Judgement Finality

Cases

Dublin Corporation v BATU

The Right Honourable the Lord Mayor, Aldermen and Burgesses of the City of Dublin v Building and Allied Trade Union and its Trustees, James Foley, Frederick Hosford, Dermot Gray, James Lyons and Laurence O’Brien

1996 No. 112

Supreme Court

KEANE J

(Hamilton CJ, O’Flaherty, Blayney and Barrington JJ concurring) delivered his judgment on 24 July 1996 saying: In 1982 the plaintiffs/respondents (whom I shall refer to as ‘the corporation’) acting in its capacity as road authority decided to widen Cuffe Street. To that end, they made a compulsory purchase order which was duly confirmed by the Minister for the Environment on 2 September 1983. One of the properties affected by the order was a building known as the Bricklayers’ Hall which was owned by the defendants/appellants (whom I shall refer to as ‘the union’) who were then described as ‘the Ancient Guild of Incorporated Brick and Stonelayers’. The front façade of the building was, appropriately enough, a fine example of the stonemasons’ and bricklayers’ craft.

At an arbitration conducted by Mr Sean M. McDermot, the duly nominated property arbitrator, to determine the amount of compensation to be paid to the union, its secretary, Mr Kevin Duffy, gave evidence on oath that:

(a) the Bricklayers’ Hall was an integral part of the union’s activity,

(b) the union was unlikely to be in a position to rent similar premises with the same facilities, and

(c) it was the intention of the union to rebuild the Bricklayers’ Hall and to reinstate the façade.

Two alternative bases for the assessment of the compensation to be paid to the union were presented to the arbitrator. The first was on the basis that the corporation acquired the entire building, and not merely the front portion required for road widening, and sold or similarly disposed of the remainder to recoup their expenditure. The second was on the basis that the corporation only acquired so much of the property as was needed for road widening, thereby enabling the union to reinstate the building, complete with façade, on the reduced site.

Prior to the arbitration the corporation and the union, acting through their professional advisers, sensibly agreed the sums that would be payable, depending on which basis the compensation was to be assessed. Under the first method, it was £87,857. Under the second, it was £224,414. The arbitrator, having heard the evidence, issued his award on 27 May 1985 and awarded the union the latter sum, together with the costs and expenses of preparing and submitting its claim and the costs and expenses of and incidental to the reference to arbitration. By a conveyance of 30 December 1985, the portion of the site the subject of the compulsory purchase order was conveyed to the corporation by the union in consideration of the sum of £224,414 paid to the union.

Following the award and prior to that conveyance, most of the Bricklayers’ Hall was demolished by the union and since then no attempt has been made to rebuild the buildings, including the façade, on the site which it retained.

The corporation thereupon instituted the present proceedings, in which it claims:

(a) a declaration that the union holds the sum of £224,414 in trust for the reconstruction of the Bricklayers’ Hall and the reinstatement of the front façade;

(b) a mandatory injunction requiring the union to apply the money in the reconstruction of the Bricklayers’ Hall and the reinstatement of the façade;

(c) payment by the union to the corporation of the sum of £136,557 (the difference between the two agreed sums) together with appropriate interest, as being an amount by which the union has been allegedly unjustly enriched.

The relief sought in paragraph (c) was obviously sought as an alternative to the reliefs claimed in the preceding paragraphs to provide for the contingency that the union might have put it out of its power to reinstate the building by disposing of the cleared site.

A defence was delivered on behalf of the union in which it was pleaded that the statement of claim disclosed no cause of action and that the corporation were in any event estopped by the doctrine of res judicata from making the claim. It also denied that the union was under any duty to the corporation to reconstruct the Bricklayers’ Hall or reinstate the façade, that the sum of £224,414 was held by it on any trust for the corporation or otherwise and that it had been unjustly enriched.

The case was at hearing in the High Court for eight days. Most of the hearing, was, however, taken up by legal submissions; the facts, as already summarised in this judgment, were not in dispute. Evidence was given on behalf of the corporation by Mr John Faley, a valuer, Mr Eugene Farrelly, a quantity surveyor, Mr Charles Clancy, an architect and Mr Michael Reynolds, an architect and town planner. No evidence was given on behalf of the union.

In a lengthy judgment, Budd J concluded that the claim of the corporation was well founded and that it was entitled to be paid the sum of £158,957 by the union. From that judgment, the union have now appealed to this Court.

On behalf of the union, Mr Patrick Keane SC submitted that the proceedings were an undisguised attack on the finality of the award in the arbitration proceedings. He said that the High Court had been invited, in effect, to consider the award of the property arbitrator in the light of changed circumstances and reassess the compensation which he had awarded. He further submitted that the union was under no legal obligation to reinstate the building and there was no evidence to support the case made, implicitly if not expressly, on behalf of the corporation that it had in some sense acted in bad faith. There was no allegation that the award of the arbitrator had been procured by fraud and, in those circumstances, the union was entitled as a matter of law to the sums paid to it on foot of the award.

Mr Keane further submitted that there was no evidence of any representation by the union to the corporation or any commitment on its behalf that the building would be reinstated. The agreement entered into between the professional advisers to the corporation and to the union as to the cost of reinstatement was no more than that; it was in no sense an undertaking on behalf of the union that, in the event of being awarded compensation on that basis, it would carry out the work in question. There was also no evidence, he said, to support the corporation’s contention that the corporation paid over the amount of the award as a result of ‘a mistake of fact’. He said there was no evidence to support the contention that, as of December 1985 when the existing building was allegedly demolished, the union had changed its mind. Those facts, even if proved, which, he said, they were not, only supported an inference that the union did not propose to proceed with the reinstatement in the precise terms of the plans which formed the basis of agreement as to the amount of the compensation.

In a further elaboration of his submission that the corporation were precluded by the doctrine of res judicata from pursuing its claim, Mr Keane submitted that, insofar as the decision in Moses v. Macferlan (1760) 2 Burr 1005 was authority for the proposition that a final judgment of a court or tribunal of competent jurisdiction could be reopened where it appeared to another court unjust and inequitable, it had been strongly criticised and should not be followed by this Court. He relied in this context on the decision of Eyre CJ in Phillips v. Hunter (1795) 2 H B1 402 and the statement of the law in Goff & Jones on the Law of Restitution , 4th ed., at pp. 763–4.

Mr Keane further submitted that, if the legislature had intended that monies paid on foot of an award made in accordance with the relevant statutory provisions could be recovered by the acquiring authority in circumstances such as the present, they could have so provided but had chosen not to do so.

On behalf of the corporation, Mr Eoghan Fitzsimons SC submitted that the proceedings instituted by the corporation were not in any sense an attempt to reopen the arbitrator’s award. He said that the corporation accepted that it was bound by the arbitrator’s finding that, at the date of the hearing before him, the union bona fide intended to reinstate the building. Nor was it suggested on their behalf that the union was precluded from subsequently changing its mind, as it obviously had, in declining to proceed with the reinstatement. He submitted, however, that it was unconscionable for the union to change its mind and retain the compensation which it had been awarded on the basis of reinstatement. He submitted that the doctrine of unjust enrichment had been firmly established in Irish law, at least since the decision in East Cork Foods Ltd v. O’Dwyer Steel Co. Ltd [1978] IR 103, and that all the requirements for its invocation in the present case were met. The corporation had not simply asserted that the unarguable enrichment of the union was ‘unjust’ in any loose or imprecise sense; it relied on the specific circumstances of the present case as rendering the enrichment unjust.

Mr Fitzsimons submitted that the circumstances in the present case which rendered the enrichment unjust were the unqualified representation at the arbitration that the building would be reinstated, the effective demolition, within a few months of the publication of the award, of the building, putting it out of the power of the union to reinstate the building in accordance with the plans furnished to the corporation and the failure of the union to give any evidence at the hearing in the High Court as to why it had changed its mind. He submitted that, since the trial judge had given it every opportunity of adducing evidence, it was reasonable to infer that the reasons for its change of mind were such as to render its retention of the money inequitable.

Mr Fitzsimons submitted that in these circumstances the corporation were clearly entitled to the repayment by the union of such an amount as would undo the unjust enrichment which had occurred. Alternatively, Mr Fitzsimons submitted that the monies paid on foot of the award were impressed with a constructive trust, citing in support the much quoted words of Cardozo J in Beatty v. Guggenheim Exploration Co. (1919) 225 NY 380 at p. 386 that:

A constructive trust is the formula through which the conscience of equity finds expression.

In considering these submissions, I should at the outset refer to the statutory provisions applicable to the payment of the sum of £224,414 to the union.

S. 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 (hereinafter ‘the 1919 Act’) which, it was accepted, applies to this as it does to many other forms of compulsory purchase, provides (as amended) that:

In assessing compensation, a property arbitrator shall act in accordance with the following rules …

(2) The value of land shall, subject as hereinafter provided be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: Provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.

(5) Where land is, and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the property arbitrator is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement.

S. 6, as amended, provides that:

(1) The decision of a property arbitrator upon any question of fact, shall be final and binding on the parties, and the persons claiming under them respectively, but the property arbitrator may, and shall, if the High Court so directs, state at any stage of the proceedings, in the form of a special case for the opinion of the High Court, any question of law arising in the course of the proceedings, and may state his award as to the whole or part thereof in the form of a special case for the opinion of the High Court.

S. 41 of the Arbitration Act 1954 provides that:

An award on an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the award.

S. 27 of the same Act provides that:

Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the award to be made by the arbitrator or umpire shall be final and binding on the parties and the persons claiming under them respectively.

Both of these provisions are applicable to arbitrations under the 1919 Act except to the extent that Part II of the 1954 Act is inconsistent therewith.

The compulsory purchase procedure under which the corporation acquired the land in question from the union is different in almost every respect from a purchase by agreement. Although rule (2) provides for the assessment of compensation on the basis of the value of the land on the open market, some of the other rules, and the manner in which they have been judicially construed, make it clear that the assessment of compensation is more in the nature of an award of damages for the expropriation of his property against the wishes of the owner. Although the acquisition is effected in the public interest, both parliament and the courts have been at pains to ensure that the award of compensation reflects, not merely a price that might have been agreed by a willing vendor and purchaser, but also all the elements of loss suffered by someone dispossessed of land against his will.

Hence, the provision in rule (5) for the assessment of compensation on ‘the reasonable cost of equivalent reinstatement’ where that is appropriate. Where the arbitrator is satisfied that the owner bona fide intends to reinstate the building, be it a church, a museum or whatever, on some other site, the extent of his loss will not necessarily be reflected in the open market value of the land, since he will be unlikely to find a purchaser who will be prepared to pay him that sum if it happens to exceed the market value.

The ‘equivalent reinstatement’ basis of compensation thus provides the machinery, in cases where it is appropriate, of compensating the owner of the property in full in circumstances where he would not be fully compensated by being awarded the open market value. I emphasise this aspect of rule (5), because the learned High Court judge at a number of points in his judgment appears to treat the corporation as having acquired, in consideration of the payment of the compensation, a benefit in the form of the preservation of the façade of the building. That approach, however, overlooks the fact that the acquisition was not being effected by the corporation in its capacity as a planning authority and the question as to whether or not, in that capacity, it would have stipulated the preservation of the façade was irrelevant to the amount of compensation which it was required to pay arising out of its acquisition of the land in question as a road authority.

It is accepted by the corporation that the award in this case was final and binding on both itself and the union. The doctrine of res judicata applicable to this, as to every final judgment or award of any competent court or tribunal, has the consequence that the parties are estopped between themselves from litigating the issues determined by the award again. The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.

That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the court been in possession of evidence not available at the hearing is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.

These principles apply with even greater force to an award under the 1919 Act. Not merely is a disappointed claimant precluded from reopening the award should he find that there was evidence which he could have brought before the arbitrator which would have resulted in a far higher level of compensation: he has not even the opportunity, available to those claiming damages arising out of civil wrongs as opposed to a statutory expropriation, of having the findings at first instance tested on appeal.

It is claimed, however, on behalf of the corporation that, in the case of assessments carried out under rule (5), that finality is significantly abridged. It is conceded, and inevitably so, that had the union elected to give evidence which demonstrated, that, owing to circumstances unforeseen by it at the time of the arbitration, it was no longer possible for it to reinstate the building and that the costs of acquiring suitable premises elsewhere would in any event exhaust the award, no question of ‘unjust enrichment’ would arise. It is quite right in submitting that, given the remarkable alacrity with which the union proceeded to demolish the building, it is singularly unlikely that the union would have been in the position to give any such evidence. But the general principle for which it contends cannot be solely tested by reference to the facts of the present case. A claimant who, without any element of fraud, is awarded compensation on the basis of equivalent reinstatement is either entitled to treat the litigation as at an end or he is not. If he can be called to account for his conduct in not reinstating the building at some indeterminate stage in the future, then, however else the award in his favour may be described, it is certainly not final in any meaningful sense. Thus, if the case made on behalf of the corporation is well founded, a body which has given evidence in good faith to the arbitrator that it intends to reinstate the building on another site and which subsequently discovers that, because of difficulties arising from planning constraints, problems of title, the effect on neighbouring properties or a myriad of other considerations, reinstatement is impossible and which also finds that the money awarded will do no more than cover the acquisition of another building, may legitimately be subjected to all the hazards of a further court action at some stage in the future. It will be in vain for it to plead res judicata: on proof by the acquiring authority that it has not in fact reinstated the building, it will be compelled to adduce evidence as to the reasons why it has not done so.

It is necessary to emphasise again that there is nothing to suggest that such were the circumstances in the present case, but the question as to whether the award is in every sense final or is merely final in a qualified sense cannot be determined solely by reference to the facts of one case. That would be a classic instance of hard cases making bad law. It must be determined as a matter of legal principle.

It also follows inevitably from the submissions on behalf of the corporation that s. 6(1) of the 1919 Act must be read as though it were subject to a proviso that, in the event of the compensation having been assessed by reference to rule (5), and the equivalent reinstatement not having been thereafter effected, the owner must refund to the acquiring authority such proportion of the compensation as a court of competent jurisdiction deems to be just and equitable. It is of interest to note that in the Local Government (Planning and Development) Act 1963 (which itself, in the Fourth Schedule, introduced additional rules to those contained in the 1919 Act) a provision of such a nature was expressly enacted to deal with certain cases where an owner of property suffers loss as a result of a decision involving a refusal of planning permission or a grant of such permission subject to conditions. S. 73(1) provides that no person is to carry out any development to which that section applies on land in respect of which an award of compensation has been registered at any time during the succeeding fourteen years without making an appropriate repayment to the planning authority.

These consequences — the qualified application of the res judicata principle and the amendment by implication of the 1919 Act — are, it is submitted, necessitated by what is said to be the application of the concept of unjust enrichment to the facts of the present case.

It is clear that, under our law, a person can in certain circumstances be obliged to effect restitution of money or other property to another where it would be unjust for him to retain the property. Moreover, as Henchy J noted in East Cork Foods Ltd v. O’Dwyer Steel Co. Ltd, this principle no longer rests on the fiction of an implied promise to return the property which, in the days when the forms of action still ruled English law, led to its tortuous rationalisation as being ‘quasi-contractual’ in nature.

The modern authorities in this and other common law jurisdictions, of which Murphy v. Attorney General [1982] IR 241 is a leading Irish example have demonstrated that unjust enrichment exists as a distinctive legal concept, separate from both contract and tort, which in the words of Deane J in the High Court of Australia in Pavey & Matthews Pty Ltd v. Paul (1987) 162 CLR 221 at pp. 256–257:

… explains why the law recognises, in a variety of distinct categories of cases, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary process of legal reasoning, of the question of whether the law should, in justice, recognise the obligation in a new or developing category of case.

The authorities also demonstrate that, while there is seldom any problem in ascertaining whether two essential preconditions for the application of the doctrine have been met — i.e. an enrichment of the defendant at the expense of the plaintiff — considerably more difficulty has been experienced in determining when the enrichment should be regarded as ‘unjust’ and whether there are any reasons why, even where it can be regarded as ‘unjust’, restitution should nevertheless be denied to the plaintiff.

As to the first of these difficulties, the law, as it has developed, has avoided the dangers of ‘palm tree justice’ by identifying whether the case belongs in a specific category which justifies so describing the enrichment: possible instances are money paid under duress or as a result of a mistake of fact or law or accompanied by a total failure of consideration. Whether the retention by the union of the entire compensation in the present case falls within such a category or not, however, it would in any event be necessary to consider whether restitution is precluded because of other factors. In the latter context, the following passage from the judgment of Henchy J in Murphy v. Attorney General, at p. 314 is of particular significance:

Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened.

In the present case, confronted with this difficulty the corporation seek to rely on Moses v. Macferlan, as authority for the proposition that, in the circumstances of this case, it would be unjust for the union not to refund the money at least in part.

The facts in that case, which is usually regarded as the starting point of the lengthy and fitful journey of English law towards a doctrine of unjust enrichment, can be briefly summarised. The plaintiff, Moses, endorsed to the defendant, Macferlan, four promissory notes in order to enable Macferlan to recover the money in his own name. However, before endorsing the notes, Macferlan agreed that Moses should not be liable for the payment of any part of the money. Contrary to this agreement, Macferlan sued Moses in the Court of Conscience for the sums in question and that court, holding that they could not admit any evidence of the agreement between the two, gave judgment against Moses. Moses having paid the money into court and Macferlan having taken it out, Moses brought an action on the case in the King’s Bench Division before Lord Mansfield. A verdict was found by him in favour of Moses, but subject to the opinion of the court upon the question:

whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only.

The hearing of the motion to set aside the verdict in favour of the plaintiff entered by Lord Mansfield at nisi prius having come before the full court, the question was resolved in favour of Moses. Lord Mansfield, who again delivered the judgment with which all the other members concurred, said that:

this kind of equitable action, to recover back money which ought not in justice to be kept, is very beneficial and therefore much encouraged … in one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.

However, while that statement of the law was the genesis of the law of unjust enrichment as it ultimately became, there has been little or no support for the view of the court in that case that the ‘ties of natural justice and equity’ justified the setting aside of the decree of a court of competent jurisdiction.

In Phillips v. Hunter, Eyre CJ said that:

The case of Moses v. Macferlan is, I believe, the only decided case that countenances such an action, but I cannot subscribe to the authority of that case….

Having gone on to consider the case in some detail, he summarised his view as follows:
I believe that the judgment did not satisfy Westminster Hall at the time; I never could subscribe to it; it seemed to me to unsettle foundations.

In Goff and Jones on the Law of Restitution (4th ed.), the learned editor, having observed (at pp. 763–764) that:

this maxim ( interest rei publicae ut sit finis litium ) is as important in the law of restitution as in any other branch of English private law

adds:

Lord Mansfield’s decision, although just, was a blatant attack upon, and a de facto reversal of, the judgment of a competent court, and his observations have not been accepted as authority for any exception to the principle of res judicata.

I am satisfied that Moses v. Macferlan is not a satisfactory authority for the proposition that the doctrine of res judicata can be significantly abridged by the invocation of the concept of unjust enrichment. Res judicata, on the contrary, as Henchy J pointed out in Murphy v. Attorney General, is one of the factors the application of which may render a seemingly unjust enrichment irreversible. I am also satisfied that in the present case, for the reasons I have elaborated, its successful invocation would involve the addition by judicial decision of a significant qualification to the operation of rule (5) in s. 2 of the 1919 Act, which the legislature, as was their privilege, decided not to enact.

I think it is unnecessary to determine whether the retention by the union of the entire compensation constituted an unjust enrichment of it, because I am satisfied that those two considerations — public policy as reflected in the doctrine of res judicata and the exclusive role of the Oireachtas in legislation — are such as to render any such unjust enrichment, in the circumstances of the present case, irreversible.

I would allow the appeal, discharge the order of the learned High Court judge and substitute therefor an order dismissing the claim of the corporation.

ACC Loan Management Ltd -v- Stephens & Anor

[2017] IECA 229 (27 July 2017)

High Court Record No. 2008 No. 4753P

Irvine J.
Whelan J.
Barr J.

