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GAZETTE
DECEMBER 1989
Set-Off and Counterclaim -
Deciphering the Irish Rules
Since
Prendergast -v- Biddte
1
is the
leading Irish case on Set-Off and
Counterclaim, it is most unfor-
tunate that it was never reported.
The modern reader is faced with a
transcript so appalling that it calls
for the skills of an archeologist
rather than a lawyer. And decipher-
ing the four Judgements delivered
in the Supreme Court may not
make one much wiser. In 1957 the
Supreme Court frequently sat with
four Judges; on the face of it one
might assume this to be true of
Prendergast
in which there were
four judgements delivered. Given
that these four Judgments contain
widely divergent views on the pro-
cedure in such cases, one would
have some difficulty working out
the ratio. Research
2
will reveal that
Martin Maguire J. sat on the appeal
and concurred with Lavery J., thus
forming with O'Dalaigh J. a clear
majority view. Unfortunately the
lack of a proper Report has led to
widespread quotation of Kingmill
Moore J's Judgment with the
assumption that he can speak for
the majority; in fact, certain
passages in his Judgment cannot
be reconciled with the majority
view, or even with other passages
in the same Judgment.
Facts
The Plaintiff issued a Summary
Summons for £1,992 due for
training and maintenance of the
Defendant's horses: the Defendant
admitted the debt but sought leave
to defend by filing a Counterclaim
for damages for breach of a con-
tract to sell a half share in a mare.
Murnaghan J. refused to give leave
to file a counterclaim stating
3
that
the Plaintiff appeared to be entitled
to Judgment and that if he had
discretion, he would exercise it in
the Plaintiff's favour. The Defend-
ant appealed to the Supreme Court,
who dismissed the appeal by a 4/1
majority.
Procedure
The problem for the Supreme Court
was a possible conflict between
two of the Rules of Court: and
since the 1986 Rules contain
almost identical provisions, the
divergence between them remains.
Order 19 Rule 2 of the 1986
Rules (replacing Order 19 Rule 3 of
the 1905 Rules) provides:-
"A defendant in an action may
set-off, or set up by way of
counterclaim against the claims
of the plaintiff, any right or claim,
whether such set-off or counter-
claim sounds in damages or not,
and such set off or counterclaim
shall have the same effect as a
cross action, so as to enable the
Court to pronounce a final judg-
ment in the same action, both on
By
Chr i s t opher Doyle,
Bar r i s t er - a t -Law.
the original and on the cross
claim. But the Court may, on the
application of the plaintiff before
trial, if in the opinion of the Court
such set-off or counterclaim can-
not be conveniently disposed of
in the pending action, or ought
not to be allowed, refuse per-
mission to the defendant to avail
himself thereof".
Order 37 Rule 7 of the same
Rules (replacing Order XV Rule 5 of
the 1926 Rules) in dealing with a
Motion for liberty to enter final
Judgment on a Summary Sum-
mons, provides:-
"Upon the hearing of any such
motion by the Court, the Court
may give judgment for the relief
to which the plaintiff may appear
to be entitled or may dismiss the
action or may adjourn the case
for plenary hearing as if the
proceedings had been originated
by plenary summons, with such
directions as to pleadings or
discovery or settlement of issues
or o t he rw i se as may be
appropriate, and generally may
make such order for determin-
ation of the questions in issue in
the action as may seem just".
If Order 19 prevails, a Defendant
has the right even in summary
proceedings to file a Defence by
way of counterclaim and it would
be for the Plaintiff to seek to have
it struck out; therefore a Judge
hearing a contested Motion for
summary judgment should, it
appears, give leave to defend
whereever a plausible counterclaim
is suggested. But from Order 37 it
appears that on a Summary Sum-
mons a defendant has no right to
file a Defence without express
leave of the Court; and while the
language of Rule 7 may be wide
enough to entitle a Judge to give
leave for filing a Counterclaim
which is not a defence, other rules
of the same Order refer to a good
defence going to the Plaintiff's
claim.
4
Overall, Order 37 would
not appear to allow the filing of a
Counterclaim which does not meet
the Plaintiff's claim.
The Judgments
Maguire C.J., dissenting, was
satisfied that Order 19 should pre-
vail. He was fortified by Seciton 27
(3) of the Judicature Act, 1877
which empowers a Court on the
hearing of the Plaintiff's claim to
give the Defendant any relief he
might have been entitled to on a
separate action against the Plain-
tiff. He said:
Christopher Doyle,
3 67