Omeyemmezu T/A Norlia Recruitment Service v First Care Ireland Ltd & ors [2020] IEHC 36 (23 January 2020)

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FIRST CARE IRELAND LIMITED, FIRST CARE IRELAND (BLAINROE) LIMITED, FIRST

CARE IRELAND (EARLSBROOK) LIMITED, FIRST CARE IRELAND KILCOCK LIMITED,

JUDGMENT of Ms. Justice Hyland delivered on the 23rd January 2020

1. This is an application for summary judgment against the Defendants pursuant to O. 37,

RSC in the sum of €749,353.40 together with interest due and owing to the Plaintiff by

the first named Defendant for services rendered and/or in the alternative of €100,606.14,

due and owing by the second named Defendant, €168,716.99 due and owing by the third

named Defendant, €220,518.31 due and owing by the fourth named Defendant,

€200,326.04 due and owing by the fifth named Defendant and €59,185.92 due and owing

by the sixth named Defendant, the combined total being €749,326.40 owed to the

Plaintiff for services rendered to the Defendants and/or each of them respectively.

2. This case has a somewhat tortured history in circumstances where judgment in the

amount sought was given by O’Hanlon J. on 1st July 2019 in the Defendants’ absence, in

circumstances where the Defendants did not appear due to inadvertence. A motion to set

aside that Judgment was brought. Ultimately the Judgment was set aside by way of an

Order of Humphreys J. of 25th September 2019. There has been an appeal against the

decision of Humphreys J. of 25th November 2019 to refuse the application made by the

Plaintiff for the DAR of the hearing which resulted in his decision but the outcome of that

appeal cannot affect the decision in this application and therefore I am in a position to

3. Accordingly, one High Court Judge has granted summary judgment in the matter and

4. I am now charged with the task of considering de novo whether the Plaintiff is entitled to

summary judgment according to the normal principles applicable to such an application.

5. The Plaintiff, an individual trading under the business name Norlia Recruitment Service, is

involved in the provision and recruitment of temporary/relief staff in the health care

sector, and the supply of same to entities such as the Defendants. Five of the Defendants

are companies that own and/or operate nursing homes, being the second to sixth named

Defendants. The first Defendant is the owner and/or operator of nursing homes and was

at all material times responsible for the management of the second to sixth named

6. The Plaintiff provided such services to the second to sixth named Defendants from May

2015 onwards up until the end of December 2017. It appears that the services for 2015

were paid for, with some deductions and credit given by the Plaintiff, in circumstances

where the Defendants say there was over-charging and the Plaintiff says the

deductions/credits were given in the interests of commercial relations. In my view that

dispute is not relevant to the matter before me since no monies are sought in respect of

services provided in 2015 and therefore I do not need to make a finding on same.

7. What is not disputed is that in respect of services provided by the Plaintiff from the start

of 2016 to the end of 2017 i.e. two years, no payment has been made and no invoices

8. The principles identifying when summary judgment ought to be granted are well-

established. In Ulster Bank Ireland Ltd v. Beades [2019] IESC 83, McKechnie J. held that

leave to defend should be granted where there is a fair or reasonable probability that a

real or bona fide defence exists or that what is averred in the Defendant’s affidavit is

credible. In Harrisrange Ltd v. Duncan [2002] IEHC 14, McKechnie J. noted that power to

grant summary judgment should be exercised with discernible caution. He also noted that

leave should not be granted where the only relevant averment in the totality of the

evidence is a mere assertion of the situation which is to form a defence. In Aer Rianta cpt

v. Ryanair Ltd (No 1) [2001] 4 IR 607, Hardiman J. identified that the Court must ask

whether the Defendant’s affidavit discloses an arguable defence. In IBRC Ltd. v.

“Insofar as facts are put forward, then subject to a very narrow limitation, the court

will be required, for the purposes of the summary judgment application, to accept

that facts of which the defendant gives evidence or facts in respect of which the

defendant puts forward a credible basis for believing that evidence may be

forthcoming, are as the defendant asserts them to be. The sort of factual

assertions, which may not provide an arguable defence, are facts which amount to

a mere assertion unsupported either by evidence or by any realistic suggestion that

evidence might be available, or, facts which are in themselves contradictory and

inconsistent with uncontested documentation or similar circumstances such as

9. The above case law makes it clear that there is a low bar for a Defendant to circumvent

10. In the Affidavit of Ms. Oneyemmezu sworn on 25th September 2018 grounding the

motion for judgment, Ms. Oneyemmezu avers that the services were provided pursuant to

a contract in writing dated 23rd May 2015 and she exhibits same together with the terms

of business and amended terms at “CO1”. She says at para. 5 that she was first

requested to provide staff by the deputy nursing home manager of the fifth named

defendant on 22nd May 2015, and that she supplied a staff nurse the following day and

other staff and that terms of business were furnished to the fifth named defendant and on

26th May 2015 a meeting was held with Ms. Mary Lloyd, nursing home manager with the

fifth named defendant and the signed contract was furnished by Ms. Lloyd to her.