BETWEEN/
ACC LOAN MANAGEMENT LIMITED
PLAINTIFF/ RESPONDENT
– AND –
GERALD STEPHENS

1ST NAMED DEFENDANT / APPELLANT
– AND –
MARYANNE (OTHERWISE KNOWN AS MARY ANNE M.) STEPHENS

2ND NAMED DEFENDANT

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of July 2017

1. This is the first named defendant’s (“Dr. Stephens”) appeal against the judgment and order of the High Court (Gilligan J.) dated the 11th November, 2015. By his order he declared, inter alia, that ACC Loan Management Limited (“ACC”) was entitled to a first legal charge over the defendants’ interest in the lands and premises comprised in Folio 11109F for the Register of Freeholders, County Mayo on foot of an agreement (“the loan facility”) entered into by Dr. Stephens and his wife, Maryanne Stephens (“Mrs. Stephens”) on the 6th February, 2004.

2. By his order the High Court Judge directed that Dr. Stephens complete an indenture of mortgage and charge dated the 18th February, 2004 and that, should he default in so doing, an officer of the court be directed to complete same on his behalf. He also made an order that ACC recover as against Dr. Stephens the costs of the proceedings, same to be taxed in default of agreement. An indenture of mortgage and charge was already executed on behalf of Mrs. Stephens pursuant to the Order of the High Court (Murphy J.) dated the 15th February, 2010 made in related proceedings and therefore, Mrs. Stephens is not a party to this appeal.
The High Court Proceedings
3. By proceedings commenced on the 12th June, 2008, ACC sought, inter alia, a declaration that on foot of a loan agreement for the sum of €400,000 made between the parties on the 6th February, 2004 it was entitled to a first legal charge over the defendants’ interest in the lands and premises comprised in Folio 11109F of the Register of Freeholders, County Mayo. ACC sought an order for specific performance of that agreement and an order directing Dr. and Mrs. Stephens to complete an indenture of mortgage and charge dated the 18th February, 2004 in respect of the aforementioned lands and premises.

4. ACC maintained that it was a term and condition of the loan facility that Dr. and Mrs. Stephens provide security to it in the form of a first legal charge in respect of their interests in the lands and dwelling house comprised in the aforementioned folio. ACC claimed that in reliance on the representations of its customers in this regard, it had advanced the sum of €400,000 which Dr. and Mrs. Stephens drew down on 1st March, 2004. ACC further claimed that, in breach of that agreement, they had refused to furnish the security as agreed.

5. The bank claimed that as a result of the breach of contract and misrepresentation on the part of Dr. and Mrs. Stephens it had suffered loss and damage insofar as it had been left without the security intended to support the aforementioned borrowings, namely the first legal charge over Folio 11109F of the Register of Freeholders, County Mayo.
Relevant background facts
6. Apart from the details provided in the preceding paragraphs, the following uncontroverted facts are also material to the appeal.

7. On the 13th February, 2004, Mr. Philip Clarke, a principal in the firm of Ledwidge Solicitors, executed a solicitor’s undertaking on behalf of his clients, Dr. and Mrs. Stephens, to issue, stamp and lodge for registration an indenture of mortgage and charge creating a first legal charge over Folio 11109F of the Register of Freeholders, County Mayo within one month following receipt of the loan cheque. In May 2004, Mr. Clarke paid out to Dr. and Mrs. Stephens the funds which had been drawn down on foot of the loan agreement. At that time, he believed his clients had signed the indenture of mortgage and charge. His retainer was later terminated in October 2004.

8. On 16th August, 2006, the bank’s solicitors, G.J. Moloney and Co. wrote requesting that the deed of mortgage and charge be executed urgently. Mr. Clarke replied stating that the undertaking earlier given would be complied with.

9. On 15th July, 2007, Dr. Stephens provided reassurance to ACC that he and his wife would execute the deed of mortgage and charge. In early 2009 however, and on the advice of an U.S. attorney, Dr. and Mrs. Stephens indicated that they would not sign the deed of mortgage and charge unless ACC increased the earlier loan facility to 65% of the value of the property, an ultimatum which the bank rejected.

10. On 2nd December, 2008, Mr. Clarke commenced plenary proceedings against his former clients seeking an order for specific performance directing them to execute the deed of mortgage and charge in favour of ACC. In the High Court, Murphy J. made such an order on 15th February, 2010 and further ordered that, in the event of default by the defendants in the execution of the deed, it should be executed by a named High Court Registrar on their behalf. Only Dr. Stephens appealed that order with the result that when Mrs. Stephens failed to execute the required deed of charge same was executed in her stead by Ms. Paula Healy, High Court registrar, as per the terms of the court order. ACC was not aware that the deed of mortgage and charge had been executed on behalf of Mrs. Stephens when it commenced these proceedings. It only became so aware in the course of the trial and as a result only sought the relief claimed against Dr. Stephens.

11. In May 2010, the Supreme Court set aside the order of Murphy J. insofar as it concerned Dr. Stephens and remitted Mr. Clarke’s claim for specific performance back for hearing in the High Court. Mr. Clarke did not continue further with those proceedings.

12. The final matter that needs to be mentioned is the fact that Dr. and Mrs. Stephens did not honour their repayment obligations on foot of the loan agreement. As a result of their default, ACC commenced summary summons proceedings against them. In those proceedings (Record No. 2007/2253S) by order of the High Court (Ryan J.) dated 31st May 2012, ACC was granted judgment against Dr. and Mrs. Stephens in the sum of €775,234.57, together with an order providing for its costs of the proceedings when taxed. That decision is under appeal to this court in separate proceedings.

13. Having regard to the submissions made by Dr. Stephens on this appeal, I have decided to set out in a brief chronology some of the dates that are material to my decision.

Chronology
17th December 2007: ACC issues summary summons proceedings against Dr. and Mrs. Stephens.
12th June 2008: Plenary summons

2nd December 2008: Mr. Clarke commenced plenary proceedings.

15th February 2010: The High Court granted judgment in default of defence against Dr. and Mrs. Stephens.

May 2010: Supreme Court set aside the order of Murphy J. against Dr. Stephens and remits the matter to the High Court for hearing.

14th August 2012: Dr. and Mrs. Stephens appeal the judgment of Ryan J. to the Supreme Court.

10th December 2012: ACC issued a motion to renew the plenary summons.

10th January 2013: Appearance of first defendant.

18th January 2013: Appearance of second defendant

5th June 2013: Judgment of Laffoy J. on ACC’s motion to renew its summons.

16th September 2013: Statement of Claim

2nd December 2013: Defence of first and second defendants

4th April 2014 Reply to defence

24th April 2015: Notice of trial

14th October 2015: Notice to produce

11th November 2015: Judgment of Gilligan J.

The issues in the within proceedings
14. It is important in the context of the present appeal to identify the issues which were live for the consideration of the High Court judge on the pleadings. Because the defence filed by Dr. and Mrs. Stephens was a limited one, for ease of reference I have decided to set it out full.

Defence: 2nd December 2013
1. The plaintiff is precluded from proceeding in this action under the doctrine of Res Judicata wherein:-

(a) judgment was given in favour of the Plaintiff in High Court 2007 No. 2253S precluding it from raising claims (in any future litigation) which were raised in (or could have been raised) in High Court 2007. No 2253S:
(b) the current High Court 2008 4753P and High Court No. 2007 to 2253S share a common at nucleus of operative fact:

(c) the parties in the above cases are identical:

(d) there is final judgment on the merits in the original litigation of High Court 2007 No. 2253S

2. The plaintiff is guilty of Laches wherein it exhibited a lack of diligence, inexcusable and unreasonable delay in its assertion of rights. The delay resulted in prejudice and economic injury to the Defendants. It precluded application of assets that earlier could have been used to satisfy the claim but distributed in the interim.
15. As can be seen from the aforementioned defence, the defendants did not seek to challenge the conditions that ACC maintained governed the drawdown of the loan for €400,000 nor their obligation to provide security for those borrowings in the form of a first legal charge over the lands and premises contained in Folio 11109F of the Register of Freeholders, County Mayo.
16. The proceedings, which were advanced solely as against Dr. Stephens, were heard before Gilligan J. over a period of four days in November 2015. Whilst Dr. Stephens cross examined a number of the witnesses called on behalf of ACC, he himself did not give evidence and neither did he call any evidence in support of his defence.

17. Also relevant to the within appeal is the fact that on the second day of the proceedings, the trial judge permitted Dr. Stephens to amend his defence to rely upon what he described as a “defence of no transaction”. No amended defence was delivered but the making of an order in those terms is recorded in the High Court Order of the 11th November, 2015. It is also material to this appeal that on day three of the trial, Dr. Stephens requested the trial judge to recuse himself from further hearing the claim on the grounds that he had, by the manner of his approach to the proceedings up to that time, demonstrated bias.
Judgment of the High Court Judge
18. In his judgment, the High Court judge recorded that it was accepted by Dr. Stephens that it was a term and condition of the loan agreement of February 2004 that ACC would be provided with a first legal charge on the defendants’ interest in the property and lands contained in Folio 11109F of the Register of Freeholders, County Mayo. He also referred to the fact that whilst ACC had, on the 31st July 2012, obtained summary judgment against both defendants for a sum of €775,234.57 it held no security in respect of that judgment.

19. Relevant to the order for specific performance claimed by ACC was the High Court judge’s acceptance of the evidence of Mr. Clarke to the effect that he had been authorised by Dr. and Mrs. Stephens to give the undertaking to ACC concerning the provision of the first legal charge over their interest in the aforementioned property and also that his retainer had later been terminated.

20. Material to the defence of laches advanced by Dr. Stephens was the trial judge’s acceptance of the evidence of Mr. Donnacha O’Donovan, solicitor of G.J. Moloney, that until 20th May, 2009 he had no reason to believe that the Stephens would not execute the deed of charge and that the reason he had not pursued the action on behalf of ACC seeking specific performance against Dr. and Mrs. Stephens was because Mr. Clarke had commenced an action looking for precisely that relief. However, when in 2012 those proceedings had not been progressed, he commenced proceedings on behalf of the bank.

21. The High Court judge rejected Dr. Stephens’ claim that ACC had been guilty of laches such that it should be denied the equitable relief sought. In doing so, he referred to the fact that initially ACC had received promises from the Stephens that they would execute the deed of mortgage and charge. The trial judge also relied upon the fact that when making her order of June 2013 permitting ACC to renew the plenary summons which it had issued on the 12th June 2008 Laffoy J. had concluded that the reasons advanced by the bank for failing to serve the summons over the previous period had been reasonable. He expressed himself satisfied that it was reasonable for the bank to have refrained from issuing proceedings, which would have duplicated those which had been commenced by Mr. Clarke. The trial judge concluded that once the plenary summons had been renewed, the claim had been heard relatively promptly in November 2015. Allied to this conclusion, the trial judge noted that Dr. Stephens had not identified any prejudice as a consequence of the delay complained of.

22. The trial judge also rejected Dr. Stephens’ defence to the effect that the claim of ACC was res judicata by reason of its pursuit of its summary summons proceedings in which it had obtained judgment. That was, he concluded, a separate claim arising out of the failure of Dr. and Mrs. Stephens to make repayments of their borrowings on foot of the loan agreement. It was the trial judge’s view that the summary judgment did not create either cause of action or issue estoppel.

23. The High Court judge also rejected Dr. Stephens’ submission that the rule in Henderson v. Henderson (1843) 3 Hare 100 had any applicability to the facts of the present case and that being so, it could afford Dr. Stephens no defence to the relief sought.

24. Finally, Gilligan J. expressed himself satisfied that a valid and enforceable contract existed between the parties for which consideration had been provided and the written terms set out in the letter of loan sanction were sufficient for such purpose. That being so, ACC was entitled to the relief claimed with the result that he granted the declaratory relief sought and made the orders for specific performance as claimed.
The appeal and the submissions
25. By notice of appeal dated the 5th January 2016, Dr. Stephens seeks to challenge the judgment and order of Gilligan J. on seventeen stated grounds. Unfortunately, notwithstanding the fact that he was afforded several opportunities so to do, Dr. Stephens decided against filing any written submissions. For this reason it is more difficult to summarise the arguments he pursued on the appeal. That notwithstanding, what follows is what I consider to be a fair and reasonable synopsis of his submissions.

26. Dr. Stephens submits that the trial judge erred in law in the approach he took to his defence of laches. In particular, he complains that he failed to have regard for the delay on the part of ACC from the time it was aware it had a valid cause of action arising out of his failure to execute the deed of mortgage and charge in 2004. There was, according to Dr. Stephens, no justification for ACC’s failure to process its claim between 2004 and 2007. Likewise, Dr. Stephens submits that the ACC was not entitled to delay the pursuit of its claim against him for his failure to execute the deed of mortgage and charge based upon the hope that the proceedings commenced by his former solicitor, Mr. Clarke, would achieve that result on its behalf.

27. Dr. Stephens further submits that the trial judge erred in his treatment of his defence in reliance upon the doctrine of res judicata and based upon the rule in Henderson v. Henderson (1843) 3 Hare 100. Dr. Stephens argues that ACC should have brought all of its claims, including its claim for specific performance of his agreement to provide a first legal charge over the lands and premises contained in the relevant folio at the time it commenced its summary summons proceedings seeking judgment for the sum outstanding on the loan agreement. The parties to the summary summons proceedings were the same as those in the present proceedings and, according to Dr. Stephens, the facts and issues concerned therein were the same. That being so, in circumstances where ACC chose to pursue its action for summary judgment and at the same time did nothing to advance its claim seeking specific performance in respect of the deed of charge, it should in equity be precluded from maintaining the later claim. It is Dr. Stephens’ position that the judgment which ACC obtained in the summary summons proceedings put an end its entitlement to litigate the same issue again in the present proceedings.

28. Dr. Stephens also claims that he was not afforded a fair hearing by the High Court judge. He maintains that the High Court judge interfered with his cross examination of the witnesses called on behalf of ACC such that he was not in a position to bring to the court’s attention all of the facts which he considered material to the proper and just determination of the proceedings.

29. Finally, Dr. Stephens maintains that the trial judge, by the manner in which he conducted the proceedings, demonstrated bias with the result that he should have acceded to the application which he made that he discharge himself from hearing the case.

30. Written submissions were filed on behalf of the bank which may be summarised as follows. Counsel for ACC highlighted the fact that Dr. Stephens has not disputed the fact that he received the moneys and that he has not met his obligations in repaying that debt.

31. In response to Dr. Stephens’ argument in relation to laches in the period from 2004 to 2007, counsel for the bank submitted that they did not seek to commence proceedings as they had been given every indication from Dr. and Mrs. Stephens that they would execute the deed of charge. With regard to the alleged delay between 2008 and 2012 this was explained by the respondents as being due to the fact that Mr. Clarke had instituted proceedings seeking specific performance of the deed of charge and they felt it would be an unnecessary duplication for the bank to launch proceedings at that time. Once ACC became aware that Mr. Clarke was not continuing to pursue his claim, they did not delay in reactivating their own proceedings. The primary submission of the respondent in relation to the charge of laches is that this issue has already been decided by the High Court (Laffoy J.) when she allowed the bank to reissue the plenary summons and that decision has not been appealed. It was further submitted that Dr. Stephens cannot succeed in his claim of laches as any delay that may be established has not caused him any prejudice, he did not alter his position and he did not suffer any detriment.

32. In relation to Dr. Stephen’s res judicata argument, counsel for ACC submitted that the summary judgment proceedings (Record No. 2007/2253S) concerned the recovery of a debt while the instant proceedings relate to the different issue of the execution of a first legal charge over the relevant property. Counsel for the respondent submitted that Dr. Stephens’ submission in this regard may more properly fit under the rubric of the rule in Henderson v. Henderson (1843) 3 Hare 100. He outlined that the rule in Henderson v. Henderson is intended to prevent a situation where defendants would be subjected to recurrent litigation and that the facts of the instant case could not be characterised as such where the bank sought to recover its debt and when Dr. Stephens continued to refuse to pay they felt obliged to enforce his obligations in respect of the provision of the first legal charge over the property.

33. With regard to the “no transaction” defence, counsel for the bank submitted that Dr. Stephens’ argument is misconceived as “no transaction” cases are concerned with the issue of quantum where a court is asked to measure damages as if the transaction had not occurred. It was further submitted that the case relied upon by Dr. Stephens of ACC Bank plc v. Johnson [2010] 4 IR 605 was an action by the bank against its own solicitor arising out of his contract of retainer and it bears no resemblance to the present case.

34. In response to Dr. Stephens’ claim that he did not receive a fair hearing, counsel for the respondent accepted that the High Court judge did limit the issues that could be raised by Dr. Stephens during the trial. However, it was submitted that this was well within the authority and the function of the trial judge in order keep the appellant to the pleaded defence. Counsel for the bank submitted that the test to be applied in relation to bias on the part of the court is whether the reasonable person who is not unduly sensitive and has knowledge of the relevant facts would have a reasonable apprehension that the decision maker would not be fair and impartial. He further submitted that the High Court judge correctly applied this test upon the application for his recusal by Dr. Stephens and was correct in finding that Dr. Stephens had not met it.
Discussion and Decision

Laches
35. Having carefully considered the submissions of the parties, I can find no fault on the part of the trial judge in the manner of his approach to the defence raised by Dr. Stephens based upon the doctrine of laches.

36. Laches is of course an equitable doctrine open to a defendant who can establish that the plaintiff’s delay in the manner of their approach to their claim is unfair and unconscionable to the point that they should be denied the relief to which they would otherwise be lawfully entitled. For my part, I am quite satisfied that the trial judge was correct, as a matter of law and fact, when he concluded that Dr. Stephens could not benefit from the application of this doctrine on the facts of the present case.

37. First, insofar as Dr. Stephens relies upon the period 2004 to 2007, the court had evidence that throughout that period Dr. Stephens and his wife had reassured the bank that they were willing to execute the deed of mortgage and charge. The evidence from Mr. O’Donovan was that, as late as the 16th December, 2007, the bank had been given to understand that the defendants would discharge their indebtedness. That, of course, would have released Dr. and Mrs. Stephens of their obligations to execute the deed. As we know, however, they did not discharge their liabilities. Further, by letter dated the 15th July, 2008 the bank received written assurance that the deed of charge would be executed. Thus, Dr. and Mrs. Stephens can hardly complain that the bank did not pursue them in an action for specific performance over this period.

38. That this was the state of affairs between the parties in late 2008 is evidenced by a letter of the 15th December, 2008 written by Mr. O’Donovan of G.J. Moloney noting the preparedness of Dr. Stephens and his wife to execute the deed of charge in accordance with the agreement reached with ACC. In that letter, which enclosed the original deed of charge in duplicate together with the draft Family Home Declaration, Mr. O’Donovan had quite properly reminded Dr. Stephens to take advice on the documents prior to their execution. No issue was taken with that statement by Dr. Stephens in his letter of reply dated the 26th January, 2009 in which he reported having sent the documentation to his Attorney-at-Law for review following which he would revert.

39. It cannot therefore be asserted that ACC was guilty of any culpable delay in failing to issue proceedings seeking specific performance at a time when it appeared likely that the deed of charge would be completed without the necessity to resort to expensive litigation.

40. Second, I am satisfied that the High Court judge cannot be faulted for his conclusion that ACC had not acted unfairly in its failure to pursue Dr. and Mrs. Stephens for specific performance at a time when it was aware that Mr. Clarke was pursuing them for precisely the same relief and that if he was successful in that action it would, without further proceedings, obtain the security to which it was entitled. If the bank had taken a different view and had decided to pursue its own claim for specific performance, Dr. and Mrs. Stephens might well have felt rightly aggrieved in so far as they would have been exposed to the cost and inconvenience of defending two High Court actions destined to achieve precisely the same result, i.e. the execution of the deed of charge.

41. Third, I accept the submission made on behalf of ACC that the High Court judge was correct as a matter of law when he concluded that he was not entitled, when considering the defence laches, to go behind the judgment of Laffoy J. (ACC v. Stephens [2013] IEHC 264, 5th June 2013) wherein, in the context of the bank’s application to renew its plenary summons, she concluded that ACC had good reasons to hold back serving its proceedings until such time as it became aware that Mr. Clarke did not intend to pursue his High Court action against the Stephens any further. The judgment of Laffoy J. was not appealed by Dr. and Mrs. Stephens and was, in such circumstances, binding on Gilligan J. concerning the delay on the part of ACC between the issue of the plenary summons and its renewal.

42. Fourth, relevant also to the correctness of the decision of the High Court judge concerning the defence of laches is the fact that once ACC was made aware of the fact that Mr. Clarke was not pursuing the High Court proceedings against the Stephens following the remittal of the action to the High Court by the Supreme Court, the bank moved with reasonable expedition. That was a finding that was well supported by the evidence.

