391 / 482
GAZETTE
DECEMBER 1989
)
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
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
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.
•
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.
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