11. She then avers at para. 6 to para. 9 that she concluded agreements to provide the sixth

named defendant, the third named defendant, the fourth named defendant and the

second named defendant with staff and same was governed by parole agreement and she

exhibits notes of memoranda of these conversations. Those exhibits were not legible and

I asked for better copies and same were provided to me. On inspection, what appears to

have been provided are sign in sheets for staff but they do not appear to refer to any of

12. Ms. Oneyemmezu then identifies certain terms of that contract with each of the

Defendants and says it was amended by written agreement on the 7th and 15th

November 2016 and refers to correspondence to this effect. I deal with that

correspondence in detail below. Also exhibited to the Affidavit are invoices for each and

every hour worked by the staff employed by the Plaintiff including the time worked, the

status of the staff (whether nurse or health care assistant), the amount charged and the

13. A replying affidavit was filed on behalf of all Defendants by Mr. Smith on 17th December

2018. In it he avers that identified that no sums were due and owing by the Defendants

or any of them to the Plaintiff and that such books and records did not disclose any

unpaid invoices due and owing to the Plaintiff by the defendants or any of them. He

avers that what is described as “First Care” was contacted by the Revenue Commissioners

and in response to an inquiry as to whether sums were due and owing, First Care

confirmed that no monies whatsoever were due and owing to Norlia Recruitment Service

in January 2018. It seems to me that the Defendants are making the case, as set out

below, that no monies were due and owing because contractual conditions had not been

complied with and it was in this context that the averments are made. As I have noted

above, there are no averments in the affidavit that the services were not provided as

14. Mr. Smith further avers that in respect of the agreement at “CO1”, (described by him as

an “SLA” (service level agreement)), signed by the Financial Director of the fifth named

defendant, Beneavin House Nursing Home, there is no signed counterpart from Norlia

Recruitment Service. At para. 7 it is alleged that there had been overcharging in respect

of services provided in 2015 and that as part of further discussions between First Care

and Norlia it was agreed that henceforth very detailed protocols for service delivery,

invoicing, supporting documentation and compliance validations would be provided to

First Care so as to ensure full transparency with respect to all aspects of the business

relationship with Norlia but that notwithstanding this agreement Norlia failed to adhere to

the agreed protocols. No detail is given of the alleged agreement made subsequent to

the SLA, or of documentation evidencing same or identification of the protocols alleged.

15. There is an assertion in para. 10 and 11 that there was a confusion on the part of the

Defendants as to who the Plaintiff purported to represent and it was identified that there

was an identity called Norlia Limited with an address in County Tipperary that was

dissolved as a limited liability company in 2017 and that Norlia had changed the names of

the legal entities on their invoices submitted throughout the course of trading. However,

no documentation was exhibited to support this averment and all invoices that were

exhibited to the affidavit of Ms. Oneyemmezu were sent by Ms. Oneyemmezu trading as

Norlia Recruitment Service. Accordingly, I do not accept that there was confusion of the

sort asserted and I do not believe this issue constitutes a prima facie defence to the

claim, although in fact as I understand counsel did not make the case that it constituted

16. At para. 4 of the replying Affidavit of Ms. Oneyemmezu sworn on 6th February 2019, she

avers that it was directly and/or implicitly agreed that the parties are bound by the

written terms of the written terms of the agreement executed and dated 23rd May 2015,

referred to by the Defendants as the SLA. At para. 5 it is averred that the payment of

invoices by the Defendants of amounts due and owing at the end of 2015 clearly

demonstrates acceptance of the terms and conditions of the contract.

17. Finally, there is the supplemental affidavit of Mr. Smith sworn 17th December 2019. The

Plaintiff refused to consent to its admission. Accordingly, at the start of the hearing, I

was required to rule on its admission. The justification for the late admission of an

affidavit after pleadings had closed was said by counsel for the Defendants to be because

of the necessity to address comments made in the course of the hearing before

Humphreys J. on 25th September 2019 and/or comments made in his written judgment.