43. Finally, before concluding on this issue, I should say that even if Dr. Stephens was in a position to establish some error on the part of the High Court judge in his treatment of the delay on the part of ACC in pursuing its claim for specific performance, he could not in any event have succeeded on this aspect of his appeal as his submission is fundamentally flawed. For the purpose of determining whether a defence of laches can be sustained not only must a defendant prove that the plaintiff has delayed unreasonably in bringing their claim, but they must also be in a position to establish that as a result of that delay they have suffered some prejudice or detriment. (See for example Biehler, Equity and the Law of Trust in Ireland. 6th Ed., (Dublin, 2016)).

44. For the purposes of considering whether there was evidence upon which the trial judge could have concluded that Dr. Stephens suffered prejudice as a result of the bank’s delay, I have considered the transcript of the evidence of the High Court hearing. Having done so, I am fully satisfied that there was no evidence upon which the High Court judge could have found that Dr. Stevens had satisfied this necessary element of the laches test. Not only did Dr. Stephens not give any evidence or call any evidence for the purpose of seeking to establish prejudice resultant upon the bank’s delay but neither did he manage in the course of his cross examination to obtain any concession in this regard from the plaintiff’s witnesses.

45. In these circumstances I am quite satisfied that the High Court judge was correct in law when he concluded that the defence of laches as per para. 1 of Dr. Stephens’ defence had to fail.
Res Judicata: Consequences of Summary Summons Proceedings
46. As to Dr. Stephens’ submission that the High Court judge erred in law in failing to conclude that, because the summary summons proceedings had the same “nucleus” and the same parties as the specific performance proceedings, the doctrine of res judicata applied such that ACC had no entitlement to maintain the present proceedings, that is a submission which I must reject.

47. I fear from his submissions made in the course of this appeal that Dr. Stephens does not truly understanding of the doctrine of res judicata.

48. Res judicata is a doctrine that exists for the purposes of precluding the same parties from re-litigating an action that has already been finally determined by a court of competent jurisdiction. There are two aspects to the doctrine. The first concerns what is commonly called a “cause of action” estoppel which is destined to deny a party from re-litigating an action which has already been finally determined by another court. The second concerns “issue estoppel” which prevents parties to earlier proceedings litigating an essential feature or material issue, the subject matter of an earlier decision.

49. Accordingly, the starting point for this Court in relation to this aspect of Dr. Stephens’ appeal is to consider whether the cause of action and/or any issue decided in the summary summons proceedings are the same as the cause of action and/or any issues in these proceedings. The answer is a resounding “no”.

50. ACC’s cause of action in the summary summons proceedings is completely different from that which is the subject matter of the present proceedings. In the summary summons proceedings, the claim of ACC was for judgment in the sum to which it maintained it was entitled by reason of the failure of Dr. and Mrs. Stephens to meet their repayment obligations under the loan agreement. In contradistinction, in the present proceedings ACC claims to be entitled to seek the court’s assistance to procure compliance by Dr. and Mrs. Stephens with their obligation to provide it with a first legal charge over the lands and premises in Folio 11109F of the Register of Freeholders, County Mayo as security for the loan hereinbefore referred to.

51. It is undoubtedly true that common to both sets of proceedings was the loan agreement of the 6th February, 2004. However, that is where the overlap in the proceedings begins and ends. Not only are the causes of action different in both sets of proceedings, but the issues are entirely different. The summary summons proceedings did not touch upon any of the issues that required determination in these proceedings. The court was not asked to consider whether there was a binding agreement that required Dr. and Mrs. Stephens to provide security for the loan and if so, whether they were in default in that regard. Neither was it asked to make any orders requiring them to perform their obligations thereunder.

52. For these reasons, I am satisfied that the High Court judge was correct as a matter of law to conclude that the doctrine of res judicata had no application on the facts of the present case.

53. I also reject Dr. Stephens’ submission that the High Court judge erred in law in failing to conclude that the bank was not entitled to pursue the within proceedings because it had not sought an order for specific performance of the agreement concerning security for the loan transaction in its summary summons proceedings. This was an argument which Dr. Stephens sought to pursue in reliance upon the doctrine in Henderson v. Henderson. Once again, I am drawn to the conclusion that Dr. Stephens’ submission is based upon a misunderstanding of the legal principle upon which he seeks to rely.

54. The rule in Henderson v. Henderson (1843) 3 Hare 100 has its origins in the following extract from the decision of Wigram V.C. in that case were he stated as follows:-

“[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertent, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.”
55. Where the doctrine of res judicata differs from the rule in Henderson v. Henderson was set out by Clarke J. in Moffitt v. Agricultural Credit Corporation plc [2007] IEHC 245 at paras. 3.7 to 3.9:-
“Res judicata per se applies where the matter sought to be litigated has already been decided by a court of competent jurisdiction. (…) The rule in Henderson v. Henderson, on the other hand, applies where a new issue is raised which was not, therefore, decided in the previous proceedings but is one which the court determines could and should have been brought forward in the previous proceedings.
The importance of the distinction lies the consequences. If a matter is res judicata then, in the absence of a defence to the application of the doctrine such as fraud, the availability of fresh evidence in respect of issue estoppel only, or other special cases, the plea will necessarily succeed.

On the other hand, where reliance is placed on the rule in Henderson v. Henderson to the effect that it would be an abuse of process to now allow the party concerned to raise a different issue which could have been raised in the original proceedings, it is well settled that the court adopts a more broad-based approach.”

56. Bearing in mind the limited circumstances in which the rule in Henderson v. Henderson may be deployed, the question that this Court must consider is whether the High Court judge was correct when he concluded that the claim made by ACC in the present proceedings is not one that could and ought to have been made in the summary summons proceedings.
57. I have no doubt that the High Court judge was correct in the conclusion which he reached. First, only a limited class of claim may be pursued by way of summary summons (see Ord. 2 of the Rules of the Superior Courts). A plaintiff may not pursue declaratory relief or a claim for specific performance on a summary summons. Accordingly, it was not possible for the bank, in pursuing its summary summons proceedings, to have included a claim for the relief that has been sought in the present action.

58. Second, there was no obligation on the bank to bring forward its claim for specific performance at the time it issued its summary summons proceedings. If Dr. and Mrs. Stephens had responded to those proceedings and had decided to honour their agreement with ACC and discharge the judgment obtained against them, there would have been no need for the within proceedings. The bank was not obliged to anticipate that they would not repay their indebtedness once judgment was obtained. Further, it cannot reasonably be contended that these two actions taken by ACC against Dr. and Mrs. Stephens could ever be characterised as recurrent litigation because the claims are entirely different and the second being an action necessitated only by the default of the Stephens in their contractual obligation to pay the debt in the first instance and then to provide the legal charge by way of security. Further, Dr. and Mrs. Stephens appealed the summary judgment to this Court thus giving the bank further justification for pursuing its entitlement to the security agreed between the parties in 2004.

59. As to Dr. Stephens’ submission that ACC should have brought all possible claims open to them at the time they issued the summary summons proceedings, that is a submission for which there is no legal authority. What the rule in Henderson v. Henderson required is that a party who makes a particular claim and launches a particular cause of action will advance all of the arguments in support of that proposition in those proceedings. In other words, if a plaintiff seeks summary judgment against a defendant it behoves the plaintiff to put forward all of the facts and legal arguments in that action. Having lost the action, they may not commence a fresh summary summons action relying upon different grounds that might and ought to have been advanced in the first proceedings.

60. What we are concerning on this appeal are two entirely different causes of action. The first concerns the recovery of a debt and the second the bank’s right to obtain a first legal charge over certain property. There is no legal basis upon which it can be argued that the bank was under any obligation to pursue its claim for specific performance at the time it pursued the defendants for summary judgment.

61. It has to be said that there are many reasons why a bank, in circumstances such as those that pertained in the present case, may decide first to commence summary summons proceedings before considering whether it will take steps to enforce any security it may have. Often times, following a quick summary judgment, a defendant may discharge the entirety of the sum due in which case it is not necessary for the lender to pursue such rights as they may have on foot of any security they hold. Or, if the lender considers that its security may not cover the customer’s indebtedness, it may seek to obtain an expeditious summary judgment in order to register that judgment as a charge against some other property of the debtor.

62. My conclusions on this particular issue can be supported by reference to the decision of the English Court of Appeal in Securum Finance Ltd v. Ashton [2001] Ch 291 at 302 where Chadwick LJ. stated that it could not:-

“be argued that a secured creditor who chooses, in the first place, to sue for payment alone, is thereafter precluded from seeking to enforce his security in a separate action on the grounds that that was a claim that could have been advanced in the first action.”
63. The trial judge was in my view, correct when at para. 39 of his judgment he concluded that the legal rights and obligations of the parties, as voiced in the present proceedings, were not determined in any other earlier judgment.
“No Transaction” Defence
64. Dr. Stephens submits that the trial judge erred in law in failing to dismiss the claim of the ACC based upon his “no transaction” defence. He relies in this regard, as he did in the High Court, on the decision in ACC Bank v. Brian Johnston [2010] 4 IR 605. Dr. Stephens argues that the bank had no entitlement to the relief sought against him in these proceedings in circumstances where it had permitted the loan monies to be drawn down at a time when the security documentation had not been put in place by Mr. Clarke. ACC had made the loan monies available at a time when the paperwork, namely the security, was not in order. The transaction had not been completed as agreed as a result of Mr. Clarke’s default. Thus, ACC could not seek to enforce the agreement as against them and were left to pursue a remedy against Mr. Clarke for parting with the loan monies without first ensuring that the intended security was in place.

65. I have no difficulty in rejecting the submission made by Dr. Stephens based upon his “no transaction defence”. The decision in ACC Bank plc v. Johnson is of no relevance to the facts under consideration in these proceedings. That was a case in which the ACC sued its own solicitor arising out of his contract of retainer with the bank in circumstances where he had negligently released monies to a client of the bank prior to ensuring the security required was in place. It is a decision which is of significance only insofar as it identifies the proper approach to the assessment of damages where one party claims that but for the negligence of another party they would not have proceeded with a particular transaction.

66. The facts in ACC Bank plc v. Johnson could not be further from the facts of the present case. It seems to me that Dr. Stephens believes that somehow his agreement with ACC is unenforceable because he received the monies without executing the deed of charge. Thus he contends that the agreement between himself and ACC is in some sense to be considered at an end and unenforceable. However, what Dr. Stephens simply chooses to ignore is that he has never disputed that he concluded a contract with ACC whereby he agreed that in return for the loan of €400,000, which he received, he would provide ACC with a first legal charge over his interest and that of his wife in the lands and premises contained in Folio 11109F of the Register of Freeholders, County Mayo. He has never disputed that he entered into a contract on such terms or his alleged failure to meet his obligations thereunder. His default and that of his wife in respect of their obligations thereunder has necessitated ACC in issuing two sets of legal proceedings against them. It is the apparent determination on the part of Dr. Stephens to take the benefit of the loan monies from ACC and avoid his liabilities thereunder that has brought him to where he is today. Whether Mr. Clarke is or is not to be faulted for releasing the loan monies prior to ensuring that they had signed the deed of charge, affords Dr. Stephens no defence in the context of the present proceedings.
Fair hearing and bias
67. For the purposes of considering Dr. Stephens’ submission that he was not afforded a fair hearing by the trial judge, I have considered in detail the content of his notice of appeal, his oral submissions and the transcript of the High Court hearing. Having done so, I am satisfied that Dr. Stephens has not established that the hearing which was afforded to him was other than in accordance with the fair and proper administration of justice.

68. In coming to the aforementioned conclusion, I have paid particular attention to the specific parts of the transcript identified by Dr. Stephens in the course of his oral submissions to this Court. Dr. Stephens is correct when, in the course of his submissions, he states as a matter of fact that the High Court judge restricted him from pursuing certain matters with the bank’s witnesses. However, when such interventions are viewed in the context of the issues which the court had to determine, I am quite satisfied that the trial judge properly exercised his discretion to ensure that Dr. Stephens did not engage with matters which were outside of the parameters of the issues that required determination.

69. A trial judge is obliged to ensure that proceedings are conducted in an expeditious manner and consistent with the proper administration of justice. He or she must ensure that litigation is confined to the issues that need to be resolved. This is so for several reasons. First, litigation is costly and parties should not be subjected unnecessarily to costs beyond those that are unavoidably incurred in order that there may be a proper determination of the dispute. Second, the court’s own resources are limited and are in great demand and too much time spent on one case may deprive other litigants of an entitlement to be heard in other equally meritorious and perhaps even more meritorious claims. Third, judges must protect witnesses who come to give evidence from unjust attack unless same is warranted in the context of the proceedings.

70. Having read and considered the transcript, I am satisfied that on many occasions, Dr. Stephens tried to engage with issues which were not relevant to the proceedings and at times sought to make allegations of wrongdoing which were not central to the issues under consideration. Further, he appeared determined to adopt such an approach in circumstances where he was not prepared to expose himself to any cross examination concerning those matters nor was he willing to adduce any evidence to support his assertions.

71. Whilst I accept the submission made by Mr. Dunleavy SC that the trial judge acted favourably towards Dr. Stephens in agreeing to permit him amend his defence on day two of the hearing, that of course is not dispositive of Dr. Stephens’ complaint that the High Court judge was biased and did not provide him with a fair and just hearing.

72. That being so, for the purposes of considering Dr. Stephens’ submission to the effect that the evidence supports his contention that the High Court judge was guilty of bias such that he should have acceded to his application to recuse himself on the third day of the trial, I have reviewed the transcript bearing in mind the test for bias as set out in many of the leading decisions on the point such as Ryanair v. Terravision London Finance Limited [2011] I.R. 192. That test required the court to assess whether the hypothetical person, who was not unduly sensitive and had full knowledge of all of the relevant facts and circumstances, would have a reasonable apprehension that the decision maker would not be fair and impartial.

73. Reviewing the transcript of the High Court hearing and the interventions of the trial judge in the course of the proceedings and the manner of his engagement with Dr. Stephens, I am satisfied that Dr. Stephens’ submission that the High Court judge was biased must fail.

74. I recognise that there are contained in Dr. Stephens’ notice of appeal grounds of complaint additional to those which are dealt with in this judgment. However, such complaints are not properly constituted grounds of appeal and could not have any bearing on the decision which this Court is required to make on the appeal. That decision is whether, contrary to the assertions made by Dr. Stephens, the trial judge in the course of a properly conducted hearing was entitled to conclude that ACC had established its entitlement to the relief and orders sought in these proceedings. That being so, I have not found it necessary to address those matters.

75. For all of the aforementioned reasons, I would dismiss the appeal.

Edward Noel Kelly v Ireland and The Attorney General

1982 No. 4268 P

High Court

28 January 1986

[1986] I.L.R.M. 318
(O’Hanlon J)

O’HANLON J

delivered his judgment on 28 January 1986 saying: A train robbery occurred at Sallins, Co. Kildare on 31 March 1976. The plaintiff, Edward Noel Kelly, was arrested under s. 30 of the Offences Against the State Act 1939, on 5 April 1976, on suspicion of having been concerned in the holding-up of, and robbery from, the train. He was released after questioning, and later arrested and charged with offences connected with the robbery from the train. He was put on trial before the Special Criminal Court, but the first trial proved abortive. A second trial took place before the Special Criminal Court in the year 1978, and he was found guilty of the charges brought against him and was sentenced to twelve years’ penal servitude in respect of each of the offences referred to in the charges.

An important, and probably crucial, part of the evidence against the plaintiff in the course of the said criminal trial consisted of a statement in writing signed by the plaintiff and alleged to have been freely and voluntarily made by him while detained by the Gardaí in exercise of their powers under s. 30 of the Offences Against the State Act 1939. During the course of the trial an application was made to the Special Criminal Court on behalf of the plaintiff to exclude the said statement from consideration by the court on the grounds that it had not, in fact, been made freely and voluntarily, but was made as a result of the use of unlawful force and violence by members of the Garda Síochána against the plaintiff, together with threats and intimidation, false imprisonment, and refusal of access to a solicitor despite repeated requests by the plaintiff for such rights of access. These allegations were denied by the Gardaí involved in the detention and questioning of the plaintiff. The matter was considered at very considerable length by the Special Criminal Court, and having heard the evidence adduced by both sides, and legal submissions by counsel, the court rejected the allegations made by the plaintiff and ruled that the statement had been freely and voluntarily made by the plaintiff and was admissible in evidence.

By plenary summons dated 5 April 1982, the plaintiff commenced proceedings for damage against Ireland, the Attorney General, and 18 named members of the Garda Síochána. The cause of action was stated as ‘assault and battery, false imprisonment, intimidation and failure to vindicate Constitutional rights’. On 21 July 1983, notice of discontinuance was served on the individual members of the Garda Síochána and the proceedings continued against Ireland and the Attorney General as the only remaining defendants.

A statement of claim was delivered on 27 July 1983, from which it emerged that the allegations of assault and other breaches of the plaintiff’s personal rights upon which the claim for damages was based were identical with those upon which he had relied in seeking to have his statement made to the Gardaí excluded in the course of the criminal proceedings before the Special Criminal Court.

A defence was delivered on 14 December 1983. Paragraph 12 thereof refers to the prosecution of the plaintiff before the Special Criminal Court and his conviction on 13 December 1978, and Paragraph 13 reads as follows:

The issues raised in these proceedings were raised and adjudicated upon in the course of the said proceedings and properly and lawfully determined beyond all reasonable doubt against the plaintiff and the plaintiff’s claim is res judicata as between the plaintiff and the defendants.

Finally, in Paragraph 14 of the defence, the defendants plead that in the premises, the plaintiff is estopped from raising or litigating the subject matter of these proceedings.

The plaintiff, in his reply, dated 6 February 1984, commences with a general joinder of issue, and then replies particularly to the matters pleaded in Paragraphs 12, 13 and 14 of the defence. He denies that the issues raised in these proceedings, or any of them, are matters which are res judicata as between the plaintiff and the defendants. There is a further plea that by reason of a Government statement dated 7 June 1983, and further by reason of the defendants’ consenting to, or not objecting to an application for renewal of the plenary summons, the defendants are estopped from raising the plea of estoppel against the plaintiff which is found in Paragraph 14 of the defence. There is no specific denial of the plea that the issues raised in these proceedings were raised and adjudicated upon in the course of the said criminal proceedings and properly and lawfully determined beyond all reasonable doubt against the plaintiff, but the general joinder of issue would suffice to put the defendants on proof of this matter.

An order was made by the President of the High Court, Finlay P, on 17 May 1984, for the trial of a preliminary issue by a judge without a jury, as to whether the plaintiff was estopped by the determination of issues of fact against him by the Special Criminal Court from re-litigating the said issues of fact in the present proceedings; whether the defendants, in turn, were estopped from relying on the said defence of estoppel by reason of the Government statement of 7 June 1983, or by reason of other acts of conduct which were ultimately detailed in Paragraph 2 of the defence filed in connection with the trial of the issue.

The defendants were nominated as plaintiffs for the purpose of the trial of the issue and delivered their statement of claim on 17 May 1984, repeating their previous plea that the same issue on which the plaintiff relied for the purpose of claiming damages in these proceedings had been already raised, and determined against him, in the course of his trial before the Special Criminal Court, and claiming that the plaintiff’s action should be struck out as being estopped per rem judicatam or alternatively as constituting an abuse of the process of the court.

The plaintiff’s defence in the issue, dated 31 July 1984, denies that any privity exists between the defendants and the Director of Public Prosecutions and therefore says that the plea of res judicata is not open to the present defendants. The remainder of the defence in the issue is concerned with the plea of estoppel against the defendants based on the Government statement of 7 June 1983, and also by reason of the defendants’ course of conduct in relation to the plaintiff’s action for damages since its commencement. The defence does not contain a denial that the issues of fact relied upon by the plaintiff in support of his claim for damages are the same as those heard and determined against him by the Special Criminal Court in the course of the criminal proceedings already referred to.

This judgment is concerned with the resolution of the questions which arose for determination in the course of the trial of the preliminary issue.

The defendants say that by the application of the doctrine of issue estoppel, or alternatively by reason of the fact that the plaintiff’s proceedings should be regarded as an abuse of the process of the court, the plaintiff is precluded from pursuing his present claim for damages and his action should be struck out without allowing it to proceed further.

