The Gazette 1989

GAZETTE

DECEMBER 1989

"The real issue between the

parties is who is indebted to the

other and in what sum . . . no

case is made that there would be

any confusion arising on the trial

of the action. Obviously it would

be confined to the issue on the

Counterclaim, Accordingly I see

no reason for denying to the

Defendant her right under the

Act of 1877 and Rule 19 (3) to

set up her counterclaim".

Lavery and O'Dalaigh J.J. were

certain that the summary pro-

cedure permits a defendant to raise

a defence to the merits, or by way

of set off (common law or equit-

able) but not to file an unconnected

counterclaim. Lavery J. said:-

" I n my opinion the trial Judge

must pronounce Judgment and

if there is no defence - either

set off or any other - he must

give Judgment for the Plaintiff.

The procedure by Summary

Summons was provided in order

to enable speedy justice to be

done in particular cases where

there is either no issue to be tried

or the issues involved are simple

and capable of being easily

determined. I conclude that it

would be contrary to the spirit

and the letter of the Rules to

deny a Plaintiff such relief."

O'Dalaigh J. said:-

" I therefore cannot see that the

new Rule can in any way be cut

down or controlled by the pro-

visions of the Judicature A c t . . .

that the Rules of 1926 permit a

Judge to enter up Judgment for

a liquidated sum admitted to be

due is not a matter for surprise.

The law attaches to a Judgment

debt several privileges."

Since Martin Maguire J. con-

curred with Lavery J., this was in

effect the view of the Court.

Kingsmill Moore J's Judgment is

the fullest and best known, but also

the most problematical. At page 10

he said:-

" I f there appears to be a de-

fence, or a set off, common law

or equitable (which is regarded

as a defence) the case must to

to a plenary hearing where such

defence can be fully investi-

gated . . . if however, there is no

defence suggested it seems to

me that the Plaintiff is entitled to

his Judgment".

If this is the ratio of his Judgment

then he was in full agreement wi th

the other majority judges. However,

at pages 6 to 7 there is a passage

which must be considered because

it has recently been cited wi th

approval in the High court

and

whiph suggests an approach closer

to that of Maguire C.J. The relevant

extract is:-

"If however the Defendant while

admitting that he has no direct

defence to the claim, puts for-

ward a plausible counterclaim, a

difficult problem must arise . . .

on the one hand it may be asked

why a Plaintiff with a proved and

perhaps uncon t es t ed claim

should wait for judgment or

execution of judgment on his

claim because the Defendant

asserts an improved (sic) and

contestable counterclaim. On

the other hand it may equally be

asked why a defendant should

be required to pay the Plaintiff's

demand when he asserts and

may be able to prove that the

Plaintiff owes him a larger

amount. To such questions there

can be no hard and fast answer.

It seems to me that a Judge in

exercising his discretion may

take into account the apparent

strength of the counterclaim and

the answer suggested to it, the

conduct of the parties and the

promptitude with which they

have asserted their claims, the

nature of these claims and also

the financial position of the

parties. If for instance the

Defendant could show that the

Plaintiff was in embarrassed

c i r cums t ances it mi ght be

considered a reason why the

Plaintiff should not be allowed to

get J u d gme n t . .. until after the

Counterclaim had been heard

. . . I mention only some of the

factors which a Judge before

whom the Application comes

may have to take into account in

the exercise of his discretion".

This can only mean that the

Judge has a discretion to allow the

filing of an unrelated counterclaim

- a statement which flatly contra-

dicts the Judgments of Lavery and

O'Dalaigh JJ. and the later part of

Kingsmill Moore J.'s own judgment.

Ratio

To summarise, so far as one can,

the effect of the decision: all the

Judges agreed that a Defendant

may contest the Plaintiff's entitle-

ment to a summary judgment on its

merits.

All agreed a Defendant may set

off any liquidated sum due from the

Plaintiff - this is a defence, not a

counterclaim.

All agreed the Defendant may as

a defence set off an unliquidated

sum by way of equitable set off i.e.

where the claims are so closely

related that in justice they must be

regarded as part of the same claim.

As to a counterclaim for an

unliquidated amount not amount-

ing to an equitable set off, three of

the Judges took the view that the

Court had no discretion but must

give the Plaintiff Judgment, the

fourth took a directly contrary view

and stated that the Court must

allow the Defendant to file the

counterclaim, while the fifth firstly

suggested that the Court has a

discretion and then apparently

altered his view to agree with that

of the majority.

It appears therefore, that the ratio

Prendergast -v- Biddle

is that a

counterclaim for unliquidated dam-

ages can never be pleaded against

a claim for a liquidated amount

which is admitted to be due.

Subsequent Lew

Given the problem of finding the

ratio of

Prendergast

it is not

surprising that in subsequent cases

Judges have confined themselves

to quoting whatever extract seems

appropriate; however the danger of

missing what was the majority

view is obvious. In

Gerrit van

Gelderen -v- Sea field

Gentex

Kenny J. quoted a passage from

Kingsmill Moore J's Judgment to

support the rule that unliquidated

damages can never be set off

against a claim for a negotiable

instrument. In

Agra Trading -v-

Minister for Agriculture"

the Court

was faced with the same problem

as in

Prendergast'.

the Plaintiff

sought summary judgment for a

liquidated sum, the Defendant

admitted a debt and sought to file

a counterclaim seeking unliqui-

dated damages. Barrington J.

referred

to the divergence

between Order 19 Rule 2 and Order

37 Rule 7 and then stated that the

parties agreed it was within his

discretion whether or not to allow

a counterclaim to be filed.

referred for guidance to the

passage at pages six and seven of

Kingsmill Moore J.'s Judgment in

Prendergast

quoted above. Apply-

ing the conditions there he found

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