Whether it was because of the hearing or whether it was because of the written

judgment, the fact is that the written judgment was delivered on 5th November 2019 and

the affidavit was not sought to be introduced until 17th December 2019 in respect of a

hearing fixed for 13th January 2020, where proceedings had issued on 14th June 2018.

By any standards that is very late in the day to seek to introduce new affidavit evidence.

Ultimately, I agreed that the affidavit should be introduced after counsel for the Plaintiff,

Mr. Quirke indicated that he would be in a position to deal with it in the course of the

18. In that Affidavit, Mr. Smith asserts that the defence to the claim is that the protocols

already agreed had not been complied with. He avers at para. 6 that there had been a

breach of the SLA and that additional charges had been imposed over and above the

agreed SLA terms. Reference is made at para. 8 to the email of 15th September 2016 and

the reference thereby to Mr. Byrne to the effect that rate charges applied as per the SLA.

At para. 11 it is averred that Mr. Byrne contacted the Plaintiff during September and

November 2016 in relation to the important price and related terms and conditions in the

SLA and all the critically important non-pricing related protocol agreed between the

parties to ensure that (a) there would be no reoccurrence of overcharging by the Plaintiff;

and (b) the Plaintiff and Defendants were operating legally in the eyes of the HIQA, NERA,

the Gardaí and the Revenue Commissioners. At para. 12 he says that as part of the SLA

the Plaintiff and Defendants have agreed that in order for any of the invoices to be

considered, accepted, approved and due for payments the Plaintiff is required to provide

the following to the Defendants with each invoice: (a) confirmation that the nurses

provided for the defendant’s nursing home are qualified and registered with the nursing

governing body, the Nursing and Midwifery Board of Ireland; (b) confirmation that all

nurses provided to the defendant’s nursing home were Garda vetted. He goes on to say

that both of those conditions are critical conditions for the Defendants’ nursing homes to

comply with the requirements of their governing body, HIQA. He asserts at the end of

para. 12 that if they did not comply with HIQA registration criteria they could lose their

licence, referring to the protocols “detailed in the SLA”. He goes on to say at para. 13

that the parties also agree that the Plaintiff would have in place a valid and current tax

clearance at the time of seeking a proposed payment from the Defendants and that the

Plaintiff agreed and to comply with this protocol the Plaintiff agreed that it would supply

the access number for verifying the tax clearance certificate online to the Defendants.

19. The primary bona fide defence that has been identified by the Defendants is that there

were protocols that had been agreed as part of the SLA whereby it was agreed that with

each invoice presented, the Plaintiff would provide proof that the relevant staff member

was qualified, was registered with the NMBI, and was Garda vetted. It was further

asserted it had been agreed that the Plaintiff would always have in place a valid tax

clearance certificate. The Defendants assert that due to alleged non-compliance with

these conditions, they are not obliged to pay on foot of the invoices raised by the Plaintiff

20. There is also a subsidiary defence which was only identified by counsel for the

Defendants, Mr. Fitzgerald BL in argument to the effect that the SLA exhibited is not the

agreement governing relations between the parties due to it being unsigned, that there is

no evidence of the contractual relationship between the Plaintiff and the first to fourth

Defendants and sixth Defendant, given that the SLA exhibited only refers to the fifth

Defendants, Beneavin House Ltd. and that there is uncertainty in relation to the terms of

the contract. He asserts that it necessary that those issues to be dealt with at oral

hearing and that there is accordingly a prima facie defence insofar as there is uncertainty

in respect of contractual conditions between the Plaintiff and the Defendants.

21. I will deal with the above defence first and then address the argument in respect of the

22. Before doing so, I should note that counsel for the Defendants asserted at the hearing

that he noticed a significant time gap between the issue date of the invoices and the time

to which they related. There was no complaint about this on affidavit or any assertion that

it constituted a defence to the claim for payment. Nor was any such argument made by

counsel for the Defendants. For that reason, I do not consider this observation relevant

Uncertainty in relation to the terms of the contract between the Plaintiff and the

23. As noted above it was asserted in Mr. Smith’s first affidavit that the plaintiff had not

signed the counterpart of the document exhibited at CO1. In that averment there was no

statement to the effect that the agreement was not binding or that it only bound one

nursing home, i.e. the one with whom the agreement had been signed. No conclusions

were sought to be drawn from the lack of a counterpart signature.

