The High Court ruled that a lodgement made by the defendants in November 2016 was valid without the court’s leave, in proceedings returned to the High Court for an assessment of damages. Mr Justice Meenan held that the lodgement was made before the remitted action was set down for trial and that the defendants had gained no unfair advantage.
The dispute began with proceedings issued in July 2010. After a 12-day trial, the High Court dismissed the plaintiffs’ claim in January 2012 and released money lodged in court back to the defendants. On appeal, the Court of Appeal reversed that decision and found the defendants liable to the first-named plaintiff for negligent breach of duty. It sent the case back to the High Court to assess any damages, taking possible contributory negligence into account.
The defendants paid a new sum into court on 4 November 2016. In January 2018, the first and third named plaintiffs challenged the lodgement, arguing that it required the court’s leave because the action had previously been set down for trial in 2011. They also argued that the defendants had gained an unfair advantage by hearing the plaintiffs’ case at the earlier trial and appeal, and through a mediation that did not resolve the dispute.
The defendants submitted that the 2016 lodgement was made before the remitted action was set down for trial in May 2017, so leave was not required under Order 22 of the Rules of the Superior Courts. They also relied on a separate rule concerning late lodgements. The judge accepted the plaintiffs’ submission that this separate rule applied only to personal injury actions, but said that did not determine the case.
Justice Meenan held that a case remitted after appeal requires a new notice of trial and is, in effect, a different action for the purpose of the rule. The matter before the court was now an assessment of damages, with liability no longer in issue except for possible contributory negligence. He said the defendants should have the same opportunity to lodge money before the remitted case was set down for trial as they had before the original trial.
The judge also rejected the claim of unfair advantage. Both sides knew more about the other’s case after the first trial and appeal, and the defendants’ lodgement had to reflect a realistic view of the claim’s value. Before the mediation, the defendants’ solicitors had written that their client reserved the right to make a new lodgement if mediation failed. The judge said the plaintiffs therefore knew that possibility existed.
The court concluded that the 4 November 2016 lodgement complied with Order 22, rule 1(1)(a)(i), and did not require leave. It found the lodgement was not unfair and made no ruling in this judgment on the amount of damages or the eventual outcome of the remitted assessment.