The pleadings delivered for the purpose of the trial of the issue were amended during the course of the hearing to enable the plaintiff to rely on the further plea that fresh evidence had come to light since the conclusion of the criminal trial of such a character that the plea of estoppel raised by the defendants should not be allowed, and consequential amendments were allowed of the reply filed on behalf of the defendants for the trial of the issue.

While the issues now arising for determination between the parties appear to be precise, the legal argument ranged over a wide field, (some of it going outside the scope of the formal pleadings), and to deal with it adequately I have prepared a list of questions, the answers to some or all of which should determine the outcome of the trial of the issue. They are as follows:

1. Is the decision of the Special Criminal Court on a particular issue which arises in the course of a criminal trial before that court, susceptible of formal proof for the purpose of later civil proceedings in a different court?

2. If it is, and if it is established that a party against whom such issue has been determined by the Special Criminal Court is seeking to re-litigate the same issue in subsequent civil proceedings, is he precluded from doing so by issue estoppel, or on the basis that the later proceedings amount to an abuse of the process of the court?

3. If a defence, such as is referred to in Question No. 2 would prima facie arise in the present case, has fresh evidence come to light since the conclusion of the criminal proceedings which should preclude that defence being raised?

4. Are the defendants estopped from raising the said defence, having regard to any or all of the following matters:

(a) The Government Statement of 7 June 1983;

(b) The defendants’ failure to object to renewal of the plenary summons on 27 July 1983;

(c) The defendants’ delay in raising any objection to the plaintiff’s entitlement to pursue his present claim for damages;

(d) The defendants’ agreement to join with the plaintiff in seeking an early trial of the action?

I can now state my conclusions in relation to the foregoing questions.

Formal Proof of Decision of the Special Criminal Court
Paul Carney SC for the plaintiff submitted that there was no procedure available for the formal proof in later civil proceedings of decisions taken in the course of a criminal trial before the Special Criminal Court. An official transcript was kept for the purpose of appeals or applications for leave to appeal to the Court of Criminal Appeal, but this was not available for any other purpose. (O. 86, Rule 14, Rules of the Superior Courts). An application by counsel for the plaintiff to see the transcript after the court had ruled on the admissibility of the statements had been refused during the course of the trial.

I do not think this objection is well-founded. Rule 25 of the Special Criminal Court Rules 1975 (SI No. 234 of 1975), makes provision for the official record of the proceedings before the Special Criminal Court and while the practice has been (in accordance with the provisions of s. 41 of the Offences Against the State Act 1939) for the court to control its own procedures in all respects, I have no doubt that where it is necessary for the purpose of doing justice in a case involving litigation between contesting parties, an extract from the transcript of the proceedings before the court would be made available or its production could be compelled should it become necessary to do so. However, it does not appear to be incumbent on me to resolve this particular legal problem in view of the fact that the pleadings must be read as an admission by the plaintiff that the issues he now seeks to litigate are the same as those which already arose for consideration during the course of his trial before the Special Criminal Court and which that court decided against him.

 

Are the Defendants Entitled to Plead Estoppel per rem judicatam or Abuse of the Process of the Court?
There is very little authority on the question of the availability of the decision of a court trying criminal proceedings for the purpose of creating an estoppel in subsequent civil proceedings. Lord Diplock, with whose opinion the other members of the House of Lords concurred, in Hunter v Chief Constable of West Midlands [1981] 3 All ER 727 said (at p. 734 of the report): ‘My Lords, this is the first case to be reported in which the final decision against which it is sought to initiate a collateral attack by means of a civil action has been a final decision reached by a court of criminal jurisdiction’.

That was an appeal from a decision of the Court of Appeal in England (reported sub nom. McIlkenny v Chief Constable of West Midlands [1980] 2 All ER 227) in the case of a number of plaintiffs who alleged on their trial for murder that they had been assaulted by police officers during questioning and confessions obtained from them by such unlawful means. The trial judge, having heard all the evidence on both sides, disbelieved the plaintiffs; ruled that the confessions were admissible in evidence, and the plaintiffs were convicted. They subsequently brought proceedings for damage against the police officers concerned, in which they sought to re-open the charges of assault which had already been investigated by the trial judge during the criminal proceedings.

The Court of Appeal, overruling a decision of Cantley J, ordered that the action for damages should be struck out, (a) because the issue had already been finally determined against them by a court of competent jurisdiction in the criminal proceedings to which they were parties and in those proceedings they had had a full and fair opportunity of presenting their case, and (b) because in all the circumstances it would not be just to allow them to reopen the issue. The court also held that in any event it would be an abuse of process to allow the plaintiffs to litigate again the identical issue which had already been decided against them in the criminal proceedings. An application to rely on fresh evidence was rejected, because it was available at the time of the trial, had reasonable diligence been exercised, and also on the basis that there were no grounds for thinking that if adduced it would materially change the aspect of the case.

The facts in McIlkenny and Hunter closely approximate to the situation obtaining in the present case, in that they concern a trial within a trial in criminal proceedings, wherein allegations of unlawful treatment of an accused person in the course of his questioning by the police were rejected by the court of trial and were subsequently made the basis for civil proceedings for damages against the police officers concerned and against those vicariously responsible for their conduct.

Lord Denning MR took the view that issue estoppel was a clearer legal concept than the vaguer doctrine of abuse of the process of the court; that it arose whenever there had been a decision of a court of competent jurisdiction against a party in proceedings before that court — whether civil or criminal — in which the party had a full opportunity of contesting the issue, and that estoppel could be pleaded to prevent that party re-litigating the same issue before another court, whether or not the party pleading estoppel was party or privy to the first proceedings.

Exceptions to the rule could arise on a number of grounds, one of them being the production of fresh evidence which could not with reasonable diligence have been adduced during the first proceedings, but Lord Denning felt that such evidence must be so weighty in character as to be conclusive (p. 237e). He said:

In this context the words of Lord Loreburn LC (with the support of the majority of the House of Lords) in Brown v Dean [1910] AC 373 at p. 374 supply the right test. Referring to the extreme value of the old doctrine interest reipublicae ut sit finis litium , he said:

‘When a litigant has obtained a judgment in a Court of Justice, whether it be a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive’.

Goff LJ, while agreeing that the action should be struck out, did not agree that the defendants were entitled to rely on issue estoppel, since he held that to do so they should be parties or privies to the earlier proceedings and he held that the Chief Constable could not be identified for this purpose with the Crown as prosecutor at the trial.

He held, however, that the second proceedings amounted to an abuse of the process of the court, saying (at p. 245h):

It is not, I think, disputed that this court has power to strike out the statements of claim in these actions on this ground both under RSC Ord 19, r. 19, and its inherent jurisdiction and also to do so at this early stage on these motions, but, whether accepted in argument or not, still in my judgment the court clearly has a discretionary power to stay an action on the ground that the plaintiff is seeking to raise again a question already judicially decided against him, where he has had a full opportunity of presenting his whole case, even although the parties are different so that there is technically no estoppel. In my judgment also, this power can be exercised at an early stage on application to strike out, although its exercise then calls for great caution

He referred to the following passage in the judgment of A. L. Smith LJ in Stephenson v Garnett [1898] 1 QB 677 at pp. 680–681:

I do not rest my decision upon the ground that the matter is res judicata, for I do not think it can be said that it is. I put my decision on the ground that the identical question raised in this action was raised before the county court judge upon an application for an order to tax the costs of the action in the county court, and was heard and determined by him … the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court.

Goff LJ continued at p. 247:

Prima facie, therefore, in my judgment, … this is a case in which we ought to strike out these statements of claim as against the defendants, particularly as it seems to me that, whilst accused persons ought to be given full opportunity of making a case if they think they have one that the confessions relied on by the prosecution were obtained by police violence, the police ought to be protected against subsequent harassment by the same charges being pursued against them in civil proceedings when they have been fully vindicated at the criminal trial.

With regard to the admission of fresh evidence to defeat the plea of estoppel or a plea that the action was an abuse of the process of the court, Goff LJ adopted the test referred to by Earl Cairns LC in Phosphate Sewage Co. v Molleson (1879) 4 App. Cas. 801 at p. 814, ‘namely, that the new evidence must be such as entirely changes the aspect of the case’. He continued: ‘So, it is not permissible to call further evidence which was available at the trial or could by reasonable diligence have been obtained and the fresh evidence must be likely to be decisive’ (at p. 248–9).

Sir George Baker was prepared to decide against the plaintiffs on both grounds — issue estoppel and abuse of the process of the court — and stated the test for the admission of fresh evidence as follows (at p. 258h):

The test … is (i) that it was not and could not have been obtained by reasonable diligence, and (ii) that it entirely changes the aspect of the case (see per Earl Cairns LC in Phosphate Sewage Co. v Molleson (1879) 4 App. Cas. 801 at p. 814) in that it is ‘so material as to make it reasonably probable that the action will succeed’ (perVaughan Williams LJ in Birch v Birch [1902] P 130 at pp. 136–137) and it must be credible, that is, ‘well capable of belief in the context of the circumstances as a whole, including the other evidence …’ (see R v Beresford (1971) 56 Cr App R 143).

When the House of Lords came to consider the same issues in Hunter’s case, they upheld the decision of the Court of Appeal in McIlkenny but adopted the approach found in the judgment of Goff LJ in preference to that favoured by Lord Denning, as to the correct basis for striking out the civil claim for damages.

Lord Diplock said at p. 733 of the report:

Nevertheless, it is my own view, which I understand is shared by all your Lordships, that it would be best, in order to avoid confusion, if the use of the description ‘issue estoppel’ in English law, at any rate , (it does not appear to have been adopted in the United States), were restricted to that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies, of which the characteristics are stated in a judgment of my own in Mills v Cooper [1967] 2 All ER 100 at p. 104, that was adopted and approved by this House in Director of Public Prosecutions v Humphrys [1976] 2 All ER 497 … the case in which it was also held that ‘issue estoppel’ had no place in English criminal law.

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

Lord Diplock held that where such decision was a decision of a court of trial in criminal proceedings, the only, and proper, method of challenging the correctness of the decision was by way of appeal against conviction to the Criminal Division of the Court of Appeal.

As to the introduction of fresh evidence by way of answer to an application to strike out the proceedings as an abuse of the process of the court, Lord Diplock agreed with what had been said by Goff LJ in the Court of Appeal, that the new evidence must be such as ‘entirely changes the aspect of the case’ — a test which he described as more rigorous than that which applied when fresh evidence was sought to be introduced on the hearing of an appeal in a civil action, or in the course of a conventional appeal in criminal proceedings.

In assessing the different views expressed by the members of the Court of Appeal in McIlkenny, and by Lord Diplock, expressing the opinion of the House of Lords in Hunter, it is difficult to see why, in principle, the concept of issue estoppel should not be applicable — in appropriate circumstances — in relation to the determination of a particular issue against an accused person in criminal proceedings. It is not necessary for the purposes of the present case to decide whether the fact that a person has been convicted of a criminal offence may be proved in later civil proceedings, and if so in what circumstances, and with what effect. This was the issue debated in Hollington v F. Hewthorn & Co [1943] KB 587, where the Court of Appeal in England decided ‘both on principle and authority’ that evidence of a previous conviction was inadmissible in civil proceedings.

In reaching that conclusion, however, the court found it necessary to overrule a number of earlier decisions which had stood unchallenged for many years. In one of these, In the Estate of Crippen [1911] P 108, the President of the Probate, Divorce and Admiralty Division admitted evidence of the conviction of Crippen, and also concluded that it amounted to prima facie proof that he had murdered his wife.

While the law in England, as declared by the Court of Appeal in Hollington was altered by the enactment of the Civil Evidence Act 1968, the correctness of that decision was also seriously challenged by Lord Denning in McIlkenny, when he said at p. 237a: ‘Beyond doubt, Hollington v Hawthorn was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation’.

Having regard to the great diversity of judical opinion as between the Court of Appeal which decided Hollington and that which decided McIlkenny I would prefer to leave open the question whether evidence of previous conviction may be given in civil proceedings in this jurisdiction where it is clearly relevant to the issue the court has to try, and as to whether it can be relied on to establish the guilt of the accused as well as the fact of his conviction. For the purposes of the present case it is sufficient to decide whether evidence can be given as to the decision of a particular issue in the course of the criminal proceedings, other than the issue as to whether the accused was guilty of the offence charged, and to consider the effect of such decision if the evidence is admissible.

The argument against so allowing it is stated as follows by Lord Salmon in Director of Public Prosecutions v Humphrys [1977] AC 1:

The doctrine of issue estoppel is complex and highly technical, even when applied to civil proceedings alone. In this field, however, it is firmly entrenched and performs a useful function. It brings finality to litigation. The whole procedure relating to pleadings in the civil courts is appropriate for defining with precision the issues between the parties. Once these issues have been ascertained and fought out and then finally adjudicated upon in the courts, it would be unjust and absurd if the disappointed party, save in certain exceptional circumstances which I need not recite, were allowed to reopen the issues and start litigating them all over again. It is in the public interest that litigation should end.

In the criminal field, however, besides being complex and technical, the doctrine of issue estoppel would, in my view, also be inappropriate, artificial, unnecessary and unfair. It would be inappropriate because there are no pleadings defining the issues and no judgments explaining how the issues (even if identifiable) were decided. Sometimes, as in the present case, it would be possible to identify the issues. But it would rarely be possible to do so. Since juries give general verdicts ‘guilty’ or ‘not guilty’ it would often be difficult, if not impossible, to do more than guess how they had decided any issue capable of identification.

The same difficulty was mentioned in the judgments in McIlkenny, namely, that even a decision of a judge on the issue of admissibility of statements was merged in a later verdict of a jury which had to consider what weight they should give to statements which were admitted. This problem does not arise, however, in the case of the Special Criminal Court where the decision on the preliminary issue and the final verdict is given by the court itself, sitting without a jury, and where a judgment can be and is given, defining the issue and explaining how it has been decided.

When the House of Lords stated in Humphreys that the doctrine of issue estoppel had no place in English criminal law, their Lordships were dealing with a situation where a plea of estoppel was sought to be raised against the giving of certain evidence in a criminal trial because of findings made in a previous criminal trial, and it does not appear to me to be an authority for the proposition that the decision of an issue against a party in criminal proceedings may not give rise to estoppel against him in subsequent civil proceedings. Similarly, with regard to the judgment of the Supreme Court, delivered by Henchy J, with the concurrence of the other members of the court, in Corporation of Dublin v Flynn [1980] IR 357, the decision was that findings made in previous criminal proceedings against the same defendant did not give rise to an estoppel against him in subsequent criminal proceedings or dispense the prosecution from the necessity of proving against him all the ingredients necessary to constitute the second offence.

The following passages appear at pp. 363–365 of the report:

In the criminal law the conclusive determination in an earlier prosecution of issues (as distinct from verdicts, which are impressed with conclusiveness under the rules of autrefois convict or autrefois acquit) arises, if at all, for the benefit of an accused …

It is not necessary in this case to make a ruling as to whether the total rejection of issue estoppel made in the Humphreys case should be followed in this State, for in that case and in the others there mentioned (with the exception of R v Hogan [1974] QB 398) the question of issue estoppel arose only at the invocation of the defence in respect of issues decided in a previous prosecution in favour of the accused. Here it is being raised against the accused …

In my judgment the prosecution, in this or in any other criminal charge, is not relieved of the onus of proof in regard to necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier proceedings. It is of the essence of a criminal trial that it be unitary and self-contained, to the extent that proof of the ingredients of the offence may not be established as a result of a dispersal of the issues between the court of trial and another tribunal.

In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such decision may give rise to issue estoppel in later civil proceedings in which that party is also involved. Such estoppel would arise, not only in relation to the specific issue determined (in this case, whether the statement was made freely and voluntarily) but also to findings which were fundamental to the court’s decision on such issue.

As to the inquiry which may be made to identify the issue, see Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853 at p. 965 per Lord Wilberforce:

Mr Spencer Bower, in his work on Res Judicata (1924, p. 9) states the principle as being ‘that the judicial decision was or involved a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised’ — a formulation which invites the inquiry how what is ‘involved’ in a decision is to be ascertained. One way of answering this is to say that any determination is involved in a decision if it is a ‘necessary step’ to the decision or a ‘matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision’ (R v Township and Inhabitants of Hartington Middle Quarter (1855) 4 E & B 780) and from this it follows that it is permissible to look not merely at the record of the judgment relied on, but at the reasons for it, the pleadings, the evidence (Brunsden v Humphrey (1884) 14 QBD 141) and if necessary other material to show what was the issue decided (Flitters v Allfrey (1874) LR 10 CP 29).

And see also, Hoystead v Commissioner of Taxation [1926] AC 155.

It was contended, however, on behalf of the plaintiff in the present case that issue estoppel could not arise in the circumstances of the present proceedings by reason of the lack of privity between the Director of Public Prosecutions, who was prosecutor in the criminal proceedings, and Ireland and the Attorney General, who are named as defendants in the civil proceedings.

Without deciding whether privity of parties is an essential feature of issue estoppel — a topic on which there was a division of opinion between the members of the Court of Appeal in McIlkenny — I am satisifed that in the present case such privity does exist. The criminal prosecution was brought by the People, at the suit of the Director of Public Prosecutions. S. 9 of the Criminal Justice Administration Act 1924, provided that all criminal charges prosecuted upon indictment in any court should be prosecuted at the suit of the Attorney General. (It referred to the Attorney General of Saorstát Éireann, but the section is now taken as referring to the Attorney General appointed under the Constitution of Ireland).S. 41 (4) of the Offences Against the State Act 1939, provides that, ‘subject to the provisions of this Act, the practice and procedure applicable to the trial of a person on indictment in the Central Criminal Court shall, so far as practicable, apply to the trial of a person by a Special Criminal Court’. The Special Criminal Court Rules 1975 (SI No. 234 of 1975), provide in Rule 10 for the filing of indictments against persons charged before the court, and, in Rule 10 (2) the provisions of the Criminal Justice (Administration) Act 1924 are made applicable to every such indictment, with whatever modifications are necessary.

Counsel also referred to the provisions of Art. 30 of the Constitution but s. 3 of that Article upon which some reliance was placed does not appear to me to be applicable, as the Special Criminal Court is not a court constituted under Art. 34 of the Constitution.

By virtue of s. 3 of the Prosecution of Offences Act 1974, the Director of Public Prosecutions is to perform all the functions capable of being performed in relation to criminal matters by the Attorney General. Lord Denning in McIlkenny (at p. 240a) expressed the view that in the civil proceedings for damages the Chief Constable was representing the public, and that the defendants in those proceedings and the Director of Public Prosecutions in the criminal proceedings should be regarded as being ‘all under the umbrella of the Crown’. The Chief Constable of the West Midlands and the other defendants in the action for damages were made vicariously liable for the wrongful acts of the police officers by virtue of s. 48 of the Police Act 1964, and Goff LJ said: ‘I cannot see any privity between the Crown in its role as state prosecutor and the defendants, as by statute tortfeasors’.

The same difficulty does not appear to me to exist in this country. The People, at the suit of the Director of Public Prosecutions, are the prosecutor in the trial of a criminal charge on indictment, and the People, in this respect identified with the State, must bear the responsibility for tortious acts committed by servants of the State in the course of the execution of their duties.

Walsh J in Byrne v Ireland [1972] IR 241, at p. 262 et seq., contrasted the legal position obtaining in the two countries in this respect. He said: ‘… the King, or the Crown, was and remains the personification of the State in Great Britain’. Referring to an action against the State in this country he said: ‘… in effect the Attorney General would be joined in a representative capacity as the law officer of the State designated by the Constitution. If the claim should succeed, judgment would be against the State and not against the Attorney General’ (at p. 289).

Budd J said at p. 308:

S. 6 (1) of the Ministers and Secretaries Act 1924, vests in him (the Attorney General) the administration and business generally of the public services in connection with the representation of the Government of Saorstát Éireann (now Ireland) and of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively.

In criminal proceedings, on indictment, the Director of Public Prosecutions acts in a representative capacity on behalf of the People of Ireland and in defending a civil claim against the State the Attorney General also acts in a representative capacity on behalf of the People of Ireland. Accordingly, no problem arises, in my opinion, as to the question of privity of parties in the two sets of proceedings.

