The Court of Appeal has dismissed Rosemary Crowley’s appeal over the handling of a dispute concerning two Galway properties, finding that a plenary summons sent to solicitors for a receiver and mortgagee had not been served on the company named as defendant.
The appeal concerned the High Court’s refusal to deem service good, its dismissal of the action, and an award of costs to Ken Fennell for a motion to join him to the proceedings. The Court of Appeal upheld the High Court’s decisions. The judgment records a provisional view that Fennell was entitled to his costs of the appeal, while giving Crowley ten days to notify the court and Fennell’s solicitors if she wished to argue otherwise.
Crowley had agreed in July 2017 to buy two properties in County Galway for €300,000 and €90,000. The contracts named the vendor as Kapstone Limited, in receivership, acting by and at the direction of Fennell. The sales did not complete, and Crowley was told in September 2017 that her deposits had been forfeited. She later sought specific performance of the contracts.
The plenary summons was issued in April 2018. After it expired, the High Court renewed it in October 2019 for three months. Crowley’s solicitors sent it to a new firm acting for Fennell as receiver and Promontoria (Arrow) Limited, after asking whether the firm had authority to accept service. The firm initially said it could accept service for those clients, then stated that it did not act for Kapstone. The summons was returned in September 2020.
The Court of Appeal said there was no evidence that the solicitors had instructions from Kapstone or that delivery to them had informed the company of the claim. It concluded that the solicitors’ statement that they did not act for Kapstone removed any basis for believing they could accept service for it. The court also rejected the argument that Fennell’s role under the sale contracts made his solicitors solicitors for Kapstone.
The court noted that the summons should have been returned when it became clear that Kapstone was the only defendant, but said the primary responsibility to request its return rested with Crowley’s solicitors. In any event, any confusion could not justify deeming service good on a company for which there was no evidence the solicitors acted.
The High Court had awarded Fennell costs only for the motion to join him and seek to restrain a sale. The Court of Appeal found no error in that decision. It rejected the appeal on all grounds.