Summons Server

Danske Bank A/S t/a Danske Bank -v- Meagher [2013] IEHC 496

Judgment in the above case was delivered in the High Court by Mr Justice Peart on the 4th of October 2013.

Background

On the 25th of February 2013 Mr Justice Kelly, in the Commercial Court, granted a judgment for the sum of €7 million against the defendant, John Meagher, in default of appearance.

1. The defendant sought to get this judgment set aside as he argues that he never received the summary summons which was sent to him by ordinary prepaid post, pursuant to an order for substituted service.

2. The defendant also sought to set aside the order for substituted service on the basis that he did not live at the address provided by the plaintiff’s solicitors and he has never resided at that address.

3. The defendant also said that he only became aware of the judgments against him around the end of June 2013.

On the 13th of May 2013 the plaintiff was granted an order for discovery of assets and the oral examination of the defendant. The plaintiff was also granted an Order of Garnishee for the sum of €70,000, which was payable to the defendant by Dublin County Council, but was ordered to be paid to the plaintiff in part satisfaction of the sum owing to the plaintiff.

1. Defendant’s claim that he did not receive the Summary Summons

The defendant said that he did not receive any of these documents as the address to which they were sent is not where he resides. The defendant was out of the country at the time and only returned, on the 30th of June 2013, after hearing from a friend that an order for his arrest was in the newspapers.

When the plaintiff’s solicitor attempted to serve the orders of the 13th of May 2013, he received a letter from an Edward Cox, who was the defendant’s brother-in-law. The letter said that the defendant did not live at the address. Upon discovering this, the solicitor then tried to serve a firm of solicitors who were acting for the defendant. They were known to be acting for the defendant as they had contacted the plaintiff’s solicitors on the 5th of June 2013 in relation to their client. The defendant’s solicitors, however, returned the papers and said that they were not instructed in relation to the matter and did not have the authority to accept service.

Peart J noted that this showed a failure on the part of the defendant’s solicitors to appreciate the nature of a substituted service order granted by the court. He also noted that it was a failure to appreciate that at the time they were officers of the court and the appropriate thing for them to have done was to go to the court and ask to be relieved of the task imposed upon them by the court.

The defendant only returned to the country when he heard that there was an order for his arrest. He says that he had no knowledge of any orders or proceedings that had taken place up to that point in time. In his affidavit he states that his solicitors had been given no instructions by him in relation to the proceedings up to that point. The firm were then instructed on the matter and another affidavit from the defendant was filed and also an affidavit from his niece was filed. A notice of motion seeking to set aside the judgment was issued on the 28th of August 2013.

The affidavit of the defendant’s niece dealt with her interaction with the summons server who had tried on numerous occasions to personally serve the defendant the summary summons in January 2013. On four separate occasions the summons server went to the address that was given to him for the defendant. There was no response when he called at the house. On the fourth occasion he encountered the local postman and asked him did the defendant live in this house. The postman said he did.

Upon calling to the house, the defendant’s niece answered the door. According to the summons server she confirmed that the defendant lived there but was not there at that moment in time. In the niece’s affidavit she denies this, she says that he never asked her whether her uncle lived there. She states that the house belongs to her parents and she has no recollection of her uncle ever staying there.

When the plaintiff had granted a loan facility to the defendant, it was addressed to one of the defendant’s properties on Charlemont Street, Dublin. However a receiver was appointed over these properties at the end of 2012 so the plaintiff could not communicate with the defendant to those addresses. There was, however, a previous banking relationship between the two parties dating back to 2000. The defendant on that occasion had used his sister’s address for correspondence between the two. This was exhibited in Mr Bell’s (solicitor for the plaintiff) affidavit. He also exhibited certain B1 annual return forms from the Companies Registration Office which were filed as recently as November 2012 in relation to the two companies the defendant was involved in. The addresses he gave on these forms were his sister’s in County Meath.

Mr Bell also refers to a telephone conversation that Mr Henry O’Callaghan, an employee of the appointed receiver, had with the defendant on the 20th of December 2012. The defendant gave his email and postal addresses to Mr O’Callaghan. The address given was again that of his sisters in County Meath.

2. Defendant’s application to set aside the order for Substituted Service

Peart J raised concerns over the credibility of the defendant. The defendant had used his sister’s address for business purposes for years. Peart J questioned the defendant’s claims that he had not been aware of any proceedings against him as he finds it hard to believe that the defendant was not informed by his sister, who had received these documents. Peart J notes that there is no affidavit from his sister or her husband supporting his claims. Peart J believed that it was not credible that there was no affidavit from at least one of the two. Peart J found that there was no basis to set aside the order. The defendant had only put forward denials. In comparison with what was put forward by the plaintiff, the denial was made seem hollow.

3. Application to Set Aside the Judgment

The general rule when a defendant is seeking a judgment to be set aside is that the defendant must specify the irregularity of the judgment. If the Court is satisfied that there was an irregularity in the manner in which the judgment was obtained then it will set aside the judgment. There is no requirement on the defendant to demonstrate an arguable defence to the plaintiff’s claim.

In the present case the defendant did not mention any defence to the plaintiff’s claims in any of his affidavits. Peart J referred to the same line of reasoning he used in considering whether or not to set aside the order for substituted service. Peart J did not find it credible that the defendant had not been aware of any proceedings against him. Peart J refused the application to set aside the judgment.

Conclusion

The defendant’s argument that he was not aware of the various proceedings against him did not suffice in getting the judgment and the order for substituted service set aside. Peart J found that what the defendant put forward was not credible and when it was compared to the evidence of the plaintiff, it was clear that the judgment and order should stand.

Philip O’Leary is a Partner in FitzGerald Solicitors and is head of the Commercial Department. Fitzgerald Solicitors are one of Munster’s leading commercial law firms and are located at 6 Lapps Quay, Cork.

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