Apart altogether from the applicability of the concept of issue estoppel in the circumstances of the present case, I would also hold, as did the House of Lords in Hunter, (upholding, in this respect, the decision of the Court of Appeal in McIlkenny), that in the absence of special circumstances, an effort to challenge the correctness of a decision made by a court of competent jurisdiction against a party in the course of a criminal trial, by means of civil proceedings instituted by such person after that decision has been made, should normally be restrained as an abuse of the process of the court.

This leads on to a consideration of the special circumstances which, the plaintiff contends, exist in the present case, even if the application to strike out the proceedings were otherwise well-founded.

The Fresh Evidence Sought to be Adduced
The fresh evidence sought to be adduced by the plaintiff to defeat the plea of issue estoppel and the plea that the present action constitutes an abuse of the process of the court, is concerned, mainly, with medical evidence regarding injury sustained by the plaintiff to his left ear, which, he alleges, was caused by blows inflicted on him by members of the Gardaí while he was detained for questioning in the month of April 1976.

Dr. Sean O Cleirigh repeated evidence he had already given when called as a witness on behalf of the plaintiff during the prosecution before the Special Criminal Court in the year 1978 and added to that evidence in some respects.

During the trial of the issue in the present proceedings he testified that he had examined the plaintiff on 8 April 1976, at Mountjoy, and found evidence of injuries, as follows:

He had extensive bruising of both arms, upper left arm, middle right arm, and on left shoulder. Also across upper margin of pelvis near the buttock, and was tender over that area. He had a bruise about 1″ diameter at the end of the sternum (breast-bone) and 3″ above and 1″ outside the left nipple. He had bruising over the left thigh at the top of the femur and between the mid and upper third of the femur. He had extensive bruising behind the left ear, extending below the ear, and brown discolouration of the skin behind the right ear. There was no evidence of bleeding. He was very anxious. He gave a history of being repeatedly hit over the ears — ‘slapped’ — having his ears twisted, being punched on arms and legs, knocked to the ground, and spreadeagled to the wall first.

He gave evidence of having examined another prisoner, John Fitzpatrick on the same date, who made similar complaints, and in his case also he found significant evidence of bruising in and around both ears. Dr. O Cleirigh said that at that time he was unable to give any prognosis about long-term consequences, but in the year 1985 he had referred both Kelly and Fitzpatrick to a specialist in connection with hearing complaints made by them.

Mr McAuliffe Curtin, FRCSI, ENT Specialist, gave evidence that he examined both Edward Noel Kelly and John Fitzpatrick in 1984, and in each case found some diminution of hearing in one ear, of a character which would not affect their ability to hear a normal conversation but would impair the ability to hear with the affected ear in the case of a whispered conversation, or group conversation, or against background noise, or to determine sound location.

Such condition was consistent with having been brought about by one of two causes — Menier’s Disease, or trauma to the ear — but was more consistent with trauma since in the case of Menier’s Disease the pattern would be different.

It was contended on the part of the plaintiff that (a) the evidence of Mr Curtin strongly supported the plaintiff’s allegation that he had suffered severe blows to the ears while in custody in 1976, and (b) that this conclusion was further strengthened by the evidence of John Fitzpatrick that he was the victim of a similar assault and had been found at this stage to have suffered a like diminution in hearing. Psychiatric evidence was given by Dr. Noel Browne, and by Professor Robert Daly. Dr. Browne saw the plaintiff in 1977 (March), when he was complaining of depression, sleeplessness, agressiveness and severe anxiety. He said: ‘I formed the opinion that his symptoms stemmed from the charges of involvement in the robbery’. Although he was, presumably, available as a witness when the second trial of the plaintiff took place in the year 1978, he did not give evidence at that trial, and his evidence, in any event, appeared to me to be neutral in character in relation to determining responsibility for the plaintiff’s injuries.

Professor Daly saw the plaintiff on a number of occasions, at the request of the plaintiff’s legal advisers, commencing on 12 June 1980. In that year the plaintiff complained of headaches, numbness in the head, especially on the left side, but did not complain about his hearing. Professor Daly formed the view that he was suffering from stress brought on by torture and inhuman and degrading treatment, and recommended that he should be medically examined in a comprehensive way.

John Fitzpatrick gave evidence that he was arrested and detained around the same time as the plaintiff, and testified that he had been subjected to prolonged and violent assaults at the hands of the Gardaí, involving injury to many parts of his body, and in particular that he had been banged on his ears continuously until his hearing ‘just went altogether’. The medical examination of this prisoner by Dr. O Cleirigh, and other prisoners detained in connection with the same charges, took place at Mountjoy Prison on 8 April 1976, at the same time as the plaintiff was examined, and all were present at, and could witness the examination of, their fellow-prisoners.

Mr Fitzpatrick was initially charged with participation in the robbery but the charge against him was struck out in the District Court. Apprehending that there was a warrant out for his arrest, and that he would be re-charged, he said that he ‘went underground’ and did not emerge until the year 1983, when he gave a press conference. It was not made clear, however, when he ‘went underground’, or how effective his steps were to achieve this result. He said that immediately after his release from Garda custody he consulted a solicitor about his allegations of ill-treatment. A plenary summons was issued on his behalf on 7 September 1976, and a statement of claim was delivered on 7 March 1977.

In assessing the significance of this additional evidence, I adopt the test which was referred to by Goff LJ in McIlkenny, and approved by the House of Lords in Hunter. First, it must be evidence of such a character as ‘changes the whole aspect of the case’; secondly, it must be evidence which could not, by the exercise of reasonable diligence, have been made available at the previous hearing, and thirdly, it must be evidence which is ‘well capable of belief in the context of the circumstances as a whole’.

With regard to the evidence now given by John Fitzpatrick, the evidence failed to satisfy me that this could not have been obtained and made available as evidence for the defence in the prosecution of the plaintiff before the Special Criminal Court, had reasonable diligence been exercised for this purpose. It was not suggested that the plaintiff was unaware of his identity, or of the nature of his complaints, and no evidence was given as to any efforts made to establish contact with him or to secure his attendance as a witness for the defence on the trial of the plaintiff. Dr. O Cleirigh, who had carried out the examination of the plaintiff and his co-accused, and of John Fitzpatrick, and heard their complaints of assault, was available and was called as a witness for the defence at the trial.

With reference to the evidence now tendered indicating the presence of some degree of long-term damage to hearing in one ear in the case of the plaintiff and also of John Fitzpatrick, it appears to me that all that is achieved by such evidence is to reinforce the evidence already given during the trial of the plaintiff by Dr. O Cleirigh, who testified that he found very clear objective signs of physical trauma in, and in the region of, the plaintiff’s ears when he examined him, some two days after the alleged assaults had taken place. It was not suggested that his evidence in this respect was rejected or doubted by the Special Criminal Court in reaching its conclusions concerning the allegations made by the plaintiff against the Gardaí, and that evidence must have conveyed to the court that force of some severity had been applied to the plaintiff’s head in the region of his ears, as well as to other parts of his body.

It does not appear to me that any dramatic alteration in that situation is brought about by the evidence of Mr McAuliffe Curtin. He came to the conclusion that some degree of permanent impairment of hearing in one of the plaintiff’s ears had taken place, not involving substantial disability, and attributable, as a matter of probability, to the application of some degree of force to the plaintiff’s head. He made the same finding in relation to John Fitzpatrick. His evidence concerned the aftermath, or probable aftermath, of the application of such force.

Dr. Browne’s evidence was of a general character, not related directly to allegations of assault against the plaintiff. Professor Daly saw the plaintiff for the first time some four years after the alleged assaults had taken place, and when objective, physical signs of injury could no longer be observed. His conclusions appear to me to amount to no more than a statement that the plaintiff was in a condition of nervous, mental stress when he saw him, and that he, Professor Daly, was prepared to accept, on the account given to him by the plaintiff, that it had been caused by ill-treatment at the hands of the Gardaí four years previously. In the meantime, the plaintiff had been involved in the stress and strain of two lengthy criminal trials, resulting in his ultimate conviction and the imposition of a long prison sentence, which he was in the process of serving. Professor Daly’s evidence appeared to me to amount to no more than an expression of opinion as to the credibility of the plaintiff as a witness.

I am not satisfied that the fresh evidence on which the plaintiff seeks to rely is of such a character that, if presented in the course of the criminal trial, it would perforce have changed the whole aspect of the case in relation to the court’s decision to reject the plaintiff’s allegations about the circumstances under which he came to make the inculpatory statement. It is not, in my opinion, sufficient to defeat the plea that the plaintiff’s present claim is estopped by the previous decision of the issue by the Special Criminal Court, or the plea that it would amount to an abuse of the process of the court were he allowed to pursue it again.

The Plea of Estoppel by Conduct
Finally, there remains for consideration the plea that even if the plaintiff would normally be precluded from relitigating the issue of his alleged ill-treatment at the hands of the Gardaí, by reason of the previous determination of that issue against him by the Special Criminal Court, nevertheless he must be allowed to do so in the circumstances of the present case by reason of the course of conduct adopted by the Government, in issuing a statement on 7 June 1983, which is said to have invited, or challenged, the plaintiff to proceed with an action for damages, and later by the nominal defendants in co-operating in an active manner in steps taken to regularise the proceedings and bring the matter on for trial as quickly as possible.

On the evidence given at the trial of the issue I am satisfied that the Government must accept responsibility for the issuing of the statement of 7 June 1983. The relevant passage, for the purpose of the present proceedings, is contained in the closing paragraphs of the statement which read as follows:

It is further being suggested that, in a situation where a prisoner has been on hunger-strike for nearly 40 days, the onus is on the Government or the Minister to take some initiative when all legal procedures open to the prisoner were taken by him and are now exhausted. Without accepting that proposition which if accepted would enable anybody convicted of a crime to use the hunger-strike weapon, the Government do not accept that all relevant legal processes were exhausted.

Without prejudice to the question of an appeal to the European Court which apparently is being initiated and in relation to which it would be inappropriate to comment, the Government note that civil proceedings have been initiated in the High Court by one of the prisoner’s co-accused on his own behalf alleging ill-treatment etc., by members of the Garda Síochána. No obstacle has at any stage been placed by the prison authorities in the way of the prisoner’s taking similar action if he wished to do so and this still obtains though some or all of the alleged causes of action put forward by his co-accused may now be barred to him because of the passage of time.

Furthermore, there is a well-established policy in the courts whereby cases where a person is in custody are given priority over cases where nobody is in custody and, while that policy normally is relevant only to criminal cases, it is obviously open to a litigant in a civil case to apply for similar priority in accordance with that policy on the grounds that a favourable outcome could be adduced as being relevant, even if only indirectly, to the question of his imprisonment. It is not the responsibility of the Government or the Minister for Justice that no such proceedings were instituted.

It would appear that that statement was issued without the knowledge that the plaintiff had, in fact, already commenced proceedings by the issue of a plenary summons in the High Court, claiming damages for assault and battery, false imprisonment, intimidation and failure to vindicate constitutional rights. This summons, although issued on 5 April 1982, had not been served at the date of the statement and an application to renew the summons was made on 27 July 1983 (after the time for making such application under the Rules had expired), and was granted, with no objection being taken by the defendants.

I cannot read into the Government statement any undertaking that reliance would not be placed upon any defence which was open to the defendants if such proceedings were, in fact, commenced. There is, on the contrary, a clear indication that the Government was reserving it right to rely on the provisions of the Statute of Limitations, if that Statute afforded a defence to the claim. As the statement does not, in my opinion, contain any representation, either express or by necessary inference, of the type suggested by the plaintiff, I hold that it does not give rise to an estoppel which would safeguard the plaintiff’s cause of action.

The other essential element required if estoppel by conduct is to be pleaded successfully, is that the representation had the effect of inducing the plaintiff to act to his detriment. The statement did not induce him to commence the present proceedings, since he had already instituted them over a year previously, and it is to be presumed that he did not do so without taking legal advice as to whether he had a cause of action with some reasonable prospect of success. To say that he was induced by the Government statement to act to his detriment would seem to involve him in saying that he was induced to proceed with an action which he knew, or had been advised, could not succeed, if the defendants relied on all defences open to them, but no such case was made on behalf of the plaintiff on the trial of the issue.

Accordingly, the plea of estoppel based on the Government statement fails on two grounds — first, as to nature of the representation made and the meaning which could reasonably be derived thereform, and secondly, in relation to the effect produced on the plaintiff himself by the statement in question.

I come to a similar conclusion with regard to the various steps taken during the course of the proceedings, and the co-operation shown on the part of the defendants in allowing the plenary summons to be renewed without objection; in joining with the plaintiff in seeking an early hearing for the action, and in withholding the plea of estoppel until the time came to file the defence in the action. It appears to me that none of these actions or omissions on the part of the defendants should have had the effect of lulling the plaintiff into a false sense of security concerning the possibility of a full defence being put forward in answer to the claim and once again I would hold that no question of estoppel arises by reason of these matters or any of them.

Conclusion
I propose to decide in favour of the defendants on the trial of the issue. I hold that the plaintiff is precluded, by reason of the finding already made by the Special Criminal Court rejecting his allegations that he was assaulted and otherwise ill-treated by members of the Gardaí when detained for questioning in the year 1976, from re-opening the same issue in the present civil proceeding for damages. I further hold that I must accede to the application made by the defendants to strike out the statement of claim and dismiss the plaintiff’s action, on the two separate grounds (1) of estoppel, and (2) as being an abuse of the process of the court.

 

Donohoe v. Browne

Gannon J.

