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Court acted reasonably in making absolute a conditional order of garnishee

By: James Cross BL

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Court of Appeal dismisses appeal from an order of the High Court making absolute a conditional garnishee order, on the grounds that: the trial judge acted reasonably and within the scope of her discretion in refusing to receive new evidence and re-open the case; and the substantive order was made well within the discretion of the trial judge as the proofs for the application were satisfied and no special circumstances were identified.

Appeal against order making absolute a conditional order of garnishee attaching a sum of money obtained by the defendant in other litigation, for the purpose of satisfying an award of damages - other litigation was taken by the defendant against its insurers and insurance brokers after the award made by the High Court in favour of the plaintiff, for the express purpose of securing funds to satisfy that award – amount recovered by the appellants in that other litigation was inclusive of the costs incurred by the appellant in pursuing those other proceedings - appellant has very little or no other means to satisfy the award made - loss of the index finger of his left hand in the course of his employment – High Court awarded him the sum of €100,000 in respect of general damages and €5,315.69 in respect of special damages – costs adjudicated in the sum of €123,896.86 including €8,965.00 in respect of the stamp duty payable – indemnity proceedings – settlement of indemnity proceedings - total sum of €250,000 - settlement with the Underwriters - Brokers provided for the division of the settlement sum as to €170,000 in respect of the legal costs of the appellant incurred in three separate sets of High Court proceedings – mediation - appellant notifies respondent of settlement of indemnity proceedings – garnishee application – conditional order - application to make order nisi absolute - application of appellant to introduce new evidence and to re-open decision - functus officio – Notice of Appeal - nine objections are all directed to the refusal of High Court to revisit her ruling - claimed that the court was in error in refusing to consider the terms of settlement and to hear the submissions of counsel that the terms of settlement created resulting trusts on the portion of the settlement monies that was expressly allocated to the costs of the appellant - costs claimed and recovered by a party to legal proceedings belong to that party, and not to its legal advisors - no money had yet been paid to the solicitors for the appellant by the Brokers under the terms of the settlement - not just that the trial judge was unaware of the full amount payable under the settlement agreement - neither was she aware of the clause that provided that the sum of €170,000 was expressly stated to be a contribution to the costs of the appellant in three sets of legal proceedings - clear that the trial judge did not consider the explanation offered by counsel to be adequate - trial judge listened carefully to the arguments made - not persuaded that the criteria for re-opening the earlier decision were satisfied - refused to receive the new evidence and she refused to re-open her earlier decision, for the same reasons - jurisdiction of a court to re-visit a decision already made - trial judge was manifestly dissatisfied with the explanation provided on 21st January as to why the settlement agreement had not been opened to her on 12th January - the trial judge acted reasonably and within the scope of her discretion in refusing to receive the new evidence and re-open the case, on the basis that she was not satisfied that there was good reason to do so - significance of the new evidence - does the new evidence establish a strong case that €170,000 of the settlement proceeds are subject to a Quistclose trust - clear that the fact that the Brokers agreed to pay a sum of money to the appellant to be paid towards the costs it incurred in the three sets of proceedings is not in itself sufficient to give rise to fiduciary obligations or a trust - furthest the matter could be put in this regard is that the Brokers intended this division of the settlement sum only to the extent that it was prepared to accede to the request of the appellant to express the settlement in this way - considerable doubt as to whether or not the appellant has the standing to make this argument at all - sum of €170,000, allocated at the request of the appellant to its legal costs, is not subject to a resulting or Quistclose trust as asserted by the appellant - the new evidence, had it been available to the trial judge on 12th January, would have had no bearing at all on the outcome of the application before the court on that occasion – solicitor’s lien – not made in the court below - proofs for the application were satisfied, no special circumstances were identified, and therefore the substantive order was made well within the discretion – appeal dismissed –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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