The High Court struck out two applications by Martin Tucker against Elizabeth Curry after finding that he had not sufficiently proved service of the relevant court papers. The court did not consider the merits of either application.
Mr Justice Allen delivered judgment on 7 December 2021, following a hearing on 29 November. The applications were for judgment in default of appearance and an interlocutory injunction. Ms Curry did not appear at the hearing.
Tucker sought an order requiring Curry to account for pension monies said to exceed €100,000 and to deposit them into an account nominated by the court. His underlying claim alleged that Curry had retained pension proceeds that should have gone towards redeeming a mortgage. He also sought damages for stress and distress. These were claims made by Tucker; the court made no findings on them.
The judge found that the plenary summons had initially been left at the reception of a solicitors’ firm that had previously acted for Curry. The firm had not said it was authorised to accept service, so that service was invalid. The summons was later sent to Curry by registered post, but Tucker’s motion for judgment in default had been issued before that proper service. The judge said Curry therefore could not have been in default when that motion was brought.
The judge was also not satisfied that Tucker had proved service of the injunction motion listed for 29 November. His affidavit referred to service by text, email and post, but did not clearly identify which of the two motions listed that day had been served or establish what documents had been included. The text message showed only Tucker’s covering letter. The postal receipt did not identify the contents of the envelope, and the email did not show that an attachment had been sent.
Allen J said the proper order, given the insufficient proof of service, was to strike out both motions without considering their merits. He added that on 3 December, after the hearing, he received a letter from Tucker enclosing a supplemental affidavit. The judge said it was improper for a litigant to communicate with a judge other than in open court.