[1986] IR 94

Gannon J.
20th March 1986

On the 23rd July, 1983, a Honda motor cycle the property of and driven by James Donohoe collided with a motor car the property of Josephine Browne in County Cavan on the public road at Carrickabawn between Granard and Castlepollard. The driver of the motor car was Michael McCabe. In this action James Donohoe claims damages for personal injuries and loss sustained by him which he alleges were caused by the negligent driving by Michael McCabe of the motor car owned by Josephine Browne. In addition to denying negligent driving, the defendants plead that the plaintiff James Donohoe is precluded by estoppel from proceeding with his claim on the grounds that the issue of liability for the collision is res judicataand also on the ground that the claim is not maintainable by reason of s. 26, sub-s. 6 (a) and (b), and s. 37, sub-ss. 1 and 2, of the Civil Liability Act, 1961. By order of Hamilton J. (as he then was) made on the 23rd July, 1984, the issue of whether the plaintiff’s claim was barred by the statutory provisions and by estoppel of matter res judicata was directed to be tried by a judge without jury upon pleadings setting forth the issues. In the course of such pleadings the plaintiff raised the further issue that s. 29, sub-s. 6, and s. 37 of the Civil Liability Act, 1961, if effective to bar the plaintiff’s claim, are unconstitutional having regard to Article 34, s. 3, of the Constitution. The plaintiff also served upon the Attorney General a notice under order 60 of the Rules of the Superior Courts, 1962, informing him of the question of the validity of the law as raised in the pleadings. The matter now for determination is the application of the defendants for a determination of the issues directed to be tried by the order of Hamilton J. of the 23rd July, 1984, and for a ruling on the constitutional validity of the statutory provisions pleaded in defence.
The facts giving rise to the issues of res judicata and estoppel and the effect of ss. 29 and 37 of the Civil Liability Act, 1961, are admitted and may be summarised as follows: Josephine Browne, the owner of the motor car and the first defendant herein, commenced proceedings in the District Court on the 22nd August, 1983, against James Donohoe the plaintiff herein alleging damage to her motor car in the collision by reason of the negligence as alleged of James Donohoe. In those proceedings heard at Ballyjamesduff on the 17th November, 1983, the defendant herein Josephine Browne as plaintiff was awarded a sum of £633.64 damages for the negligence of James Donohoe. The amount of the award was 50% of the agreed value of the damages sustained by Josephine Browne in the collision. There was no counterclaim by James Donohoe in the District Court. The amount of an award of damages which James Donohoe might expect to recover in a claim by him if successful would exceed the range of the limited jurisdiction of the District Court. The matter of damages having been agreed previously, the only matter contested before the District Justice was whether the motor cyclist was liable for negligence, and the degree of fault attributable to the contributory negligence of the driver of the motor car if so found.
Against this award and apportionment of damages at 50%, Josephine Browne, the owner of the motor car, appealed to the Circuit Court sitting at Bailieboro, County Cavan, where the hearing took place before His Honour Judge Sheehy on the 14th March, 1984. Although the Circuit Court order states that further pleadings were filed, it appears that there was no further claim or counterclaim by James Donohoe in the Circuit Court and the full value of the damages to which Josephine Browne might be entitled was agreed at £1,267.28. It appears that the only matter contested in the Circuit Court on the appeal was whether the motor cyclist was liable to the owner of the motor car in damages for negligence and the degree of fault, if any, attributable to the driver of the motor car. Both parties were represented by solicitor with counsel. The order of the learned Circuit Court Judge is as follows:
“AND THE COURT DOTH FIND that the defendant was negligent and that the plaintiff was not negligent AND IT APPEARING TO THE COURT that the plaintiff was entitled to the sum of £1,267.28 on foot of the amount claimed in his civil process THE COURT DOTH ORDER that the plaintiff do recover from the defendant the said sum of £1,267.28.”
The plaintiff referred to in that order of the Circuit Court Judge is the first defendant in this High Court action and is the owner of the motor car. The plaintiff in the High Court proceedings is James Donohoe the defendant referred to in the order of the Circuit Court and the owner of the motor cycle. The second defendant in these High Court proceedings is the driver of the motor car and was not a party to the claim brought in the District Court nor on appeal in the Circuit Court. The liability of Josephine Browne for contributory negligence, if any, in the hearings in the Circuit and District Court and for negligence, as alleged in the High Court proceedings, can be only the vicarious liability for the participation of Michael McCabe her driver, the second defendant. In her proceedings against James Donohoe in the District Court and on appeal in the Circuit Court, Josephine Browne could have sued Michael McCabe as a defendant with James Donohoe but did not do so. In those proceedings and the appeal, James Donohoe was entitled under the Civil Liability Act, 1961, to have joined Michael McCabe with him as a third party and concurrent wrongdoer to make contribution towards any award which Josephine Browne might recover against him but he did not do so. The evidence of Michael McCabe was essential at the hearing in the Circuit Court and in the District Court on the issues of fact and the inferences therefrom to determine the questions relating to the negligence between the disputing parties, namely, Josephine Browne and James Donohoe. Although a party as a defendant with Josephine Browne in the present High Court proceedings commenced by James Donohoe, Michael McCabe makes no claim on his own behalf. His position as defendant derives only from his participation in the driving of Josephine Browne’s car with her authority such that by virtue of s. 118 and s. 3, sub-s. 5 of the Road Traffic Act, 1961, his and her interests in the proceedings relative to James Donohoe’s claim are identical. Under s. 11 of the Civil Liability Act, 1961, both Josephine Browne and Michael McCabe may be, and in these High Court proceedings are, sued by James Donohoe as concurrent wrongdoers. In the proceedings in the High Court the interests of Michael McCabe and Josephine Browne are identical having regard to the provisions of s. 34, sub-s. 1, and s. 38, sub-s. 3, of the Civil Liability Act, 1961.
The defendants claim that the provisions of s. 29, sub-s. 6 (a) and (b) and s. 37, sub-ss. 1 and 2, of the Civil Liability Act, 1961, apply so as to preclude the plaintiff James Donohoe from proceeding in this action by reason of the judgment of the Circuit Court upon the appeal against the District Court apportionment of blame at 50% as to the defendant Josephine Browne. Section 29, sub-s. 6 (a) and (b) of the Civil Liability Act, 1961, are as follows:
“(a) A decision on the proportion of fault between claimant and contributor on a claim for contribution shall be binding upon the same persons in a subsequent claim in respect of damage suffered by one or both of them arising out of the same facts, and, conversely, such a decision in a claim in respect of such damage shall be binding upon the same persons in a subsequent claim for contribution.
(b) Paragraph (a) of this subsection shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.”
Section 37 of the Civil Liability Act, 1961, is as follows:
“(1). Where a plaintiff has his damages reduced under subsection (1) of section 34 on account of contributory negligence and the defendant subsequently brings an action against the plaintiff in respect of damage arising out of the same facts, the determination of liability and the apportionment of fault in the first action shall be binding between the parties in the second action.
(2). Subsection (1) of this section shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.”
The apparent purpose of these statutory provisions is to apply an estoppel in the nature of res judicata in circumstances of which some might fall short of those in which the courts would apply an estoppel. It became appropriate to introduce such statutory provisions when contributory negligence ceased to disentitle a plaintiff to judgment and a judgment with apportionment of fault and of damages was permitted.
Before dealing with the arguments for the application in relation to these sections of the Civil Liability Act, 1961, it would be helpful to consider first the essential nature of estoppel and the basic elements of res judicata as a ground for estoppel. The much quoted notes to the Duchess of Kingston’s Case in Smith’s Leading Cases 12th edition, Vol. II, beginning at p. 754 state as follows (at p. 767):
“An estoppel, therefore, is an admission, or something which the law treats as equivalent to an admission, of an extremely high and conclusive natureso high and so conclusive, that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”
The comment on that note made by Lush J. in the course of his judgment in Ord v. Ord [1923] 2 K.B. 432 at p. 440 is as follows:
“The litigant must admit that which has been judicially declared to be the truth with regard to the dispute that he raised. In order to see what the fact is that he must admit the truth of one has always to see what is the precise question, the precise fact that has been disputed and decided. This has constantly been stated to be the law.”
An extract from one of the Australian cases cited in argument might be usefully considered at this point. In Ramsay v. Pigram (1968) 118 C.L.R. 271, Barwick C.J. of the High Court of Australia says at p. 276 of that report as follows:
“Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual.”
The defendants in these High Court proceedings by pleading in defence estoppel by judgment recovered seek to show that a precise issue of fact and inference in law therefrom essential to the plaintiffs present claim as against them has previously been determined by the final order of a court of competent jurisdiction which is binding upon the plaintiff and upon the defendants themselves, and that the interest and capacity of the plaintiff in the earlier proceedings was the same as in his High Court action, and likewise that the interest and capacities of the defendants are the same in both proceedings. The precise issue of fact and inference of law therefrom essential to the plaintiff’s present claim as against the defendants is the breach of the duty of care, as alleged, which the law imposes upon the owner and driver of a motor vehicle in a public place involving as a consequence personal injury and expense to the plaintiff.
The plaintiff says that the nature of his personal injuries and the extent of his loss and damage which constitute the harmful consequences of the negligence alleged of the defendant driver and the defendant owner are also essential issues of fact for determination in the present proceedings. Because of the value of the compensation which he believes would be appropriate to the nature of the personal injuries and loss or expense incurred by him, the plaintiff could not have had these considered in the earlier proceedings. He submits that such matters are matters of substance involving issues to which the rule of estoppel does not apply, and to deprive him of a trial upon such issues by the application of a rule of evidence would be an injustice. It was part of the argument advanced, in reply to the defendants’ application, that the damage sustained by the plaintiff is a different cause of action from that the subject of determination in the District and Circuit Courts, namely, the damage to the first defendant’s motor car. It was further argued on behalf of the plaintiff that the parties are not the same in both proceedings as the second defendant was not a party in the lower courts and so cannot invoke the estoppel rule, and the plaintiff’s capacity and interest in these High Court proceedings differs from that which he had in the lower courts.
The authorities cited by Lush J. in his judgment in Ord v. Ord [1923] 2 K.B. 432 support the adoption of the criterion whether the same evidence considered in relation to an issue in the earlier proceedings will be required and relied upon to support a determination upon the same issue between the same parties in the later proceeding”it is whether the same sort of evidence would prove the plaintiff’s case in the two actions”per Brett M.R. in Brunsden v. Humphrey (1884) 14 Q.B.D. 141 at p. 146 and “the application of the rule depends, not upon any technical consideration of the identity of forms of action, but upon matter of substance”per Bowen L.J. in Brunsden v. Humphrey (1884) 14 Q.B.D. 141 at p. 148. An essential element in the application of the rule is that the determination being final, conclusive and binding has the character of an admission by the party against whom it is invoked. The nature of the rule of estoppel is that it is rather a shield on the arm of the defendant than a sword in the hand of the plaintiff. It follows that the mutuality required is that the conclusive determination is binding on both parties in the proceedings in which it is invoked, but not that the estoppel must necessarily fall to be applied simultaneously in relation to each of them. Res judicata is a matter of pleading to prevent as a matter of justice an abuse of the process of the administration of justice. Of its nature it can be raised properly only as against a party by whom or against whom a judgment has been obtained. That is to say the injustice to be avoided is the apparent disclaimer of a binding court order by the party bound by it. If both parties have previously been bound by a final order, repetitious proceedings for the determination of the same issue between them will be barred. A person who was not party to the earlier judgment and whose claim and rights therefore have not been the subject of judicial determination cannot be barred from invoking the process of the court to determine a claim by him for an alleged wrong not previously investigated. “In order to see what the fact is that he must admit the truth of one has always to see what is the precise question, the precise fact that has been disputed and decided”per Lush J., supra.
Because of the special facts in Brunsden v. Humphrey (1884) 14 Q.B.D. 141 that case cannot be relied upon by analogy in aid of the plaintiff in resisting the plea of res judicata in these proceedings. That was a case in which the plaintiff, having sued for damages to his vehicle in the lower court, accepted money lodged in court by the defendant and discontinued that action and commenced further proceedings for personal injuries on the same occasion against the same defendant and was not estopped from doing so. There had been no trial and no evidence heard and no judicial determination of any issue between the parties in the lower court. In the judgments in that case, the purpose of which was to resolve an issue founded upon such facts, there are some observations which could be misleading if unrelated to the facts of the case. In my opinion the fact that a person sustains personal injury and damage to property in the same event does not constitute one or more causes of action for compensation. These harmful consequences of an incident involving another party may be the cause, in the sense only of the motivation, for instituting proceedings. If the personal injuries were attributable to a trespass to the person an action could be maintained whether the injury be negligible or substantialthe cause of action being the wrongful assault or invasion of the person. But if the cause of action is negligence on the part of the defendant a claim will not be entertained unless it be established that injury or damage attributable to the negligence has in fact been sustained and is quantifiable in damages. As stated by Windeyer J. in Hargrave v. Goldman (1963) 110 C.L.R. 40 at p. 63 quoted by Barwick C.J. in Ramsay v. Pigram (1968) 118 C.L.R. 271 cited in argument for the plaintiff:”the concept of a duty of care, as a pre-requisite of liability in negligence, is embedded in our law by compulsive pronouncements of highest authority.”
It follows therefore that although the issue of the fact that personal injury loss or expenses has been sustained is a pre-requisite to a successful claim for damages for negligence, the claim for compensation is not the cause of action. The cause of action is the breach of the duty of care which the law imposes in the relevant circumstances. In an action of that nature there are issues which can be distinguished and separated, but the issue of liability for breach of the duty of care is so fundamental that the issue of compensation and its value does not arise for determination unless and until the breach of the duty of care and its connection as a causative factor with the damage for which compensation is claimed has been established.
In the proceedings in the District Court and the Circuit Court between the plaintiff and the first defendant, issues in relation to damage to person or property, or as to the connection between such and the breach of duty of care alleged, or as to the evaluation of damage for compensation were not contested, enquired into nor determined. The only issues between the parties in those proceedings to which the evidence related and upon which a final determination was obtained were those confined to liability for negligence, that is to say the nature of the duty of care required of each party and the alleged breach thereof. In the absence of any evidence to the contrary upon the application to this court or of any arguments submitted or suggestion to the contrary, I must assume that the only evidence as to the circumstances in which and the manner of the happening of the collision of the two motor vehicles upon which the determination in the Circuit Court was reached was given by the two drivers, the plaintiff James Donohoe and the second defendant Michael McCabe, and any witnesses who investigated the collision afterwards. As Josephine Browne, the first defendant in the High Court action, was plaintiff in the proceedings already concluded, the disputed issue in relation to which she carried the onus of proof was whether James Donohoe, the plaintiff in the High Court, was wanting in the standard of care required by the law in the circumstances existing prior to the collision and was in breach of the duty of care which the law imposed upon a reasonable person in such circumstances towards all persons who were or might reasonably have been expected to be present and involved in those circumstances. Having regard to the provisions of the Civil Liability Act, 1961, such proceedings necessarily involved, if so required by James Donohoe, the defendant, as a further disputed issue the contributory negligence on the part of Josephine Browne by her driver Michael McCabe in relation to which James Donohoe carried the onus of proof. That issue was whether, in the circumstances as they appeared to be to Michael McCabe, including the want of reasonable care on the part of James Donohoe, Michael McCabe was in breach of the duty of care for the safety of himself and the motor vehicle which the law imposes upon a reasonable man in such circumstances. That this latter issue was contested is a necessary inference from the award of an apportioned 50% of the agreed amount of damages. Such an award is equally consistent with a determination of an issue, if such was pleaded by James Donohoe, whether Josephine Browne’s driver, Michael McCabe, was in breach of the duty of care which the law imposed upon a reasonable person towards all road users who might reasonably have been expected to be present and involved in the circumstances regardless of negligence on the part of James Donohoe. As the pleadings in the District Court or Circuit Court were not produced in Court nor referred to on this application I do not know whether James Donohoe alleged that Josephine Browne, by her driver Michael McCabe, was solely responsible in negligence for the collision. The finding of the Circuit Court Judge stated in his order of the 14th March, 1984, is expressed in a manner appropriate to this latter issue and makes no reference to contributory negligence. The Circuit Court Judge’s order says:
“AND THE COURT DOTH FIND that the defendant was negligent and that the plaintiff was not negligent.”
It seems to me, in the absence of any evidence to the contrary, having regard to the fact that the appeal to the Circuit Court was by the plaintiff against an award of an apportioned part only of agreed damages, and having regard to the words used by the Circuit Court Judge to express his finding, that he made his determination on the following issues:
(a) Was James Donohoe the only party entirely liable in negligence for the collision?

(b) Was Josephine Browne by her driver Michael McCabe the only party entirely liable in negligence for the collision?
(c) Was Josephine Browne by her driver Michael McCabe partly liable by contributory negligence for the consequences of James Donohoe’s negligence?
(d) If both drivers were at fault the proportions of blame attributable to each.
It seems to me that each of these precise issues has been necessarily and directly decided in a final and conclusive judgment by a court of competent jurisdiction in the resolving of rights and obligations between all three persons, namely, James Donohoe, Josephine Browne and Michael McCabe. While there may be some doubt as to whether the issue of the liability of Josephine Browne by her driver Michael McCabe concerns negligence to all persons including James Donohoe or is limited to contributory negligence for her own safety, the determination that James Donohoe was solely and entirely liable for the negligence which caused the collision is clear. As between the plaintiff in the High Court action, James Donohoe, and Josephine Browne, the first defendant in that action, the decision on each of the issues determined in the Circuit Court is binding and conclusive and isres judicata.
That there is in law a distinction between the nature of the duty of care, the breach of which is imputed by a plea of contributory negligence, and the duty of care to all road users, imputed in a plea of sole negligence or negligence unqualified, is recognised in the judgments of the High Court of Australia in Jackson v. Goldsmith (1950) 81 C.L.R. 446 cited in argument in this court. I have, in an earlier part of this judgment, stated what I believed to be that distinction. But Jackson v. Goldsmith (1950) 81 C.L.R. 446 decides no more than that in an action by a plaintiff, who was not a participant in the activity giving rise to the allegations of negligence between the defendant and a third party, the third party may not avoid being added in such action merely because he had been exonerated of contributory negligence in a previous successful action by him against the same defendant arising out of the same accident. So far as James Donohoe is concerned in relation to his present claim against Josephine Browne I do not think the distinction between a finding in the Circuit Court of no contributory negligence and a finding of no negligence unqualified is of any significance having regard to the finding of negligence against him.
Section 37 of the Civil Liability Act, 1961, is one of a number of provisions dealing with apportionment of fault in the circumstances of contributory negligence. By virtue of sub-s. 1 of s. 37 the effect of the decision in the District Court proceedings, had it not been appealed, would have been that Josephine Browne would be liable to James Donohoe for 50% of any damages which might later be awarded to him in an action for personal injuries, loss and expense against her. It is clear from that sub-section that in the event of no appeal to the Circuit Court, James Donohoe would not be barred from having recourse to the High Court for the remedy of compensation limited to 50% for his personal injuries loss and expense attributable to negligent driving by Josephine Browne’s driver Michael McCabe on the same occasion as that investigated in the District Court action brought by her against him. But it is equally clear that in any such subsequent action both he and she are bound by “the determination of liability and apportionment of fault in the first action” and are so estopped from claiming otherwise in the later action. But the order and judgment of the District Court was appealed, and the issues of liability and apportionment of fault were reconsidered and revised. The judgment of the Circuit Court on the appeal was confined to the issues of liability and apportionment of fault and, in my opinion, the ruling on these by the learned Circuit Court Judge is conclusive, and by virtue of s. 37 of the Civil Liability Act, 1961, is binding upon James Donohoe for the purposes of his High Court action.
Section 37 of the Civil Liability Act, 1961, is not expressed in terms as creating a bar to proceedings by James Donohoe for a wrong done to him and the harmful consequences in relation to which no evidence has been given and no judgment obtained. But in any such proceedings he is bound by virtue of s. 37 by “the determination of liability and apportionment of fault in the first action.” That determination, by which he is bound, is a decision that the entire liability and blame were apportioned or attributed to him, and it followed that there was no breach of duty of care by Josephine Browne or her driver. Consequently, whatever personal injuries, loss or expense James Donohoe has sustained are not attributable to a wrongful act or tort of the intended defendants. In such circumstances he has no right of recourse to the court and so has no grounds upon which to complain that s. 37 of the Civil Liability Act, 1961, is inconsistent with the Constitution. The sole basis for the argument offered on this hearing to have s. 29, sub-s. 6, and s. 37 declared inconsistent with the Constitution is that they deprive the plaintiff, James Donohoe, of a right of access or recourse to the courts for the remedy of a wrong which he could not obtain in the court in which the liability for the wrong complained of was determined by reason of the limited jurisdiction of that court. But the failure of James Donohoe to have the question of the liability, if any, for the wrong of which he complains determined in a court without limit of jurisdiction was due to the priority of hearing achieved by his opponent. The significance of such priority is demonstrated in Murphy v. Hennessy [1984] I.R. 378 and in Troy v. C.I.E. [1971] I.R. 320, which cases were cited in argument. As James Donohoe has lost the opportunity for recourse to the High Court by the procedural advantage obtained by Josephine Browne, and as it has been determined by
a conclusive judgment binding upon him that he was solely responsible for the event giving rise to his injuries, loss and damage, he is left with no cause of action, and, therefore, no justification for a claim of recourse to the High Court. It is unnecessary, therefore, to consider the arguments advanced to rebut the presumption of constitutionality of the provisions of the Civil Liability Act, 1961.
Section 29 of the Civil Liability Act, 1961, has no application on the facts before this court. That section, including sub-s. 6 thereof, relates to concurrent wrongdoers as defined in s. 11 of the Act in circumstances where one of them claims contribution from another or both must meet a claim by another party. By s. 21 such concurrent wrongdoers are described as claimant and contributor, a description which has no application to any of the parties in this action.
In the result my ruling upon the issue referred to me for hearing in this High Court action is that the plaintiff’s claim is barred by matter res judicataand by s. 37 of the Civil Liability Act, 1961.

Behan v. Bank of Ireland

[2002] IESC 20 (19th March, 2002)
THE SUPREME COURT

Judgment delivered on the 19th day of March, 2002 by Denham J. [Nem Diss.]

1. Motion to High Court

1. The Governor and Company of the Bank of Ireland, the defendant/appellant, hereinafter referred to as ‘the bank’, applied to the High Court for an order striking out the proceedings herein of James J. Behan, the plaintiff/respondent, hereinafter referred to as the ‘plaintiff’, in the absence of any reasonable cause of action, by reason of the action as against the bank herein being frivolous or vexatious, and being res judicata . The motion is brought pursuant to the inherent jurisdiction of this court and/or pursuant to the provisions of Order 19, Rule 28 of the Rules of the Superior Courts. The plaintiff sought an order for judgment in default of defence.

2. Counsel’s note of the decision of the High Court (Kinlen J.), adopted by the learned trial judge, states:

“Following having heard the contentions made on behalf of Esmonde Keane BL, Counsel for the Defendant, and the Plaintiff who appeared in person, and having considered the contents of the Affidavit of Patrick Monahan, Sworn on behalf of the Defendant, dated the 17th of May 2001 and the Affidavit of Niall Browne, sworn on the 29th day of May 2001, His Honour Mr. Justice Kinlen stated that the application made on behalf of the Defendant herein was to strike out the proceedings in the absence of same disclosing any reasonable cause of action and in particular by reason of the action brought against the Defendant herein, being res judicata . His Honour Mr. Justice Kinlen stated that Mr. Browne in his Affidavit had stated that the matter relating to the credit obtained by the Defendant had only come to light after a number of days into the hearing of the matter before the High Court. The issue, accordingly, only came to light in that case and has only recently been launched in the proceedings herein. Accordingly, His Honour Mr. Justice Kinlen determined to dismiss the application and granted the Defendant the costs of attending before the High Court to argue same. In relation to the Plaintiff’s Motion for Judgment in Default of Defence, three weeks was allowed to the Defendant for the filing of its Defence and reserved costs of that motion to trial judge.”

 

3. Appeal

2. Against that decision of the High Court the bank has appealed. The grounds of appeal, as they appear on the Notice of Appeal, are as follows:-

“1. That the learned High Court Judge erred both in law and in fact in holding that the Pleadings herein disclosed any reasonable cause of action.

2. That the learned High Court Judge erred both in law and in fact in holding that any cause of action in the pleadings herein was not res judicata.

3. That the learned High Court Judge erred in law in holding that the inclusion of the issue (relating to the claim by the Plaintiff arising out of the receipt by the Defendant of credit of the farm rescue package) following the commencement of the hearing before the High Court in the proceedings between the parties herein entitled “the High Court, 1990, No. 9665P, Between : James J. Behan Plaintiff and The Governor and Company of the Bank of Ireland, Defendant” (hereinafter referred to as “the earlier proceedings”), accompanied as it was by the granting of liberty to amend the Statement of Claim and the subsequent amendment of same (including general and consequential damages arising from same) and further hearing the Judgement (sic) concerning same in the earlier proceedings, prevented the said issue and the other issues herein from being res judicata .

4. That the learned High Court Judge erred both in law and in fact in holding that there are any new issues disclosed in the present proceedings which have not already been determined upon in the earlier proceedings.

5. That the learned High Court Judge erred both in law and in fact in failing to hold that the action as shown by the Plaintiff’s Pleadings herein was not frivolous or vexatious as against the Defendant herein.

6. That the learned High Court Judge erred both in law and in fact in failing to dismiss the proceedings and/or in failing to strike out the Pleadings herein.

7. That the learned High Court Judge erred both in law and in fact in holding that there is any issue disclosed in the current proceedings that is not res judicata by reason of the decision in the earlier proceedings.”

 

4. Submissions

3. Full submissions were made on behalf of both the parties. Oral submissions were made on behalf of the bank by Mr. Daniel O’Keefe, S.C. and the plaintiff himself made submissions.

4. Counsel for the bank submitted that the proceedings should be struck out on the grounds that no reasonable cause of action was disclosed, that the proceedings were vexatious and that the matters were res judicata . Counsel also requested the court to apply the principle of estoppel.

5. Mr. Behan submitted, inter alia that there had been probable fraud by the bank related to the concealment of their use of the farm scheme money. He argued that the fraud had been concealed by the bank, that the bank had misled him. He referred to the judgment of

Barron J. in James Behan v Governor and Company of the Bank of Ireland , (Unreported, Supreme Court, 20th July, 1998). Mr. Behan submitted that he was pleading fraud in this case. Further, he submitted, the consequences had not been dealt with by Morris J. previously.
5. Facts

6. The original case of the plaintiff commenced by summons dated 5th July, 1990. That case was 18 days at hearing before the High Court. There was a very detailed Statement of Claim. The Statement of Claim was amended with permission of the trial judge, in mid-trial.

