The Court of Appeal has dismissed Desmond Monahan’s appeal against a High Court decision setting aside an order that renewed the summons in his claim against solicitors Kevin Byrne and Shane Coyle, practising as Brannigan and Matthews Solicitors.
The appeal court gave its decision at the end of the hearing on 17 November 2015 and delivered its reasons in a judgment dated 20 January 2016. The underlying claims—for breach of contract, breach of fiduciary duty and misrepresentation—were not determined in this appeal.
Monahan’s claim concerns a 2006 land purchase. He contends that he and another individual, Ray White, jointly borrowed about €2.2 million from Allied Irish Banks, secured against mortgaged property. He says €1 million was paid to him and a further €1.08 million was paid to the solicitors on trust for him. His complaint is that the solicitors paid €790,500 to White on 30 June 2006 and €146,250 on 16 August 2006 without authority. He also says the alleged wrongdoing left him jointly and severally liable with White for €2,338,097 to the bank. These are allegations, not findings in this appeal.
The plenary summons was issued on 7 June 2012 but was not served within the initial 12-month period. On 4 June 2013, the Master of the High Court renewed it for six months on an application made without notice to the defendants. The first defendant was served in December 2013, followed by the second defendant. The High Court later set aside the renewal, finding that Monahan had not shown a “good reason” for it. He appealed that ruling.
The Court of Appeal said an order made without notice is provisional and that, when asked to set it aside, a court must first decide whether there was a good reason to renew the summons. If there was, it must then consider the interests of justice, including the hardship to each side.
The court rejected the reasons advanced for the renewal. Although parts of the conveyancing file had gone missing during a transfer between solicitors, the file was still incomplete when the renewed summons was served, so its incompleteness had not prevented service. The former solicitor’s reluctance to sue local professional colleagues did not objectively justify the delay. Nor was the risk that the claim might become statute-barred, by itself, a good reason to renew the summons.
The defendants had waited about seven months before applying to set aside the renewal. The court agreed that they ideally should have acted sooner, but held that the delay did not prevent them bringing the application. It affirmed the High Court’s decision to set aside the renewal and dismissed the appeal. The judgment concerned the summons renewal only; it did not rule on liability for the alleged payments or the damages claims.