24. However, at hearing Mr. Fitzgerald BL for the Defendants asserted that only one

agreement had been exhibited, that the SLA was exhibited was unexecuted, that there

were five nursing homes as Defendants and the SLA exhibited only referred to one of

those Defendants, and that it was for the Plaintiff to make out their case. He submitted

the agreement between the parties was governed by an SLA and parole evidence as

supported by the exhibits. He argued that a plenary hearing was necessary to determine

the terms of the contract between the parties, given the lack of an executed written

agreement and the ambiguity between the parties re the terms of the agreement. He said

the question as to whether the protocols could form part of the contract was a matter to

25. I have some concerns about the Defendants’ argument that the SLA as exhibited did not

govern the agreement between the parties, given that in the context of the protocol

argument, the core defence identified was that the SLA contained the protocols allegedly

not complied with. Indeed Mr. Fitzgerald for the Defendants identified parts of the SLA

exhibited at CO1 to attempt to demonstrate to me where same were to be found. It is

therefore quite inconsistent for Mr. Fitzgerald to make the case that the SLA does not

apply while relying on same in support of his argument on the protocols. Moreover, as

referred to above, in both of Mr. Smith’s affidavits, he refers to the SLA with no

reservations about its applicability and exhibits emails from Cliff Byrne on behalf of the

Defendants that refer to the SLA, clearly treating same as the document that governs

contractual relations between the Plaintiff and all six Defendants.

26. However, the sequence of correspondence from 7th September 2016 to 15th November

2016 does give me considerable cause for concern in respect of the argument made that

the Defendants have a defence based on uncertainty in relation to the terms of the

contract and that a plenary hearing is required in respect of same.

27. Following the presentation of invoices for 2015, Mr. Byrne sent an email of 7th

September 2016 whereby he identifies minor issues in respect of the time sheets

submitted and evaluates the invoices by reference to the terms of the SLA in respect of

hourly rates and administration fees (allegedly not in compliance with the terms of the

SLA) and staff orientation and travel expenses (allegedly not provided for in the SLA). He

asks to meet up to resolve the issues. A further email is sent on 15th September 2016

stating that the invoice has been recalculated and the rates/charges as per the SLA have

been applied and that the recalculation will be applied to all previously submitted invoices

28. On 7th November 2016 Norlia reply responding to the points made and accepting certain

adjustments and indicating that the adjustments will apply in respect of the invoices from

29. On 15th November 2016, Norlia write to Mr. Byrne again referring to a telephone

conversation with Mr. Byrne of 10 November 2016 and stating that progress has been

made in terms of resolving matters raised by him in September and noting that no formal

response to that correspondence has been provided. The writer says they will be prepared

to accept certain arrangements in respect of the invoices for the period May to December

2015 in relation to the matters raised in September, viz travel costs, hourly rate,

administration fee and staff tailored orientation. They seek Mr. Byrne’s commitment to a

payment plan to ensure that fees are discharged in a timely manner in accordance with

the terms of a Schedule and enclose proposals in respect of the Schedule and ask that he

reverts to confirm same are acceptable. In respect of invoices for 2016 they say they will

issue replacement invoices for January and February and that the remaining invoices will

be furnished to him upon hearing from him in regard to the above arrangements (my

emphasis added). The letter concludes by saying that they will expect payment of each

invoice within 30 days and they seek confirmation that same is acceptable. This 30 day

period is a variation of the period of time identified in the SLA, being 14 days. Finally, the

writer asks Mr. Byrne to acknowledge receipt and to reply at earliest convenience as they

wish to conclude this matter without delay or further inconvenience.

30. Further, as noted above, the document exhibited at CO1 only refers to the Plaintiff and

the fifth named Defendant and there is no documentation exhibited in relation to the

contractual terms as between the Plaintiff and the other Defendants, although it does

appear that the Defendants proceeded on the basis that the SLA governed the

31. Having regard to the above chain of correspondence and the terms of CO1, it appears to

me that there is significant uncertainty as to the terms of the contract between the

various parties. The invoices the subject of this claim cover the entirety of 2016/2017.

The contractual arrangements applicable might be confined to those in the SLA, i.e. the

document exhibited at CO1; or they might be those that appear to have been unilaterally

applied by the Plaintiff set out in the 15 November letter (although the payment terms

are not disclosed as the proposals in respect of the Schedule are not exhibited); or they

might be those identified by the Defendants in the September 2016 emails; or they might

be some other set of terms altogether. What is clear is that there is a significant question

as to the contractual terms that govern the relationship between the parties for the years

2016/2017 and that having regard to the material exhibited, it is not possible to state

with certainty the contractual terms between the Plaintiff and each of the Defendants.

