Green Property wins case brought by bogus car firm

A property firm successfully beat off a damages claim by what turned out to be a non-existent company, the Circuit Civil Court has been told.

But Green Property has now failed in a bid to recover almost €8,000 legal costs from a leading car hire company it believed was the real party behind the claim.

Rossa Fanning, counsel for Green Properties, told the court that Denis Mahony Rent A Car Ltd, Kilbarrack Road, Dublin, had in 1998 sued Green Property for €16,500 following the theft of a Hi-Ace van from Blanchardstown Shopping Centre, which is owned by Green Properties.

He said Green Properties had defended the action and, in February 2003, successfully applied to the court for the action to be dismissed for want of prosecution together with their legal costs.

Mr Fanning said that when Green Properties had attempted to execute its court order for legal costs, it learned there was no such company as Denis Mahony Rent A Car Ltd.

He said Green Properties was yesterday seeking to re-enter the initial proceedings, amending the title of the plaintiff in both the initial action and the legal costs order from Denis Mahony Rent a Car Ltd to Denis Mahony Contract Rental Ltd. Mr Fanning said solicitors for Denis Mahony Contract Rental Ltd had written to state this company was a stranger to the action and had not instructed any solicitors to take an action on its behalf against Green Properties.

He said the Supreme Court had suggested in a 1999 decision that a final order could be interfered with "in special or unusual circumstances".

Mr Fanning said there had to be a powerful public policy consideration in granting the relief he was seeking; otherwise the court would, in effect, be creating a perverse incentive for plaintiffs to sue under an incorrect version of their own name whether that be an individual or company.

He said clearly an error in title had been made and he believed the court had jurisdiction in the special and unusual circumstances of the case to vary its final order.

Kevin D'Arcy, counsel for Denis Mahony Contract Rental Ltd, said that what Mr Fanning in effect wanted to do was to create a new party to the action and there was absolutely no legal precedent for that. The initial proceedings had been taken by a non-existent entity and the court could not now alter or amend the pleadings after judgment.

He said Mr Justice Murnaghan in a Supreme Court decision in Cox v the ESB in 1942 had held that the court had a very wide power of amendment up to final determination.

When an action had proceeded to trial, and judgment had been given, it was not open to the court to allow an amendment of the pleadings which, while the original judgment stood, might introduce a new cause of action and possibly lead to a different judgment. Mr D'Arcy said there was no legal authority which stated a party could amend its pleadings post judgment.

It would appear no check had been carried out by Green Property to ensure the company suing them actually existed.

"Denis Mahony Contract Rental is not and was never part or party to this action; never instructed anyone and does not have a judgment against it. Green Property cannot recover costs against an entity that was never party to the proceedings," he said.

Judge Lindsay said there was an actual order of the Circuit Court still in being and it was quite clear from the legal authorities that, while an original judgment stands, the pleadings and parties to the action could not be amended.