Ignominious Judicial Conduct
The Supreme Court has again demonstrated that the standard is “Any means to an end”
The Supreme Court on 25June 2019 convened to hear an appeal in SC No. 312/2014, Gerald J. P. Stephens v Kevin M. Bourke. The High Court case is an action alleging professional negligence. The hearing was specifically on an Appeal from the 19 May 2014 High Court Order given by Ms. Justice Baker reference Superior Courts Order 27, rule 9(1).
The plaintiff’s oral submission follows:
The issues before the court are straight forward.
· Did the plaintiff breach Order 27 rule 9(1)?
· Did the defendant, a solicitor, through his legal representative fail, refuse or neglect to file a defence within a period of time days short of a full year following registered Post Service of the plaintiff’s statement of claim?
· Did the defendant fail, refuse or neglect to file a defence in the 21 Day extension of time given pursuant to Order 27 rule 9(1)?
· The History:
· The defendant, a solicitor was at all times represented by an experienced solicitor law firm and counsel.
· On 27 November 2012 – Statement of Claim served on the defendant by registered post.
· On 4 November 2013 – 21 Day Notice served on the defendant by registered post.
· On 5 December 2013 plaintiff filed a Notice of Motion for Judgment in default of Defence.
· On 19 May 2014 the High Court 2009 No. 5326 P, Gerald J. P. Stephens and Kevin M Bourke by Order of the Court, Baker J.
“That the plaintiff did breach Order 27 Rule 9. No notice of motion for judgment in default in actions claiming unliquidated damages in tort or contract may be served a formal warning letter where he threatened defendant giving him notice of his intention to serve a notice of motion for judgement to the late delivery of defence and at the same time consenting to the late delivery of defence within 21 days of the letter.
That the Plaintiff’s motion is hereby dismissed.”
· In an Approved Judgment dated 10/2/ 2015 Ms Justice Baker issued a NOTE of EX TEMPORE JUDGMENT on the 19th day of May, 20141
“2. The plaintiff did not himself comply with the Rules
the Superior Courts in the warning letter that he
served, on the 4th November, 2013, he served a formal
warning letter where he threatened a motion but he
did not, in the body of the letter or in any way in any
other part of the letter or in an attachment to letter,
give an extension of time on consent for service of the
defence…”
· On 5 November 2013 a 21 Day Notice was served on the defendant by registered post cc to Groake & Partners: Exhibit GS2 page 11, the High Court Record No. 2009 5326P (Stephens v Bourke)
The text of the letter reads: “Dear Sir: Be advised that unless you file a Defence in the above matter within 21 days of the above date, a Notice of Motion for Judgment in Default will be issued without further notice.”
· The letter is in compliance with Order 27, Rule 9(1)
(a) It gives the defendant consent of 21 days to file a defence.
(b) It notices that if the defence is not filed within the 21 days the plaintiff intends to file a Notice of Motion for Judgment in Default of Defence without further notice.
Redundancies – In English usage, redundancy is usually defined as the use of two or more words that say the same thing, but we also use the term to refer to any expression in which a modifier’s meaning is contained in the word it modifies. Grammarist
· The 21st Day extension made available to the defendant and consented to by the plaintiff for late delivery of a defence, expired on 24 November 2013.
· The defendant’s solicitor wrote in the second paragraph of a 9 December 2013 letter to the plaintiff following the expiration of the 21 days extension: “In fact, our letter to you dated the 26th November 2013 with enclosed Defence was sent to by registered post but that was returned to us marked “not collected for” we then sent that letter to you by ordinary post.”
· The record unequivocally shows that the defendant’s qualified solicitor failed, refused or through negligence disregarded the obligation to even abide by the 21day late extension that expired on 24 November 2013.
· The defendant at no time stated the existence of special circumstances which explain or justify the failure to produce a defence within the period of one year following service of the plaintiff Statement of Claim and the extended period of 21 days.
