About this case:

• Citation:
  [2021] IEHC 768
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

In so ruling, the court noted that the plaintiff appeared to be assisted by a man who “crops up reasonably regularly in the chancery list” and that “he does not know what he is doing”.

Delivering judgment in the case, Mr Justice Senan Allen stated that the case served as a warning to litigants to be careful in taking advice from unqualified individuals.

Background

The plaintiff issued proceedings against his former partner seeking to have her pay certain monies to Havbell DAC. The plaintiff and defendant had previously entered a mortgage agreement which had subsequently been sold to Havbell. The plaintiff stated that he required the defendant to pay the proceeds from life pensions in order to redeem the mortgage.

The plaintiff attempted to serve the plenary summons on the defendant by leaving copies at the reception of her former solicitor in June 2021. The solicitors had not indicated that they had the authority to accept service. In July, the plaintiff sent a letter requiring the solicitors to enter an appearance within 21 days.

The letter also included a notice of motion for an injunction seeking to compel the defendant to pay a sum in excess of €100,000 to Havbell. In August, the plaintiff issued a motion for judgment in default of appearance, which again was sent to the defendant’s former solicitors.

In September, the solicitors responded to the plaintiff, stating that they were not instructed to act in the matter and returned the various documents which had been sent to them. It was not clear that the solicitors had received the injunction motion and these were not among the papers returned to the plaintiff.

When the injunction came before the High Court in October, the affidavit of service exhibited the letter from the solicitors returning the papers. Further, the plaintiff exhibited proof of posting that the plaintiff had been served directly with “the proceedings” by ordinary and registered post. However, the motion was struck out on the basis that there was no proof that the defendant had been served with the injunction motion.

The plaintiff subsequently obtained an order for substituted service, which allowed service by text, email and ordinary pre-paid post. The plaintiff also re-issued his motion for an interlocutory injunction and proceeded to serve the plaintiff with documents by text and email on 3 and 4 November.

Both the injunction motion and the motion for judgment in default of appearance came before the High Court on 29 November. The court described the papers as being in a “jumble” and took them away for further consideration.

High Court

Delivering judgment in the case, Mr Justice Allen held that service was not in order and struck out both motions. The court began by noting that the former solicitors for the defendant were in possession of the plaintiff’s papers for months before returning them and that they should have been more proactive in refusing service. However, there was no question that this form of service was sufficient.

The court went on to consider the plaintiff’s affidavit of service. The affidavit stated that the defendant had been served with “the proceedings”, without referring specifically to either motion. The court held that, based on the averments contained in the affidavit, it was not clear which motion had been served by the plaintiff on the defendant. Further, it appeared that only the notice of motion had been served by text on the defendant, the court said.

The evidence exhibited to the court did not disclose what documents had been sent to the defendant. The court noted that a postal receipt did not outline the contents of the envelope, while the email and text merely stated “please find attached, by way of service on you” without exhibiting the attachments that were sent.

Accordingly, the court was not satisfied that service of the injunction application had been properly effected and the motion was struck out.

Regarding the motion for judgment in default of appearance, the court held that, even if the motion had been properly served, the plenary summons and statement of claim had never been served on the defendant. Rather, the motion issued after the plaintiff left the documents with the former solicitors, which was bad service. This motion was also struck out.

In the course of delivering judgment, the court noted that the plaintiff appeared to be assisted by a man “in the background” who described himself as a “process server.” The man claimed to assist litigants-in-person with their cases. While the court said that the extent of the man’s involvement in the present case was not clear the court said it was “clear that he does not know what he is doing.”

The court concluded that: “To a greater or lesser extent, this case should serve as a further reminder to litigants in person to beware of unqualified persons holding themselves out as being in a position to assist.”

Conclusion

The motions were struck out for failure to prove service. As a postscript, the court commented that it had received a letter directly from the plaintiff apologising for the state of the papers. The court said that the plaintiff was a “seasoned litigant” and should know better than to attempt to communicate directly with a judge.