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1. The Plaintiff bank seeks liberty to enter final judgement in the sum of £ 292.67p as against the Defendants. The Plaintiff initiated these proceedings by Summary Summons on the 24th of April 1995. The banks claim is essentially for an amount allegedly due to it by the Defendants and each of them on foot of two joint accounts together with interest at current bank rates until the date of judgementor payment. The accounts in question were a current account and a term loan account maintained by the Defendants at the Plaintiff’s branch at 57 Market Street, Cootehill, in the County of Cavan.

2. The Plaintiff’s claim is grounded upon an affidavit of debt of 16 March 1998 sworn by William A. Duffin, Manager of the Plaintiff at it’s said branch at 57 Market Street, Cootehill. In a further affidavit of the 11th of January 2000, Mr. Duffin deposes that as a result of the Defendantsfailure to discharge sums due and owing as of the 6th of September 1989 a special summons was issued by the Plaintiff bank on the 21st of May 1990 claiming inter alia “Possession of the hereditaments and premises specified in the schedule hereto being their additional premises comprised in and mortgage by a Deed of Mortgage dated the 11th August 1988 and made between the Defendants of the one part and the Plaintiff of the other part”.

3. It appears that after the issue of those proceedings the Defendants indicated that they hoped to obtain money from proceedings against a third party, which would be used to repay the Defendants’ indebtedness to the bank. However, it appears that the sums due to the bank were not paid and that the Plaintiff bank brought an application to the High Court for an order for possession which was heard by Mr. Justice Egan on the 4th of December 1990 when the Plaintiff obtained against the Defendants an order for possession pursuant to the indenture of mortgage which the Defendants did not dispute. These proceedings were entitled Ulster Bank Limited Plaintiff against Patrick Lyons and Roisin Lyons Defendants and bear the record number 1990 No 340Sp Court 6.

4. While the Plaintiff bank obtained the said order for possession, it refrained from enforcing the order, in order to facilitate the Defendants in the continued prosecution of their proceedings against the third party. At paragraph 5 of the affidavit of the 11th of January 2000, Mr. Duffin states as follows:

5. He then indicates that the amount claimed in these proceedings contains continuing interest, which has accrued over the considerable period since the call up on the 6th of September 1989. Mr. Duffincontinues as follows:

6. The contents of paragraph 5 quoted above are at the heart of the dispute, which comes before this court. The Defendants’case is that the current proceedings are substantially the same as those in the mortgage suit instituted in 1990 and that it involves the same indebtedness, the proof of the same indebtedness being the prerequisite to obtaining the order obtained from Mr. Justice Egan made on the 4th of December 1990.

7. The Defendants rely on the authority of the White -v- Spendlove [1942] I R 224 in support of the contention that the matters pleaded in these proceedings are governed by the doctrine of ResJudicata and that accordingly the Plaintiffs bank is estopped from maintaining the within claim. In the case of White -v- Spendlove the Chief Justice, OSullivan C.J., held that the Plaintiff’s claim in the action failed, based upon the dismissal of the Plaintiff’s counterclaim in former proceedings between the same parties, in which she was Defendant. The Chief Justice held that the claim in the fresh action and the counterclaim in the former action were “based on substantially the same cause of action ”. In the same action Mr. Justice Meredith delivered a dissenting judgement in which he was of the opinion that they were different causes of action, as evidenced by “different complex of facts relevant” . Adopting this language, counsel for the Defendants submits that in the current proceedings there is no “different complex of facts relevant ”.

8. The Defendants further contend that the Plaintiff’s claim is estopped in so far as it should have being brought within the terms of the earlier claim with which it is interlinked. It is submitted that the courts abhor a multiplicity of proceedings and that the Plaintiff’s obligation was to bring all matters arising out of the same circumstance in the same set of proceedings. In this regard the Defendants rely upon the authority of the case Henderson -v- Henderson 3 Hare 100 for the year 1843. In this case Vice Chancellor Wigramindicated at page 114 and 115 of the report that it was the rule of court that:

9. The Vice Chancellor continues

10. The authority of Henderson’s Case was applied in the case of Talbot -v - Berkshire County Council [1994] Q B 290 where Lord Justice Stuart Smith quoted from the judgementof the Chancellor Wigram in Henderson’s case and in particular the passages already quoted in this judgement. In the Talbot case the High Court judge found that the Plaintiff was estopped from bringing the action by reason of the principles of the doctrine Res Judicata . However the High Court Judge found there were special circumstances which justified the non-application of the rule in Henderson Case . Lord Justice StuartSmith having quoted from the judgment of the Vice Chancellor in Henderson’s case stated as follows in relation to the rule in question:-

