The High Court has dismissed a second application by Eugene McCool to replace McCool Controls and Engineering Limited as plaintiff in its proceedings against Honeywell Control Systems Limited. Mr Justice Garrett Simons ruled that an earlier High Court decision created an issue estoppel, preventing Mr McCool from relitigating his entitlement to be substituted while his appeal against that decision remained pending.
The proceedings began in 2005. The company’s pleadings had closed by 2007, but no trial notice had been served. Its solicitors were permitted to come off record in March 2018.
In April 2018, the High Court set aside an order allowing Mr McCool to replace the company. That earlier judgment found that a 2017 assignment of the proceedings to him was an invalid device to avoid the rule that a company must be represented in court by a qualified lawyer. It also found that the assignment savoured of champerty. Mr McCool appealed that decision to the Court of Appeal.
The second application relied on an assignment dated 29 June 2018. Mr McCool argued that it differed from the first, including because it omitted an express provision allowing onward assignment. The defendant objected, arguing, among other things, that the earlier decision barred the application and that the second assignment was also a device to avoid the company-representation rule.
At the hearing on 17 October 2019, Mr McCool sought an adjournment, saying he was in discussions with law firms that might take over the case. Simons refused. He noted that a similar basis had led to an adjournment about a year earlier, without progress, and said it would be unreasonable to delay proceedings that had begun in 2005.
The judge concluded that there had been no material change in circumstances between the two assignments. He relied on the board minutes and Mr McCool’s statements, which continued to describe the company as dependent on him to bring the case to trial and as having an interest in the litigation. He held that the 2018 finding about using an assignment to avoid the requirement for legal representation was decisive. The omission of an express onward-assignment clause did not address that finding.
Simons said the court was not deciding whether the 2018 judgment was correct; that issue could be pursued in the pending appeal. He also said it was unnecessary to decide the defendant’s other objections. Although he noted that a clause in the second assignment appeared to contemplate further assignment, he did not determine the champerty objection. The court refused the relief sought and dismissed the application.