6. The amended Statement of Claim was as follows:

“Amendment to Statement of Claim:

a) Pursuant to the Order of the Learned Trial Judge Mr. Justice Morris, the Statement of Claim is hereby amended by the inclusion of paragraphs P.Q.R.S. and in the Particulars of Negligence, Breach of Duty, and Breach of Contract.

b) That the Defendant failed to enter the Plaintiff in the Farm Rescue Package Scheme at a time or at all when money under the Scheme could have been used to his advantage.

c) In failing to credit the Plaintiff’s account with money payable under the Reduced Interest Subsidy Scheme on due dates the Plaintiff was deprived of interest and obliged to pay interest at full prevailing Bank rates on the whole of his borrowings over the entire period at compound interest which considerably reduced his working capital.

d) Despite his being approved for the Scheme the Plaintiff’s account was never credited with any subsidy in the relevant period 1st April, 1982, to 31st March, 1985 and the Defendant having called in the debt in April, 1985, effectively excluded him from achieving any benefit from the Scheme.

e) That the Defendant in drawing down the entire amount due to the Plaintiff under the said Scheme on 30th September, 1985, which was the last day when the Scheme was in operation for his purposes and converting that amount to its own use and benefit deprived the Plaintiff of its use.

f) That the Defendant in relation to the Plaintiff did not use the said Scheme for the purpose for which it was intended.”

 

 

7. The High Court (Morris J.) delivered a reserved judgment on the 15th day of August, 1997. The learned trial judge dealt specifically with the Reduced Interest Subsidy Scheme for Farmers in Severe Financial Distress. Of this scheme Morris J. stated:

“It remains now to consider the claim that arises under the introduction of the ‘Reduced Interest Scheme for Farmers in Severe Financial Distress’, (referred to as ‘the scheme’).

7. This scheme was introduced by the Minister for Agriculture on the 1st April, 1982. The scheme had as its objective the provision of some relief from high interest rates for certain classes of farmers. It is, in my view, unnecessary to set out in detail the conditions of the scheme. All that is required is that it be understood that the scheme provided that a beneficial rate of interest would be enjoyed by certain types of farmers on certain bank borrowings. The interest rate on the relevant loans was reduced by 8 ¾% providing that in no circumstances would the rate to a farmer go below 10 ½%. The scheme operated for 3 years from the 1st April, 1982. The scheme was operated by banking institutions and the ACC. Mr. Behan completed the appropriate forms for inclusion in the scheme on the 28th May, 1982. However, the admission into the scheme depended, inter alia, upon obtaining a Farm Viability Plan which Mr. Behan obtained from ACOT on the 28th July, 1983. On the 17th January, 1984 authority was given by the Bank of Ireland to the Carlow Branch to ‘draw down’ on Mr. Behan’s account.

8. The case is made on Mr. Behan’s behalf that there was unreasonable and improper delay on the part of the bank in permitting Mr. Behan to enter and enjoy the benefits of the scheme.

9. In my view, entry into the scheme was not available to Mr. Behan until he had obtained the Farm Viability Plan and it appears to me that the matter was processed with all due diligence up to the 17th January, 1984. However, thereafter I am of the view that the bank acted in an arbitrary and improper manner. I am satisfied from the evidence that one had the position that on the one hand the bank were adopting the attitude towards Mr. Behan which deprived him of further finances with which to run his farming business and yet on the other hand were critical of him when he devised alternative methods of obtaining finance as, for instance, by opening an account with the AIB. The bank were using Mr. Behan’s lack of resources as a reason for depriving him of the benefits of inclusion in the scheme. I am satisfied that the bank were attempting to achieve benefits for themselves by depriving or withholding Mr. Behan’s entry into the scheme. From a practical point of view, Mr. Behan was never entered into the scheme in the sense that he never received the benefit of the favourable interest rates. On the 30th September, 1985 the outstanding elements of the scheme were being wound-up. What occurred at this stage was that the bank, notwithstanding that Mr. Behan had entered into an agreement on the 22nd July, 1985 whereby he agreed to pay and the bank agreed to accept £165,000 in full and final settlement, entered the three credits to which he was entitled under the scheme, namely £6,466.35, £6,023.15 and £5,965.68 as credits on his account and on the closure of the account on the 1st April, 1986 applied these amounts towards a reduction of his indebtedness to the Bank. It is clear that having made the agreement to accept the reduced amount, the bank were not entitled to apply these monies in the manner in which they did. Moreover on the winding up of the scheme the bank would have been credited by the Revenue Commissioners with an equivalent amount against its corporation tax liabilities.

10. I am of the view that Mr. Behan is entitled to receive these amounts as money had and received to his use. They total, on my calculation, £18,455.18.

11. The question arises as to whether Mr. Behan suffered any consequential loss as a result of the bank’s failure to include him in the scheme. No evidence has been offered to me to support any such claim and I accept the evidence of Mr. Laurence Power that given the amount of Mr. Behan’s indebtedness at the relevant time the relief which he would have obtained from immediate admission into the scheme was of no overall consequence.

12. He is, in addition to the foregoing sum, entitled to interest thereon. In this regard I accept Mr. Devlin’s evidence that the amount of interest of which he was deprived was £2,437, making a total claim of £20,892.18.

13. During the course of Mr. Devlin’s evidence he referred to the fact that he was unable to identify the rate of interest at which the bank were making their calculations and he concluded that two different rates of interest were necessary if the figures were to be found correct. I do not think that this gives rise to any element of claim.

14. Accordingly, there will be Judgment for the Plaintiff in the above amount and I will hear Counsel as to the question of costs.”

 

8. The order and decision of Morris J. was appealed to the Supreme Court. The Supreme Court heard the appeal by the plaintiff and cross appeal by the bank over two days on 25th and 26th March, 1998 and reserved judgment. On 20th July, 1998 it was ordered that the plaintiff’s appeal be dismissed, that the defendant’s cross appeal be allowed in regard to the Statute of Limitations point and dismissed in regard to the award of £20,892.18 and the High Court order was varied accordingly. It was ordered in relation to costs that the plaintiff do recover from the bank the costs of three days in the High Court and that the bank do recover

from the plaintiff the costs of ten days in the High Court all when taxed and ascertained and that no order be made as to costs for five days. It was ordered that the sum payable by the plaintiff for costs be set off against the sum payable by the bank for the award of £20,892.18 and costs and that the party to whom the excess (if any) shall be due be at liberty to issue execution against the party to whom such excess shall be due. No order was made as to costs in the Supreme Court.

9. In a minority judgment Keane J. agreed with the conclusion of the trial judge that an arrangement of the sort relied on by the plaintiff as having been entered into at the meeting in May, 1981 was so vague and uncertain in its terms as to be incapable of enforcement as a legal contract. However, he then went on to analyse the scheme, which he did in considerable detail. Keane J. did not agree with the trial judge, he stated:

“I fear I cannot agree. The reason the plaintiff was not admitted to the farm rescue scheme was because he failed to comply with the conditions for entry, including the production of an acceptable farm viability plan. However, altogether apart from that consideration, there is no question of monies having been paid to the bank to which the plaintiff was entitled. The entry by the bank in their books of the three sums totalling £18,455.18 represented in arithmetical terms the difference between the commercial rate payable by the plaintiff and the reduced interest rate payable on the farm rescue loan. A corresponding debit appeared in an internal bank suspense account. No money was paid by any third party to the bank to the benefit of which the plaintiff was entitled and which was wrongfully withheld from him by the bank.

Had the plaintiff discharged his total liabilities to the bank, he would have paid the sum of £213,891.43 and – assuming that he had met the other conditions for eligibility – would have been entitled to be refunded by the bank the sum of £18,455.18 because of his participation in the farm rescue scheme. Nothing of the sort happened. The proposition that a debtor who owes the sum of £48,891.43 has suffered a wrong because his unpaid creditor hopes to recoup part of the sum – £18,455.18 – from a third party is wholly unsustainable in law or, for that matter, in simple equity.

 

No doubt the bank hoped to satisfy the revenue that, since they would clearly have been entitled to set off the £18,455.18 against their liability to corporation tax in the event of the plaintiff having met all his outstanding liabilities to them, they should hardly be in any worse position where, on the contrary, he ended up owing them £48,891.43. However, neither the High Court nor this court was or is concerned in any way with the rights inter se of the bank and the Revenue Commissioners.

Counsel for the bank also submitted that this part of the plaintiff’s claim was in any event statute barred, since it did not appear in the plenary summons or statement of claim: the trial judge allowed an amendment of the statement of claim during the course of the trial on the ground that, as claimed on behalf of the plaintiff, he or his legal advisers had not been fully aware of the manner in which the interest refunds had been dealt with at the time the proceedings were issued. It was urged that the trial judge’s discretion to allow amendments to the pleadings could not be exercised in such a way as to deprive a defendant of a defence which would otherwise be open to him under the Statute of Limitations 1957.

In the judgment which he is about to deliver, Barron J. refers to a number of English decisions to the effect that a defendant may be deprived of a defence which would otherwise be open to him under the Statute of Limitations 1957 where his conduct was ‘unconscionable’ or ‘inequitable’. On the view I take of the plaintiff’s claim, those authorities are of no relevance. I would in any event express no opinion on whether they correctly state the law or their applicability to the facts in the present case, since they were not cited at any stage by counsel for the plaintiff and counsel for the bank had no opportunity of dealing with them.”

 

10. Barron J. agreed with Keane J. that the appeal of the plaintiff should be dismissed. In a written judgment, Barron J. set out his different reasons for dismissing the plaintiff’s appeal. O’Flaherty J. agreed with Barron J.

15. Barron J. stated:

“I agree with the judgment of Keane J. that the appeal of the plaintiff should be dismissed.

It is unfortunate that the learned trial judge was mistaken as to the document which showed through the copy of the farm loan analysis. As a result, he did not accept the evidence adduced on behalf of the plaintiff.

 

However, an analysis of this evidence on the basis that it is accepted in full does not support a case entitling the plaintiff to damages.

The plaintiff’s case lay both in contract and in tort. The farm loan analysis is significant in relation to the claim for damages for negligent advice. It supports the allegation of a representation that the Bank thought highly of the plaintiff and by inference would be prepared to back him financially through the bad days. But even upon that representation, there is nothing to suggest that the final decision was not to be that of the plaintiff himself.

In relation to the claim in contract, there is nothing in the evidence to suggest that any discussion in relation to detail which would have been expected to have taken place did take place nor were the terms alleged of sufficient precision to found an agreement.

Of equal difficulty for the plaintiff was the delay in bringing proceedings. It was clear from an early date and well before the six-year period prior to the issue of proceedings that not only was the advice of the Bank poor but that it was not abiding by its obligations towards the plaintiff. Admittedly, customers of banks are in different positions from many debtors in that by contesting a claim against the Bank they may find themselves without the finance necessary to pursue their commercial interests. That may have been the case in 1983 when it was clear that the Bank did not consider itself bound by any agreement. But once the settlement was reached in 1985, there was no longer any such impediment.

As regards the plaintiff’s case that in July 1985 cheques were dishonoured in breach of a specific and temporary arrangement for an overdraft, there was no evidence adduced that the dates of dishonour were within the statutory limitation period. Counsel asserted this fact and subsequently indicated to a specific portion of the transcript of evidence. That however also was an assertion by counsel in the course of submissions to the learned trial judge. Accordingly, there remains no evidence to establish the dates of dishonour.

In relation to the defendant’s cross-appeal, it seems to me that the following is an appropriate analysis of the relevant facts.

1. In 1995, the plaintiff’s total indebtedness to the Bank stood at the sum of £215,000 approximately. An agreement was arrived at whereby the Bank would accept £165,000 in full satisfaction to be paid in unequal instalments.

2. At the time that that agreement was entered into the Bank maintained, as it was entitled to do, that the plaintiff, though eligible for the farm rescue package, was not entitled to its benefit.

Accordingly, the debt of £215,000 approximately did not take into account the benefit which would have accrued to the plaintiff if he had been so entitled.

3. The agreement was concluded on this basis. The Bank however did so on the understanding, not communicated to the plaintiff, that it could obtain the fiscal advantage associated with the allowance of the benefit to the scheme to a customer.

4. Accordingly, the Bank subsequently made various bookkeeping entries not communicated to the plaintiff as a result of which an account of the plaintiff with the Bank was credited with the benefit of the farm rescue package. This amounted to the sum of £18,000 approximately.
5. That sum was not paid to the plaintiff but taken against the unsatisfied liabilities of the plaintiff which by the agreement had amounted to some £50,000 thereby reducing them to some £30,000.

6. The fact of the payment by the Bank to the plaintiff of a sum of £18,000 approximately in accordance with the provisions of the farm rescue package was returned to the Revenue so as to obtain a fiscal advantage upon which the scheme was based.

7. Until the hearing of this case was several days at hearing, the plaintiff was unaware that his account had been dealt with in the manner indicated.

It is the legal effect of these facts which is in issue. The Bank submits that it was a bookkeeping transaction and no more. I do not accept this submission. At the date of the crediting of the plaintiff’s account, the relationship between the plaintiff and the Bank was governed by an agreement entered into two months before. This was silent on the issue of the farm rescue package.

Prima facie therefore the Bank by crediting the benefit of the scheme to the plaintiff’s account acknowledge the plaintiff’s right to that sum. By seeking the fiscal advantage, the Bank represented to the Revenue that the sum of £18,000 approximately had been paid to the plaintiff.

Clearly, the Bank did not intend that this should be paid to the plaintiff. The plaintiff has no merits to receive this sum since he settled with the Bank in full knowledge that he was not getting the benefit of the farm rescue package. But neither did he think that the Bank was in effect writing off less than it appeared to be doing.

In the final analysis, it seems to me that the legal position must be that the Bank having credited the plaintiff’s account at a time when the plaintiff’s liability to the Bank had been agreed is now estopped from saying that it was entitled to recoup itself of that amount because a larger sum owed by the plaintiff to the Bank was waived in the course of previous settlement negotiations. I would hold the Bank estopped from making any such claim.

It is submitted that in any event this claim is barred by the provisions of the Statute of Limitations, 1957. The answer to that, if there is an answer, lies in the provisions of s. 71(1)(b) of the same Act.

The provision is as follows:

‘(1) Where, in the case of an action for which a period of limitation is fixed by this Act,
(b) the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it’

16. The identical provisions in the English Act – s.26(a) and (b) of Limitation Act, 1939 – was considered in Beaman v A.R.T.S. Limited 1949 1 All ER p. 465”

 

17. Barron J. then considered a number of decisions of England and Wales concluding:

“Accordingly, in my view a defence of the Statute of Limitations would not avail the defendant.
I would accordingly affirm the judgment of the learned President on this issue.”

11. The statement of claim of the plaintiff in this action was delivered on 30th March, 2001. I am satisfied that it is essentially the same as the amended statement of claim in the plaintiff’s previous action. This can be illustrated by the particulars of special damages/losses claimed.

12. In the Statement of Claim delivered on 6th day of November, 1995 it is claimed:

“PARTICULARS OF SPECIAL DAMAGES/LOSSES

1. Estimated Loss of Lands at Dollardstown and
18. Grangerosnolvin: £960,000.00

2. Estimated Loss of Profits: £770,000.00
3. Estimated Loss of Mill and Profits: £200,000.00
4. Interest charged by the Defendant on
money borrowed: £440,000.00
5. Estimated Aggregate of total sums borrowed
from the Defendant: £200,000.00
6. Estimated Other Losses: £290,000.00
TOTAL ESTIMATED: £2.860,000.00”

 

13. In the Statement of Claim delivered on 30th March, 2001 in this, the second action of the plaintiff, the claim as to special damage and losses is:

19. Estimated loss of lands at Dollardstown and Grangerosnolvin IR£2,530,000

20. Estimated loss of profit 8 years @ £10,000 IR£ 80,000

11 years @ £15,000 IR£ 165,000
21. Interest on loss of profits @ 10% 19 years IR£ 465,500

22. Loss of Mill and Milling Business IR£ 200,000

23. Loss of machinery and equipment IR£ 200,000

24. Damage to farm buildings IR£ 50,000

25. Damage and neglect to domestic dwelling IR£ 50,000

26. Sale of furniture and antiques from home IR£ 40,000

TOTAL: IR£ 3,780,500

14. It is clear that the claim in this case is similar to the claim heard and determined before Morris J. It is quite clear that the scheme was at issue in that case and that a determination was made in relation to it in the High Court and Supreme Court, previously.

15. The issues have been litigated already. Morris J. took care to include the issues raised by the plaintiff. The fact that all the evidence the plaintiff would now wish to present to the court was not presented then does not mean that the matter can be reopened. This is not closing out the applicant on a technical point. It is clear that the consequences were the same, whether they flowed from alleged fraud or alleged negligence. The issue of the consequences was before Morris J.

16. The High Court erred in determining that the matter was not res judicata . The issue of the scheme was litigated previously by the parties. Further, the consequences for the Applicant were the same whether being considered under an allegation of negligence or fraud. The damages were the same.

17. The proceedings are res judicata , the issues have been determined. Once, as here, substantially the same cause of action has been determined the matter is res judicata : White v Spendlove [1942] IR 224. The point has been litigated: D v C [1994] ILRM 173. The applicant is attempting to relitigate the issue which has already been determined against him: McCauley v McDermot [1997] 2 ILRM 486.

 

18. It is impossible not to have sympathy at a personal level for the plaintiff. He spoke to the court of the plan drawn up by ACOT on his behalf – that it was a viable plan – that it was accepted. That money was paid to the bank. That the bank had given him the impression that he was not in the scheme and when he sold out monies were paid to the bank. The plaintiff has a strong sense of grievance against the bank, he spoke of his success in developing farm related projects. However, sympathy is not sufficient to ground success for the plaintiff’s case.

19. Whilst I can understand the plaintiff’s wish to continue to pursue the bank he may not do so in law. Whilst it may be of concern that monies were given so freely to him in circumstances that are of doubtful economic merit (as originally done by the bank) the issues have already been litigated. The plaintiff may not reopen the matter. There must be finality in litigation.

20. I would allow the appeal and strike out the plaintiff’s proceedings.

 

City of Dublin v. Building and Allied Trade Union

 

THE RIGHT HONOURABLE THE LORD MAYOR,
ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN

Plaintiffs/Respondents

and

 

BUILDING AND ALLIED TRADE UNION AND ITS TRUSTEES,
FOLEY, F HOSFORD, D GRAY, J LYONS AND L O�BRIEN

Defendants/Appellants

 

Judgement of the Supreme Court delivered on 24th day of July, 1996 by Keane J

 

In 1982 the plaintiffs/respondents (whom I shall refer to as �the corporation�) acting in its capacity as road authority decided to widen Cuffe Street. To that end, they made a compulsory purchase order which was duly confirmed by the Minister for the Environment on 2 September 1983. One of the properties affected by the order was a building known as the Bricklayers� Hall which was owned by the defendants/appellants (whom I shall refer to as �the union�) who were then described as �the Ancient Guild of Incorporated Brick and Stonelayers�. The front facade of the building was, appropriately enough, a fine example of the stonemasons� and bricklayers� craft.

At an arbitration conducted by Mr Sean M McDermot, the duly nominated property arbitrator, to determine the amount of compensation to be paid to the union, its secretary, Mr Kevin Duffy, gave evidence on oath that:

(a) the Bricklayers� Hall was an integral part of the union�s activity,

(b) the union was unlikely to be in a position to rent similar premises with the same facilities, and

(c) it was the intention of the union to rebuild the Bricklayers� Hall and to reinstate the facade.

Two alternative bases for the assessment of the compensation to be paid to the union were presented to the arbitrator. The first was on the basis that the corporation acquired the entire building, and not merely the front portion required for road widening, and sold or similarly disposed of the remainder to recoup their expenditure. The second was on the basis that the corporation only acquired so much of the property as was needed for road widening, thereby enabling the union to reinstate the building, complete with facade, on the reduced site.

Prior to the arbitration the corporation and the union, acting through their professional advisers, sensibly agreed the sums that would be payable, depending on which basis the compensation was to be assessed. Under the first method, it was £87,857. Under the second, it was £224,414. The arbitrator, having heard the evidence, issued his award on 27 May 1985 and awarded the union the latter sum, together with the costs and expenses of preparing and submitting its claim and the costs and expenses of and incidental to the reference to arbitration. By a conveyance of 30 December 1985, the portion of the site the subject of the compulsory purchase order was conveyed to the corporation by the union in consideration of the sum of £224,414 paid to the union.

Following the award and prior to that conveyance, most of the Bricklayers� Hall was demolished by the union and since then no attempt has been made to rebuild the buildings, including the facade, on the site which it retained.