AUTHORITIES
In Molloy v. Reid – S.C.No. 56 of 2013 – IESC Clarke J at Introduction [3] wrote: Time, it is said, waits for no man. Time can be important in many aspects of the law. In private law, parties frequently agree that their obligations are to be met within a certain time frame. Sometimes, because those parties agree that time is essential to their agreement, even a minor failure to comply in time will be considered a breach which my lead to significant consequences.
SPECIAL CIRCUMSTANCES
Delaney and McGrath on Civil Procedure, 4th edition (2018) on page 274 at (b) 5-170 Order 27, rule 9 (1) – Order 27, rule 8(1) requires the first step for the plaintiff to write to the defendant giving him notice of his intention to serve a notice of motion for judgment and consenting to the late delivery of the defence within 21 days of the date of the letter.
· On page 278 5-182 The decision of the majority was delivered by Murray J who examined the term of the revised Order 27, rule 4. He noted that it had been amended by the insertion of the phrase: “if the Court is satisfied that at the time of the default special circumstances…existed which explain and justify the failure. He characterised this amendment as “specific and narrowly focused” which “introduced a new and stricter, criterion which an applicant must satisfy before he or she can rely on the Court exercising its discretion in his or her favour.
· He regarded it as striking that the amended rule did not introduce any time limit within which an application to set aside a default judgment must be brought and that what an applicant was required to demonstrate was that there were “special circumstances” explaining and justifying the failure at the time when the judgment was obtained. He, therefore, rejected the contention that delay of an inordinate nature in bringing the application to set aside the default judgment could affect the question of whether there were “special circumstances” at that time that the default judgment was obtained.
· Murray J went on to refer to the judgment of Hardiman J in Gilroy v Flynn, which he said: reflects the approach of the Courts in contemporary circumstances having regard to the need to, as far as practicable, ensure the timely disposal of cases pending before the Courts and the rights of parties to a hearing within a reasonable time as envisaged by Article 6 of the ECHR.
· At 5- 184 the concluding paragraph reference the European Convention of Human Rights states: How such issues arising from such delay on the part of a party are resolved remains a matter for the Court’s discretion having regard to the interests of justice in all the circumstances of the case.
The Supreme Court case law is replete with rulings dealing with Rules of the Superior Courts. It has spoken to Order 27 Rule 9(1), the procedure required for a party in the matter of Judgment in Default of a Defence. The authorities presented by Appellant/Plaintiff Stephens demonstrates the Court’s position, “…even a minor failure to comply in time will be considered a breach which may lead to significant consequences”: Molloy v. Reid, S.C. 56 of 2013 -IESC Clark J
Delaney and McGrath on Civil Procedure, 4th edition (2018) on page 274 at (b) 5-170 states the first required step for the plaintiff when prosecuting an issue of Order 27, rule 9(1). At hearing of the appeal, SC No. 312/2014, Gerald J. P. Stephens v Kevin M. Bourke, the Court panel asked Defendant Counsel if the defendant understood that the plaintiff’s 21 Day letter gave consent to the defendant to a 21-day extension of time to file a defence? Counsel responded, “Yes.” As noted, the record shows that the defendant failed, refused or neglected to file a defence within the extended period of time. The above continues to report the court may consider “special circumstances” existed explaining and justifying the failure. Defendant/Respondent Bourke put forth no special circumstance for its failure to comply with Rules of the Superior Courts, Order 27.
As noted in the appellant/plaintiff submission that not only did the defendant fail to comply with the 21-day time extension, he, a solicitor represented by an able solicitor firm, failed, refused, or neglected to file a defence in the fullness of an entire year following receipt of the Statement of Claim.
The Court responding to the above breach stated to the appellant/plaintiff, “You could have taken action during that year to further the matter”, dismissing the central issue of the defendant’s conduct.
In 2010, the Court gave Order dismissing the appeal citing Kevin Tracy and Karen Tracey and Ireland, Anor The Supreme Court Record No: 77/2010, [2018] IESC 6. This decided case is unequivocally NOT on legal point in The Supreme Court No. 312/2014. Its use by the defendant and accepted by the Court is shocking and reckless.
