Who do you blame for mistakes?
- By James Ferguson
Attention to detail is often dismissed as pedantry by those who do not possess it. The High Court in Dublin recently considered the costs implications of a failure to comply with formalities when serving proceedings outside of the jurisdiction.
Two defendants were registered outside of Ireland: one in Mauritania, the other in Canada. As neither jurisdiction is a party to the Lugano Convention, an order of the High Court was required before the intended proceedings could be issued and then served. Leave was granted in October 2019.
The Rules of the Superior Courts specify the formalities for service in such cases. This includes the preparation of an ex parte docket identifying the precise subparagraph relied upon.
The transcript of the hearing reflected that counsel for the plaintiff had referenced the appropriate subparagraph (Order 11, rule 1 (h)), which was the basis on which leave was granted.
The ex parte docket, however, simply referenced the order and rule (Order 11, rule 1) without specifying the subparagraph (Order 11, rule 1(h)). The formal order of the court mistakenly referenced subparagraphs (Order 11, rule 1(e) and (f)). Such pedantry was lost on the plaintiff’s solicitor, who purported to serve the defective order and accompanying proceedings, on the second and third defendants, in September 2020.
The second and third defendants entered a conditional appearance in October 2020. challenging jurisdiction and service. The plaintiff then sought to correct the “…clerical mistake…or an error arising therein from an accidental slip” in the October 2019 order.
In May 2021, a transcript of the digital audio recording confirmed that the correct subparagraph was the basis for the October 2019 order. The defendants did not object to the order being amended on this basis.
The defendants did, however, seek their costs. The plaintiff contested their application.
The difficulties in the present case commenced with the failure on the part of the plaintiff’s legal representatives to comply with the requirement to state in the ex parte docket the subparagraph of Order 11, rule 1 being relied upon. This difficulty was compounded by their subsequent failure to check the terms of the order as drawn up, with the consequence that the error in the order was not spotted.
A defect cannot be overlooked as a mere technicality, but must instead be rectified by ensuring that the proceedings are now issued and served in the manner prescribed.
The plaintiff was held to be liable for the costs associated with their non-compliance with the formalities of Order 11.
The pedantry of law is not a mere technicality. The effective practise of law often takes a pedant. Cases can be won, or lost, on that attention to detail.
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