The Supreme Court dismissed Fergus Appelbe’s appeal over the reinstatement of a claim against land in County Cork, ruling that the proceedings could be amended to include the claim concerning Folio 23312.
The appeal concerned a procedural step in proceedings brought by Marion O’Neill and Patrick O’Sullivan to have a judgment mortgage declared well charged on two Cork folios. In April 2012, the Master of the High Court permitted the plaintiffs to amend their special summons by deleting references to Folio 23312. The claim concerning Folio 17110 then proceeded.
The plaintiffs later applied to restore the deleted claim. The High Court granted that application in October 2012, relying on an inherent jurisdiction to allow retraction of a discontinuance. The Supreme Court noted that the High Court decision relied on Smyth v Tunney, which the Supreme Court had previously overturned. It held, however, that this case concerned amendment of proceedings, not a notice of discontinuance. The court had power both to remove the claim by amendment and to amend the proceedings again to restore it.
The Supreme Court said that more difficult questions might arise if reinstatement affected a defendant’s ability to rely on the Statute of Limitations, but that issue did not arise here. It considered that the appropriate order was to amend the proceedings to include the Folio 23312 claim. That reached the same result as the High Court, though on a different legal basis.
The appeal was dismissed because no other issue was raised or argued. The Court did not determine whether the debt was owed. The judgment mortgage had been registered following an earlier High Court judgment, and the High Court’s November 2012 well-charging order covered Folios 23312 and 17110, with the amount due stated as €621,779.30 plus interest at 8% from 2 July 2010. The appeal before the Supreme Court was directed at reinstatement of the Folio 23312 claim, not at the well-charging order itself.