Comparison of the two cases
The issue on appeal was singular and specific: Did Judge Baker err in both her original Order of 19 May 2014 and restated in her Note of Ex Tempore Judgment on 2 October 2015 wherein it was stated that the plaintiff did breach Order 27 Rule 9:
Original 19 May 2014 Order
“That the plaintiff did breach Order 27 Rule 9. No notice of motion for judgment in default in actions claiming unliquidated damages in tort or contract may be served a formal warning letter where he threatened defendant giving him notice of his intention to serve a notice of motion for judgement to the late delivery of defence and at the same time consenting to the late delivery of defence within 21 days of the letter.
That the Plaintiff’s motion is hereby dismissed.”
Note of EX TEMPORARY JUDGMENT on the 19th day of May, 2015
“2. The plaintiff did not himself comply with the Rules
the Superior Courts in the warning letter that he
served, on the 4th November, 2013, he served a formal
warning letter where he threatened a motion but he
did not, in the body of the letter or in any way in any
other part of the letter or in an attachment to letter,
give an extension of time on consent for service of the
defence…”
The 21-day letter sent registered post to the defendant reads, “Dear Sir: Be advised that unless you file a Defence in the above matter within 21 days of the above date, a Notice of Motion for Judgment in Default will be issued without further notice.”
The appellant argued that the letter is in compliance with Order 27, 9(1).
(a) It gives the defendant consent of 21 days to file a defence.
(b) It notices that if the defence is not filed within the 21 days the plaintiff intends to file a Notice for Judgment in Default of Defence without further notice.
Counsel for the defendant responding to the Court’s question regarding the issue of consent stated that the letter was taken by the defendant to mean that consent was given for a 21day extension of time by the plaintiff to the defendant. The record shows that the defendant failed, refused or neglected to comply with the 21day extension of time. The Court stated that the matter of consent was inherent in the Plaintiff’s 21 Day letter.
At that moment the Court concurred that the requirements of Order 27, rule 9(1) had been satisfied by the plaintiff in his 21 Day Letter to the defendant.
Astonishingly Reckless
The Court next heard from defendant Counsel. Counsel opened with presentation of an authority he held was directly on point in the case, The Supreme Court Record No. 77/2010, [2018] IESC 6: Kevin Tracy and Karen Tracy, Plaintiff/Appellants and Ireland, Anor, Defendants/ Appellants, judgment of Ms. Justice Finlay Geoghegan delivered on the 7th day of February 2018.
As seen in the preceding text the matter before the Court was specific to the judicial conclusion wrought by Ms. Justice Baker that the plaintiff breached Order 27, Rule 9(1) he did not consent to a 21-day extension of time to the defendant for the purpose of filing a defence.
Supreme Court Ruling Transcript Gerald Stephens v. Kevin Bourke -25 June 2019
Line 23 through 28: The appellant’s chief complaint against the ruling of Ms. Justice Baker is that she told him that he had fallen foul of a procedural rule in that he had not expressly stated in his 21-day letter that he was consenting to late delivery of the defence. The Court considers that the appellant has a reasonable argument to make in that respect. We are prepared to accept that that is implicit in the 21-day letter that within that period he was consenting to delivery of the defence within that period of time.
The Court next exceeded its jurisdiction by entering into the specific appeal before it a discussion and analysis of the Tracy case.
The context in Tracy involved absolutely nothing to do with whether or not the plaintiffs violated Order 27. Rule 9(1) reference issuance of consent in a 21 Day letter(s) they issued. The issue in Tracy is unambiguously one of was the appellant Tracy entitled to a judgment in default of defence?
The issues before the court in Tracy are as different from those in Stephens v Bourke as those of Switzerland and South Africa. To suggest otherwise is brazen sophistry.
The matter before the Court in Tracy was an appeal on the issue of the High Court refusal to grant judgment in default of defence pursuant to O.27, rules 8 and 9 of the Superior Court Rules.
The matter before the Court in Stephens v Bourke was singular, appeal against Ms. Justice Baker Judgment/order that the plaintiff did breach Order 27 rule 9(1).