High Court: Judge deems service good in respect of appeal proceedings served on solicitor not on record for defendant

About this case:

• Citation:
  [2023] IEHC 247
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering a short written judgment, Mr Justice Garrett Simons held that Danske Bank v. Meagher [2013] IEHC 496 was authority for the proposition that substituted service on a solicitor not on record in proceedings may be justified in certain circumstances. Accordingly, the court was satisfied that service had been properly effected in the case.

Background

The case related to a circuit appeal brought by the plaintiff against the original defendant. Unfortunately, the original defendant passed away after the appeal was lodged. As such, the plaintiff obtained an order from the High Court in March 2022 substituting the defendant’s personal representative (PR) as the defendant in the case.

The plaintiff sought to effect service on the PR but had been unable to do so. It was explained that the PR did not reside at the address stated in the grant of letters of administration, the plaintiff did not know the PR’s date of birth and that the PR did not appear to have a presence on social media.

Additionally, there was no solicitor on record for the PR in the appeal proceedings. However, there appeared to be a firm of solicitors who had been engaged by the PR and who had been in communication with the plaintiff’s solicitors. In particular, the solicitor was involved in settlement discussions between January and March 2022.

The solicitor had indicated that the firm was not involved in the appeal proceedings and that “your appeal has nothing to do with our office and/or our client”. Further, it appeared that counsel had been instructed by the solicitor to maintain a watching brief on the proceedings.

In these circumstances, the plaintiff brought an ex parte application seeking to deem service good in respect of the previous service on the PR’s solicitor. Alternatively, the plaintiff sought permission to permit substituted service on the solicitor.

High Court

Mr Justice Simons began by outlining the decision Danske Bank v. Meagher [2013] IEHC 496, where it was held that “substituted service on a solicitor may be justified, notwithstanding that that solicitor is not formally on record in the proceedings, where the court is satisfied that the party to be served is a client of that solicitor and that the solicitor has a means of contacting their client and thus ensuring that the documents are brought to his attention”.

The court emphasised the distinction between the obligations of a solicitor to act for there client in proceedings where they are on record and the obligations of a solicitor who is ordered to furnish proceedings to their client. It was said: “The fact that substituted service may have been effected upon a solicitor does not make that solicitor the solicitor on record in the proceedings. The obligation extends merely to making a reasonable effort to furnish the papers to their client.”

The court noted that the solicitor had previously acknowledged receipt of the proceedings but stated that she was not involved in the case. The court said that it seemed as though the solicitor had recently been in contact with the defendant and that the plaintiff faced practical difficulties in effecting service.

As such, the court was satisfied that it was appropriate to make an order deeming service of the proceedings good on the solicitor. However, the order was conditional upon the defendant having liberty to apply to set aside the order if she wished.

Conclusion

The case was listed for 12 June 2023 to receive a date and the defendant was granted liberty to file a motion to set aside the order which would be returnable for the same date.

Price v. Douglas [2023] IEHC 247