32. Applying the case law and having regard to the passage quoted above of Clarke J. in IBRC

v. McCaughey, I consider that the evidence before the Court is such as to suggest that

there is a real issue as to the contractual terms between the parties. I cannot characterise

the prima facie defence identified as simply a mere assertion unsupported by evidence or

33. In those circumstances, I am of the view that the Defendants have established a bona

fide defence in respect of the question as to the contractual terms that governed the

34. Given my conclusion above, it may not be strictly necessary to adjudicate on the defence

identified in respect of the protocols. However, for the sake of completeness, I have

35. Having regard to the document exhibited at “CO1”, referred to by the Defendants as the

SLA, I am satisfied that the SLA did not contain protocols requiring the submission each

time an invoice was presented of proof of the nurse’s registration, qualifications and

Garda vetting. There is no requirement in the SLA that same must be provided to the

36. This conclusion is borne out by the fact that invoices for 2015 were presented by the

Plaintiff and paid by the Defendants and none of those invoices include proofs of

registration, qualifications or Garda vetting. Despite there being queries by the

Defendants on the amounts in those invoices, no issue whatsoever was taken by the

Defendants in respect of the absence of registration, qualifications or Garda vetting. Nor

is there any correspondence exhibited by either party demonstrating that the Defendants

37. The Defendants placed significant reliance upon an email of 14th December 2017 from

Cliff Byrne to Norlia where he stated that in order to commence review, process, sign off

and payment, he required Garda vetting and relevant qualifications in respect of all staff

as well as a tax clearance certificate with an access number for online use. However, that

email does not even reference the SLA or assert that those requests are a condition of the

38. In relation to the alleged protocol in respect of the tax clearance certificate, it is

somewhat difficult to understand from the affidavits whether it was alleged that this was

part of the original SLA or was a later collateral contract. If the former, there was

certainly no obligation in the SLA placed on the Plaintiff to provide details of tax clearance

39. Accordingly, I find that on the evidence put before me by the Defendants, i.e. the SLA

and the emails, there was no obligation to comply with the protocols contended for by the

40. Equally, in relation to any collateral contract, amending the SLA, there is no evidence in

the Defendants’ affidavit as to the nature of any such collateral contract and how it may

have operated to impose an obligation to comply with the alleged protocols as a condition

of payment. In Mr. Smyth’s Affidavit of 2018, it is asserted at para. 7 that as a result of

further discussions it was agreed that very detailed protocols would be provided to First

Care. This is the height of the evidence on affidavit in respect of this alleged defence.

Taking it at its highest, this appears to be an assertion that there was some type of

collateral contract agreed or an amendment to the SLA post 2015. However, there is no

description of what was agreed, who agreed it, when it was agreed, the nature of the

obligation or any other detail whatsoever. Mr. Smyth makes an averment at para. 7 of his

first Affidavit to refer to an agreement in respect of protocols for service delivery,

invoicing, supporting documentation and compliance validation. This may refer to the

interaction in September and November 2016 although he identifies no details in respect

of same. Those emails have been described above and deal with a variety of matters,

notably agreed rates and payment terms but they make no reference whatsoever to

protocols in respect of qualifications, registration, vetting or tax clearance certificate.

Moreover, the averment at para. 7 is contradicted by the Supplemental Affidavit of Mr.

Smith of 17th December 2019 insofar as he avers that the protocols in respect of proof of

registration, qualifications and Garda vetting were always part of the SLA.

41. In summary, there is no basis disclosed on the affidavit evidence to support the assertion

that protocols in respect of registration, qualification, Garda vetting or tax clearance were

part of the contracts, whether the original SLA or a collateral contract or some

amendment to the SLA and that the alleged breach of the protocols justifies the non-

42. It is striking that nowhere in the affidavit evidence of the Defendants does Mr. Smith deny

that the services the subject matter of the invoices of 2016/2017 were provided to the

Defendants, being the provision of nursing and health care assistant services to five

nursing homes over two years. Rather, he denies that the monies sought are due and

owing. If the Plaintiff is correct and the monies sought are due and owing, those monies

have been outstanding for some very considerable amount of time. In the circumstances I

would urge both parties to expedite the trial of this matter.

Result: Application for summary judgment; refusal on the basis that the Defendants had identified a bona fide defence; liberty to defend granted.

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