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In recent times the Master of the High Court, has in summary cases interpreted the Rules of the Superior Court as providing him with a jurisdiction to strike out proceedings where the Plaintiff is on notice of a defence.
The High Court, in The Governor and Company of the Bank of Ireland v Ian Dunne and Andrea recently considered the Masters’ power to strike out summary proceedings, where the Plaintiff is on notice of a defence.
The Plaintiff had sought judgment against the Defendants for sums due under a loan agreement. Appearances were entered to the proceedings and replying affidavits were filed in respect of the motion seeking liberty to enter final judgment. The Plaintiff conceded that the matter was contested and appropriate to be transferred to the High Court list. The Defendant argued that since the Plaintiff was aware when the proceedings commenced that the Defendant had a substantive defence, the proceedings should be struck out as they were inappropriate for the High Court summary procedure. In a reserved decision, the master struck out the proceedings. The plaintiff appealed the Master’s decision to the High Court.
The issue that came before the Court for consideration was whether the Master had jurisdiction to dismiss the proceedings, as he did, or was he compelled in the circumstances where this was a contested case, to put the matter in the Judge’s List.
Justice Kearns noted that the procedure governing the hearing of Summary Proceedings was set out in Order 37 of the Rules of the Superior Courts. The Court reviewed these provisions and in particular the powers of the Master in non contested cases and contested cases. Order 37 (6) deals with contested cases and provides, “the Master shall transfer the case, when in order on the first opportunity”.
The Court went on to hold that;
“The Master has no discretion in a contested case. Where a case is contested, the Master is obliged by the rules of court to transfer the case to the Court list for hearing at the first opportunity. The only qualification to that requirement is that he may, on consent, adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons. Further, where a case is contested and there is some inadequacy as to form, the Rules do not confer on the Master a jurisdiction to dismiss the proceedings out of hand, his jurisdiction, clearly spelt out in the Rules, permits him only to go so far as to decline to transfer the case to the court list until those deficiencies are rectified and the matter thereby become ‘in order’”.
The Court further noted that the power to dismiss a contested case is reserved to the High Court by Order 37 rule 7. Accordingly, the master has no jurisdiction to strike out the proceedings where the claim was advanced on a summary basis notwithstanding a known defence.
The decision by the High Court confirms that for summary proceedings, the Master’s powers are limited to the specific empowerments as provided for in the Rules of the Superior Courts. The decision clarifies the ambiguity that had arisen from the Masters decision on summary proceedings. While a party who is considering summary proceedings in respect of liquidated damages should consider if the defendant has a real and bona fide defence and if so, it may be preferable and more cost effective to being proceeding by Plenary Summons. However, knowledge of a basis for a defence to a liquidated damages claim should not preclude a plaintiff from commencing proceedings in the manner that it deems appropriate.
  IEHC 484
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