 7 may be wide enough to entitle a Judge to give leave for filing a Counterclaim which is not a defence, other rules of the same Order refer to a good defence going to the Plaintiff's claim. 4 Overall, Order 37 would not appear to allow the filing of a Counterclaim which does not meet the Plaintiff's claim. The Judgments Maguire C.J., dissenting, was satisfied that Order 19 should pre- vail. He was fortified by Seciton 27 (3) of the Judicature Act, 1877 which empowers a Court on the hearing of the Plaintiff's claim to give the Defendant any relief he might have been entitled to on a separate action against the Plain- tiff. He said:

two of the Rules of Court: and since the 1986 Rules contain almost identical provisions, the divergence between them remains. Order 19 Rule 2 of the 1986 Rules (replacing Order 19 Rule 3 of the 1905 Rules) provides:- "A defendant in an action may set-off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counter- claim sounds in damages or not, and such set off or counterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judg- ment in the same action, both on

By Chr i s t opher Doyle, Bar r i s t er - a t -Law.

the original and on the cross claim. But the Court may, on the application of the plaintiff before trial, if in the opinion of the Court such set-off or counterclaim can- not be conveniently disposed of in the pending action, or ought not to be allowed, refuse per- mission to the defendant to avail himself thereof". Order 37 Rule 7 of the same Rules (replacing Order XV Rule 5 of the 1926 Rules) in dealing with a Motion for liberty to enter final Judgment on a Summary Sum- mons, provides:- "Upon the hearing of any such motion by the Court, the Court may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or o t he rw i se as may be appropriate, and generally may make such order for determin-

Christopher Doyle,

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