The Gazette 1989

DECEMBER 1989

GAZETTE

) INSURANCE ACT SEMINAR A seminar will be held in Blackhall Place on Thursday, 16th November at 7 . 15 p .m. on The Insurance Act, 1989" A panel of speakers will look at the practical and legal implications of the legislation. Entrance Free - All welcome. Michael Irvine, Chairman, Company Law Committee CAPITAL ACQUISITIONS TAX -A PROBLEM ? Investment in Woodland should be part of the solution. Contact: Woodland Investments Ltd., New Dock Street, Galway. Phone:091-62016. Fax: 091-65821.

counterclaim the practice in the High Court now apparently runs contrary to authority, and the authority most likely to be cited in this regard is in effect a dissenting view. Hopefully when the issue next reaches the Supreme Court, Prendergast -v- Biddle will be reviewed and a clear indication given as to whether the majority view, the contrary but equally rigid view of Maguire C.J., or the discretion suggested by Kingsmill Moore J., is the correct approach. ( I ) Supreme Court, 31st July, 1957, Unreported. ( 2 ) Particular thanks are due to Miss Peggy McQuinn, of the Supreme Court Office Judgments Section, for her invaluable assistance in checking the Supreme Court records. ( 3) It is not clear whether his Judgment was reserved or extempore, although the Supreme Court evidently had a full note of it. ( 4) Order 37, Rule 8,9. ( 5) At page 6 of his Judgment. ( 6) At page 4 of his Judgment. (7 ) At page 2 of his Judgment. ( 8) Agra Trading -v- Minister for Agriculture, High Court, 19th May, 1983, Unreported. ( 9) For a full review of this area of the law, see Hanak -v- Green [1958] 2 Q.B. 9. (10) [1978] I.R. 167. ( I I ) See Footnote (8) above. (12) At pages 10 to 11 of his Unreported Judgment. (13) At page 11 of his Unreported Judgment. •

that the Plaintiff was solvent, had a proven claim, and had acted speedily, whereas the Defendant's claim was dubious, unquantifiable and likely to involve great delay; accordingly he refused leave to defend. The Judge cannot be faulted for his evaluation of the relevant factors or his conclusion. But (whatever was agreed by the parties) did he in fact have a discretion to allow an unrelated counterclaim? It appears that three out of five Judges in Prendergast while doubtless agreeing with the result he reached, would have found that he should have dis- missed the Defendant's application out of hand, while Kingsmill Moore J., on whom he relied, expressed different views in different parts of his Judgment. Conclusion The point is not academic: in practice many defendants in sum- mary claims will have plausible cross allegations involving unliqui- dated amounts. The rules for determining equitable set off are not always easy to apply, and in any case many cross claims clearly fall outside that category, counting as unrelated coun t e r c l a ims, not defences. One case likely to arise in practice is the claim by a Bank on an overdrawn current account met by a cross allegation of libel in dishonouring cheques drawn on it. Should the Court find that this is a set off, it may clearly be pleaded; should the Court find it to be a

Doyle Court Reporters

Court and Conference Verbatim Reporting

2, Arran Quay, Dublin 7. Tel: 7 2 2 8 33 or 8 6 2 0 97 (After Hours)

Excellence in Reporting since 1954

3 69