The High Court has ordered Permanent tsb plc to replace Tony Waldron as plaintiff in a negligence action over two lorry collisions that damaged a building in Roscommon. The underlying claim remains to be determined.
Mr Justice Edwards made the order on 28 June 2013 under Order 15, rule 13 of the Rules of the Superior Courts. He discharged Waldron from the proceedings and directed the bank to file and serve an amended plenary summons and statement of claim within 21 days after the order is perfected. The defendants may file amended defences within a further 21 days after receiving those documents.
Waldron’s action concerns damage to a building known as Bruce Betting at Greally’s Corner. The judgment says lorries struck it on 10 July and 1 December 2008. The claim alleges negligence and seeks damages from the defendants. The court did not decide liability or the amount of any damages in this motion.
Waldron had borrowed money from the bank, which registered a charge over the property in November 2008. After obtaining a possession order from Roscommon Circuit Court in March 2011, the bank took possession in August that year. The building was still damaged and was considered dangerous. Following a Dangerous Buildings Notice from Roscommon County Council, the bank arranged repairs and sought to recover their cost through the action.
Waldron signed an assignment of his right of action to the bank on 27 November 2012; the bank’s agent signed on 7 December. The defendants opposed the bank’s entry, arguing that the rules did not permit it in these circumstances and challenging the assignment, including on consideration and champerty grounds.
The judge found the assignment met the statutory requirements for transferring the legal right of action, including being absolute, in writing and notified to the defendants. He said the absence of valuable consideration did not invalidate it and rejected the objections based on subrogation and champerty.
The judge declined to substitute the bank under Order 15, rule 2, which addresses cases where the wrong plaintiff was named through a bona fide mistake. Waldron was entitled to bring the action when it began, and no such mistake had occurred. But the judge found substitution appropriate under rule 13 so the court could completely determine the issues in the proceedings. The bank must also pay the defendants’ costs of both motions and the costs of reconstituting the action, with costs to be taxed if not agreed.