High Court: Order in favour of a dealership which ‘clocked up’ 13,500km on couple’s car is set aside

About this case:

• Citation:
  [2024] IEHC 656
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons determined that the conduct of the dealership in allowing its employee to ‘clock up’ 13,500km on the defendants’ car was one factor militating against the disposal of the case on a summary basis, remarking that the Circuit Court should have placed a stay on its order to facilitate an appeal.

Background

Mrs Sharon Gilligan purchased a Hyundai vehicle from the defendant car dealership in January 2021. Mrs Gilligan alleged that the vehicle had a number of defects which rendered it unusable and that the clutch had been repaired but that this had not been disclosed to her prior to purchase.

She returned the vehicle to the dealership on multiple occasions and had been provided with a replacement vehicle, which the dealership maintained was a ‘courtesy car’ to be returned to them.

The dealership contended that the disputed vehicle had been ready for collection since 26 April 2022, leading it to threaten the charging of storage fees. It appeared that the dealership had allowed one of its employees to use the Hyundai vehicle extensively and that 13,500 additional kilometres had been clocked up on its odometer. Mrs Gilligan issued proceedings seeking recission of the contract for the purchase of the vehicle and damages. 

The dealership issued its own summary proceedings in the Circuit Court as against Mrs Gilligan and her husband, to which a defence was delivered pleading that any agreement in relation to the replacement vehicle was conditional upon the purchased vehicle being returned in satisfactory working order or their being compensated in respect of same. The Circuit Court made an order on 23 January 2024 directing the Gilligans to return the replacement vehicle by 5pm the following day, and refused a stay on the order.

The Gilligans filed an urgent appeal on 24 January 2024 and an application for a stay, which application was acceded to by the High Court on 26 January 2024. The hearing of the appeal came before the High Court on 15 November 2024.

The High Court 

Mr Justice Simons noted at the outset that it was “unfortunate” that the Circuit Court had refused to place a stay on its order and stated: “Whereas there will occasionally be urgent cases where it may be necessary for a lower court to give immediate effect to an order by refusing a stay, it is difficult to understand why this was considered necessary in the present proceedings… both parties will have incurred significant costs in preparing for an urgent hearing before the High Court seeking a stay. This could have been avoided had the Circuit Court taken a more reasonable attitude to the application for a stay.”

The court considered the law on detinue, highlighting that the court has discretion in relation to whether to order the return of property and that there are dicta to the effect that such discretion ought not to be exercised “when the chattel is an ordinary article of commerce and of no special value or interest, and not alleged to be of any special value to the plaintiff, and where damages would fully compensate”.

Turning to Order 28, rule 1 of the Circuit Court Rules, Mr Justice Simons determined that the first issue to be addressed was whether the proceedings, which did not refer to the term “detinue”, constituted an action for detinue for the purposes of Order 28 such that the dealership could apply for summary judgment.

Finding that it would have been “preferable” had the term “detinue” been deployed in the civil bill, the court found that this omission was not fatal: “In any individual case, it is necessary to consider the pleadings, in the round, in order to identify the cause of action.”

Finding that all of the ingredients of an action for detinue had been met, in that the dealership sought the immediate delivery of the vehicle, had demanded the return thereof and that the vehicle had not been returned, the court confirmed that the action was of a type eligible for summary judgment under Order 28, rule 5 of the Circuit Court Rules.

Moving to consider whether the Gilligans had a prima facie good defence to the dealership’s claim, Mr Justice Simons emphasised that they were not obliged to demonstrate that they had a defence which would probably succeed, but rather a credible defence.

Having regard to the principles described in Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, [2021] 2 I.R. 381, the judge was not satisfied that the proceedings were appropriate for summary judgment as there was a “real controversy between the parties as to the precise legal basis upon which the replacement vehicle had been provided to the Gilligans” in circumstances where evidence exhibited to the parties’ affidavits contradicted the dealership’s suggestion that the replacement vehicle was a courtesy car which was required to be returned upon repair of their purchased vehicle.

Mr Justice Simons also considered that the conduct of the dealership in permitting an additional 13,500km to be added to the car’s mileage and further, the emergence of toll charge receipts indicating its use in Galway, Limerick and Dublin were factors which militated against the summary disposal of the proceedings. 

The judge noted inter alia that the dealership’s conduct was a matter to be considered by the trial judge in determining whether to grant the equitable relief sought, that any agreement to return the vehicle might now be frustrated as its value would have been reduced by this additional use, and that it was open to argument whether the vehicle was a chattel of special value or interest to the dealership or was merely an ordinary article of commerce, in respect of which an order for damages would be appropriate.

Conclusion

Noting that these difficult legal issues were not suitable for summary disposal, the High Court refused to grant summary judgment and set aside the Circuit Court’s order, instead granting the Gilligans leave to defend the claim before the High Court in line with Cody.

Connolly Bros. Car Sales (Ballybrit) UC v. Gilligan & Anor [2024] IEHC 656