11. On behalf of the Plaintiff, counsel submitted that the rule as stated in Henderson's case did not apply in the instantcase because the rules of court preclude the matters raised in these proceedings from being raised in the Chancery Special Summons that was previously issued. Counsel had referred this Court to the provisions of Order 2 of the Rules of the Superior Courts relating to procedure by Summary Summons. In particular Counsel referred to the provisions of Order 2 r. 1(1) which provides, that procedure by Summary Summons may be adopted in all actions where the Plaintiff seeks only to recover a debt or liquidated demand in money payable by the Defendant with or without interest. It was submitted by Counsel that there is no provision for procedure by Summary Summons to include relief by way of a declaration. Order 3 of the Rules of the Superior Courts provides for procedure by way of a special summons and at a sub-rule 15 it provides for such procedures to be adopted as in the case of “Sale, delivery of possession by a mortgagor, or redemption, reconveyance or delivery of possession by a mortgagee”. Counselfurther referred the Court to provisions of Order 37 dealing with hearings or proceeding commenced by Summary Summons and Order 38 dealing with the hearing of proceeding commenced by Special Summons and contrasted the procedures in each case. Counsel submitted that it was not possible under the rules to deal with both matters in the same set of proceedings and on this basis submitted that it took the current matter out of the ambit of the principle laid down in Henderson’s case . Counsel submitted that the mortgage suit did not determine the final amount due under any debt, it was simply a claim for possession. It was submitted that it amounted to a judgement in rem .

12. It is clear from the evidence before the court that in 1990 the Solicitors acting for the Defendants in these proceedings urged the bank to suspend taking further action in the proceeding in seeking possession of the Plaintiff’s lands under the mortgage suit and this was indicated first of all in a letter of the 23rd of May 1990 and reiterated in a letter of the 16th of October 1990. In the latter letter it was indicated that the premises were already heavily mortgaged.

13. With regard to the issues being the same, counsel for the Plaintiff adopted for the purposes of this argument a passage in a recently published book by Paul A. McDermott entitled R es Judicata and Double Jeopardy , published by Butterworths in 1999. In this regard I have being referred to the judgement of Costello J in the case D -v D [1984] ILRM173 where at page 193 of the report quoting from Halsbury’s Laws of England , Fourth Edition, Volume 16 at paragraph 1530 he spoke in terms of “the precise point ” being litigated twice, and Keane J describing issues as being “precisely the same ” in both actions in his judgement in Mc Auley-v- McDermott [1997] 2 ILRM 486 at page 492. Counsel has on the facts of this case submitted that the precise point is not being litigated twice, that the issues being litigated are not in the words of Keane J “precisely the same” and furthermore that they are not “substantially the same ” and on this basis counsel has submitted that Henderson’s case does not apply. With reference to the case of White -v- Spendlove relied upon by counsel for the Defendants, counsel for the Plaintiff has submitted that this is not a new action in terms of the same issues having being raised. In reply to the points raised by counsel for the Plaintiff, it was submitted that an indebtedness had to be established in the proceedings commenced by a Special Summons and there was no bar in those proceedings to establishing the debt and claiming the relief claimed in the Summary Summons herein. It was further submitted thatthere was no provision in the Rules whereby a claim in a Summary Summons may not be included in a claim in a Special Summons. Counsel for the Defendants reiterated that the Plaintiff in these proceedings could have and should have included the claimin these proceeding in the earlier proceedings.

14. The issues in these proceedings are essentially issues of fact and whether the principles laid down in the Henderson case have any application to these particular facts. While there are certainsimilarities in the proceedings commenced in 1990 and the instant proceedings commenced in 1995, I am of the opinion that they are not “substantially the same”and furthermore it was not appropriate that the relief sought in the 1995 proceedings be included in the earlier proceedings. Accordingly, I am of the opinion that there is no rule that precludes the Plaintiff from maintaining this action. Furthermore, there is no inconsistency between the action being taken in the later proceedings to thosetaken in the earlier proceedings which is an essential difference to the situation arising in the case of White -v- Spendlove and in Henderson’scase referred to in this judgement. I accept the submissions in this regard made on behalf of the Plaintiff and accordingly I will give judgment to the Plaintiff .