The corporation thereupon instituted the present proceedings, in which it claims:

(a) a declaration that the union holds the sum of £224,414 in trust for the reconstruction of the Bricklayers� Hall and the reinstatement of the front facade;

(b) a mandatory injunction requiring the union to apply the money in the reconstruction of the Bricklayers� Hall and the reinstatement of the facade;

(c) payment by the union to the corporation of the sum of £136,557 (the difference between the two agreed sums) together with appropriate interest, as being an amount by which the union has been allegedly unjustly enriched.

The relief sought in paragraph (c) was obviously sought as an alternative to the reliefs claimed in the preceding paragraphs to provide for the contingency that the union might have put it out of its power to reinstate the building by disposing of the cleared site.

A defence was delivered on behalf of the union in which it was pleaded that the statement of claim disclosed no cause of action and that the corporation were in any event estopped by the doctrine of res judicata from making the claim. It also denied that the union was under any duty to the corporation to reconstruct the Bricklayers Hall or reinstate the facade, that the sum of £224,414 was held by it on any trust for the corporation or otherwise and that it had been unjustly enriched.

The case was at hearing in the High Court for eight days. Most of the hearing, was, however, taken up by legal submissions; the facts, as already summarised in this judgment, were not in dispute. Evidence was given on behalf of the corporation by Mr John Faley, a valuer, Mr Eugene Farrelly, a quantity surveyor, Mr Charles Clancy, an architect and Mr Michael Reynolds, an architect and town planner. No evidence was given on behalf of the union.

In a lengthy judgment, Budd J concluded that the claim of the corporation was well founded and that it was entitled to be paid the sum of £158,957 by the union. From that judgment, the union have now appealed to this Court.

On behalf of the union, Mr Patrick Keane SC submitted that the proceedings were an undisguised attack on the finality of the award in the arbitration proceedings. He said that the High Court had been invited, in effect, to consider the award of the property arbitrator in the light of changed circumstances and reassess the compensation which he had awarded. He further submitted that the union was under no legal obligation to reinstate the building and there was no evidence to support the case made, implicitly if not expressly, on behalf of the corporation that it had in some sense acted in bad faith. There was no allegation that the award of the arbitrator had been procured by fraud and, in those circumstances, the union was entitled as a matter of law to the sums paid to it on foot of the award.

Mr Keane further submitted that there was no evidence of any representation by the union to the corporation or any commitment on its behalf that the building would be reinstated. The agreement entered into between the professional advisers to the corporation and to the union as to the cost of reinstatement was no more than that; it was in no sense an undertaking on behalf of the union that, in the event of being awarded compensation on that basis, it would carry out the work in question. There was also no evidence, he said, to support the corporation�s contention that the corporation paid over the amount of the award as a result of �a mistake of fact�. He said there was no evidence to support the contention that, as of December 1985 when the existing building was allegedly demolished, the union had changed its mind. Those facts, even if proved, which, he said, they were not, only supported an inference that the union did not propose to proceed with the reinstatement in the precise terms of the plans which formed the basis of agreement as to the amount of the compensation.

In a further elaboration of his submission that the corporation were precluded by the doctrine of res judicata from pursuing its claim, Mr Keane submitted that, insofar as the decision in Moses v. Macferlan (1760) 2 Burr 1005 was authority for the proposition that a final judgment of a court or tribunal of competent jurisdiction could be reopened where it appeared to another court unjust and inequitable, it had been strongly criticised and should not be followed by this Court. He relied in this context on the decision of Eyre CJ in Phillips v. Hunter (1795) 2 H Bl 402 and the statement of the law in Goff & Jones on The Law of Restitution, 4th ed, at pp 763-4.

Mr Keane further submitted that, if the legislature had intended that monies paid on foot of an award made in accordance with the relevant statutory provisions could be recovered by the acquiring authority in circumstances such as the present, they could have so provided but had chosen not to do so.

On behalf of the corporation, Mr Eoghan Fitzsimons SC submitted that the proceedings instituted by the corporation were not in any sense an attempt to reopen the arbitrator�s award. He said that the corporation accepted that it was bound by the arbitrator�s finding that, at the date of the hearing before him, the union bona fide intended to reinstate the building. Nor was it suggested on their behalf that the union was precluded from subsequently changing its mind, as it obviously had, in declining to proceed with the reinstatement. He submitted, however, that it was unconscionable for the union to change its mind and retain the compensation which it had been awarded on the basis of reinstatement. He submitted that the doctrine of unjust enrichment had been firmly established in Irish law, at least since the decision in East Cork Foods Ltd v. O�Dwyer Steel Co Ltd [1978] IR 103, and that all the requirements for its invocation in the present case were met. The corporation had not simply asserted that the unarguable enrichment of the union was �unjust� in any loose or imprecise sense; it relied on the specific circumstances of the present case as rendering the enrichment unjust.

Mr Fitzsimons submitted that the circumstances in the present case which rendered the enrichment unjust were the unqualified representation at the arbitration that the building would be reinstated, the effective demolition, within a few months of the publication of the award, of the building, putting it out of the power of the union to reinstate the building in accordance with the plans furnished to the corporation and the failure of the union to give any evidence at the hearing in the High Court as to why it had changed its mind. He submitted that, since the trial judge had given it every opportunity of adducing evidence, it was reasonable to infer that the reasons for its change of mind were such as to render its retention of the money inequitable.

Mr Fitzsimons submitted that in these circumstances the corporation were clearly entitled to the repayment by the union of such an amount as would undo the unjust enrichment which had occurred. Alternatively, Mr Fitzsimons submitted that the monies paid on foot of the award were impressed with a constructive trust, citing in support the much quoted words of Cardozo J in Beatty v. Guggenheim Exploration Co (1919) 225 NY 380 at p 386 that:

“A constructive trust is the formula through which the conscience of equity finds expression.”

In considering these submissions, I should at the outset refer to the statutory provisions applicable to the payment of the sum of £224,414 to the union.

S 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 (hereinafter �the 1919 Act�) which, it was accepted, applies to this as it does to many other forms of compulsory purchase, provides (as amended) that:

“In assessing compensation, a property arbitrator shall act in accordance with the following rules …

(2) The value of land shall, subject as hereinafter provided be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise: Provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant.

(5) Where land is, and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the property arbitrator is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement.”

S 6, as amended, provides that:

“(1) The decision of a property arbitrator upon any question of fact, shall be final and binding on the parties, and the persons claiming under them respectively, but the property arbitrator may, and shall, if the High Court so directs, state at any stage of the proceedings, in the form of a special case for the opinion of the High Court, any question of law arising in the course of the proceedings, and may state his award as to the whole or part thereof in the form of a special case for the opinion of the High Court.”

S 41 of the Arbitration Act 1954 provides that:

“An award on an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order to the same effect and, where leave is so given, judgment may be entered in terms of the award.”

S 27 of the same Act provides that:

“Unless a contrary intention is expressed therein, every arbitration agreement shall, where such a provision is applicable to the reference, be deemed to contain a provision that the award to be made by the arbitrator or umpire shall be final and binding on the parties and the persons claiming under them respectively.”

Both of these provisions are applicable to arbitrations under the 1919 Act except to the extent that Part II of the 1954 Act is inconsistent therewith.

The compulsory purchase procedure under which the corporation acquired the land in question from the union is different in almost every respect from a purchase by agreement. Although rule (2) provides for the assessment of compensation on the basis of the value of the land on the open market, some of the other rules, and the manner in which they have been judicially construed, make it clear that the assessment of compensation is more in the nature of an award of damages for the expropriation of his property against the wishes of the owner. Although the acquisition is effected in the public interest, both parliament and the courts have been at pains to ensure that the award of compensation reflects, not merely a price that might have been agreed by a willing vendor and purchaser, but also all the elements of loss suffered by someone dispossessed of land against his will.

Hence, the provision in rule (5) for the assessment of compensation on �the reasonable cost of equivalent reinstatement� where that is appropriate. Where the arbitrator is satisfied that the owner bona fide intends to reinstate the building, be it a church, a museum or whatever, on some other site, the extent of his loss will not necessarily be reflected in the open market value of the land, since he will be unlikely to find a purchaser who will be prepared to pay him that sum if it happens to exceed the market value.

The �equivalent reinstatement� basis of compensation thus provides the machinery, in cases where it is appropriate, of compensating the owner of the property in full in circumstances where he would not be fully compensated by being awarded the open market value. I emphasise this aspect of rule (5), because the learned High Court judge at a number of points in his judgment appears to treat the corporation as having acquired, in consideration of the payment of the compensation, a benefit in the form of the preservation of the facade of the building. That approach, however, overlooks the fact that the acquisition was not being effected by the corporation in its capacity as a planning authority and the question as to whether or not, in that capacity, it would have stipulated the preservation of the facade was irrelevant to the amount of compensation which it was required to pay arising out of its acquisition of the land in question as a road authority.

It is accepted by the corporation that the award in this case was final and binding on both itself and the union. The doctrine of res judicata applicable to this, as to every final judgment or award of any competent court or tribunal, has the consequence that the parties are estopped between themselves from litigating the issues determined by the award again. The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved � the anxiety, the delays, the costs, the public and painful nature of the process � there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.

That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the court been in possession of evidence not available at the hearing is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.

These principles apply with even greater force to an award under the 1919 Act. Not merely is a disappointed claimant precluded from reopening the award should he find that there was evidence which he could have brought before the arbitrator which would have resulted in a far higher level of compensation: he has not even the opportunity, available to those claiming damages arising out of civil wrongs as opposed to a statutory expropriation, of having the findings at first instance tested on appeal.

It is claimed, however, on behalf of the corporation that, in the case of assessments carried out under rule (5), that finality is significantly abridged. It is conceded, and inevitably so, that had the union elected to give evidence which demonstrated, that, owing to circumstances unforeseen by it at the time of the arbitration, it was no longer possible for it to reinstate the building and that the costs of acquiring suitable premises elsewhere would in any event exhaust the award, no question of �unjust enrichment� would arise. It is quite right in submitting that, given the remarkable alacrity with which the union proceeded to demolish the building, it is singularly unlikely that the union would have been in the position to give any such evidence. But the general principle for which it contends cannot be solely tested by reference to the facts of the present case. A claimant who, without any element of fraud, is awarded compensation on the basis of equivalent reinstatement is either entitled to treat the litigation as at an end or he is not. If he can be called to account for his conduct in not reinstating the building at some indeterminate stage in the future, then, however else the award in his favour may be described, it is certainly not final in any meaningful sense. Thus, if the case made on behalf of the corporation is well founded, a body which has given evidence in good faith to the arbitrator that it intends to reinstate the building on another site and which subsequently discovers that, because of difficulties arising from planning constraints, problems of title, the effect on neighbouring properties or a myriad of other considerations, reinstatement is impossible and which also finds that the money awarded will do no more than cover the acquisition of another building, may legitimately be subjected to all the hazards of a further court action at some stage in the future. It will be in vain for it to plead res judicata: on proof by the acquiring authority that it has not in fact reinstated the building, it will be compelled to adduce evidence as to the reasons why it has not done so.

It is necessary to emphasise again that there is nothing to suggest that such were the circumstances in the present case, but the question as to whether the award is in every sense final or is merely final in a qualified sense cannot be determined solely by reference to the facts of one case. That would be a classic instance of hard cases making bad law. It must be determined as a matter of legal principle.

It also follows inevitably from the submissions on behalf of the corporation that s 6(1) of the 1919 Act must be read as though it were subject to a proviso that, in the event of the compensation having been assessed by reference to rule (5), and the equivalent reinstatement not having been thereafter effected, the owner must refund to the acquiring authority such proportion of the compensation as a court of competent jurisdiction deems to be just and equitable. It is of interest to note that in the Local Government (Planning and Development) Act 1963 (which itself, in the Fourth Schedule, introduced additional rules to those contained in the 1919 Act) a provision of such a nature was expressly enacted to deal with certain cases where an owner of property suffers loss as a result of a decision involving a refusal of planning permission or a grant of such permission subject to conditions. S 73(1) provides that no person is to carry out any development to which that section applies on land in respect of which an award of compensation has been registered at any time during the succeeding fourteen years without making an appropriate repayment to the planning authority.

These consequences � the qualified application of the res judicata principle and the amendment by implication of the 1919 Act � are, it is submitted, necessitated by what is said to be the application of the concept of unjust enrichment to the facts of the present case.

It is clear that, under our law, a person can in certain circumstances be obliged to effect restitution of money or other property to another where it would be unjust for him to retain the property. Moreover, as Henchy J noted in East Cork Foods Ltd v. O�Dwyer Steel Co Ltd, this principle no longer rests on the fiction of an implied promise to return the property which, in the days when the forms of action still ruled English law, led to its tortuous rationalisation as being �quasi-contractual� in nature.

The modern authorities in this and other common law jurisdictions, of which Murphy v. Attorney General [1982] IR 241 is a leading Irish example have demonstrated that unjust enrichment exists as a distinctive legal concept, separate from both contract and tort, which in the words of Deane J in the High Court of Australia in Pavey & Matthews Pty Ltd v. Paul (1987) 162 CLR 221 at pp 256-257:

“… explains why the law recognises, in a variety of distinct categories of cases, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary process of legal reasoning, of the question of whether the law should, in justice, recognise the obligation in a new or developing category of case.”

The authorities also demonstrate that, while there is seldom any problem in ascertaining whether two essential preconditions for the application of the doctrine have been met � i.e. an enrichment of the defendant at the expense of the plaintiff � considerably more difficulty has been experienced in determining when the enrichment should be regarded as �unjust� and whether there are any reasons why, even where it can be regarded as �unjust�, restitution should nevertheless be denied to the plaintiff.

As to the first of these difficulties, the law, as it has developed, has avoided the dangers of �palm tree justice� by identifying whether the case belongs in a specific category which justifies so describing the enrichment: possible instances are money paid under duress or as a result of a mistake of fact or law or accompanied by a total failure of consideration. Whether the retention by the union of the entire compensation in the present case falls within such a category or not, however, it would in any event be necessary to consider whether restitution is precluded because of other factors. In the latter context, the following passage from the judgment of Henchy J in Murphy v. Attorney General, at p 314 is of particular significance:

“Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the courts for injury, pecuniary, or otherwise, which would be justiciable and redressable if such considerations had not intervened.”

In the present case, confronted with this difficulty the corporation seek to rely on Moses v. Macferlan, as authority for the proposition that, in the circumstances of this case, it would be unjust for the union not to refund the money at least in part.

The facts in that case, which is usually regarded as the starting point of the lengthy and fitful journey of English law towards a doctrine of unjust enrichment, can be briefly summarised. The plaintiff, Moses, endorsed to the defendant, Macferlan, four promissory notes in order to enable Macferlan to recover the money in his own name. However, before endorsing the notes, Macferlan agreed that Moses should not be liable for the payment of any part of the money. Contrary to this agreement, Macferlan sued Moses in the Court of Conscience for the sums in question and that court, holding that they could not admit any evidence of the agreement between the two, gave judgment against Moses. Moses having paid the money into court and Macferlan having taken it out, Moses brought an action on the case in the King�s Bench Division before Lord Mansfield. A verdict was found by him in favour of Moses, but subject to the opinion of the court upon the question:

“� whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only.”

The hearing of the motion to set aside the verdict in favour of the plaintiff entered by Lord Mansfield at nisi prius having come before the full court, the question was resolved in favour of Moses. Lord Mansfield, who again delivered the judgment with which all the other members concurred, said that:

“� this kind of equitable action, to recover back money which ought not in justice to be kept, is very beneficial and therefore much encouraged … in one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.”

However, while that statement of the law was the genesis of the law of unjust enrichment as it ultimately became, there has been little or no support for the view of the court in that case that the �ties of natural justice and equity� justified the setting aside of the decree of a court of competent jurisdiction.

In Phillips v. Hunter, Eyre CJ said that:

“The case of Moses v. Macferlan is, I believe, the only decided case that countenances such an action, but I cannot subscribe to the authority of that case …”

Having gone on to consider the case in some detail, he summarised his view as follows:

“I believe that the judgment did not satisfy Westminster Hall at the time; I never could subscribe to it; it seemed to me to unsettle foundations.”

In Goff and Jones on The Law of Restitution (4th ed), the learned editor, having observed (at pp 763-764) that:

“� this maxim (interest rei publicae ut sit finis litium) is as important in the law of restitution as in any other branch of English private law”

adds:

“Lord Mansfield�s decision, although just, was a blatant attack upon, and a de facto reversal of, the judgment of a competent court, and his observations have not been accepted as authority for any exception to the principle of res judicata.”

I am satisfied that Moses v. Macferlan is not a satisfactory authority for the proposition that the doctrine of res judicata can be significantly abridged by the invocation of the concept of unjust enrichment. Res judicata, on the contrary, as Henchy J pointed out in Murphy v. Attorney General, is one of the factors the application of which may render a seemingly unjust enrichment irreversible. I am also satisfied that in the present case, for the reasons I have elaborated, its successful invocation would involve the addition by judicial decision of a significant qualification to the operation of rule (5) in s 2 of the 1919 Act, which the legislature, as was their privilege, decided not to enact.

I think it is unnecessary to determine whether the retention by the union of the entire compensation constituted an unjust enrichment of it, because I am satisfied that those two considerations � public policy as reflected in the doctrine of res judicata and the exclusive role of the Oireachtas in legislation � are such as to render any such unjust enrichment, in the circumstances of the present case, irreversible.

I would allow the appeal, discharge the order of the learned High Court judge and substitute therefor an order dismissing the claim of the corporation.

JUDGMENT of Mr. Justice O’Higgins dated the 25th day of July, 2001.

A dispute arose between the plaintiff and the first named defendant which resulted in proceedings being taken by the first named defendant. On the 17th October, 1991 the Supreme Court granted a declaration to the first named defendant in the following terms that she was:-

In the position of a principal of a school within its jurisdiction and that she is entitled to be paid the full amount of salary de die in diem appropriate to that position from the date on which she was originally suspended (the 22nd June, 1976) giving credit for any payments of salary or in lieu of salary made to her since that date.

It was common case that the plaintiff had made two payments to the first named defendant prior to the hearing before Barron J. The first payment was a sum in respect of the period of the 26th June 1976 to the 31st July, 1980. It was a sum of �22,504.51 nett, superannuation and PAYE and PRSI having been deducted from gross pay of �31,711.94. On the 14th February, 1995 a further payment of �82,030.40 nett was paid to the first named defendant. That represented the balance of the gross salary due less superannuation, PAYE and PRSI from the 1st August, 1980 to the 31st October 1991, less a sum retained for payment to Social Welfare. Following the payment in 1995 the matter was referred back to the High Court on foot of the Supreme Court Order and came before Mr. Justice Barron on the 11th July, 1996. The gross payments due for each of the 15 years were agreed and there was no dispute about the PAYE and PRSI deductions. The relevant part of the order of Barron J. reads as follows:-

The Court doth find that the plaintiff is entitled to the sum set forth on the Second Schedule hereto being the full amount of salary payable to her for each of the financial years from the date in which the Plaintiff was originally suspended to the date in which the First Named Defendant resumed payment of the Plaintiff’s salary amounting in aggregate to the sum of �252,009.33 (gross) against which credit is to be given for payments of salary made by the First Named Defendant in the sums of �22,501.51 (nett) and �82,030.40 (nett) leaving a balance of �147,447.00. It is ordered and adjudged that the First Named Defendant do pay to the Plaintiff a sum of �147,477.42 and the costs of the proceedings in this Court arising from the reference backed by the Supreme Court to include the costs reserved by the said Order dated the 12th October, 1992 when taxed and ascertained.

From this sum of �147,474.42 it was agreed between the parties that a sum of �12,541.09 should be deducted in respect of superannuation contributions in order to preserve the pension rights of the first named defendant in this action.

The plaintiff’s claim is for the return of the sum of �112,816.14. It claims the said sum from either the first named defendant or the second named defendant. In respect of the first named defendant the plaintiff maintains that it paid the money to the Revenue Commissioners on her behalf and that it paid the same amount of money to her again on foot of the order of Barron J. which the plaintiff contends contemplated that she would pay her tax and PRSI on the amount of the decree. Alternatively, it claims the said sum as against the second named defendants as monies paid to them, which, following the order of Barron J. should rightly be the liability of the first named defendant.

When the matter was remitted to the High Court the first named defendant in these proceedings, Ms. Carr claimed interest on the two late payments which caused an extra tax liability for her of �9,000.00. She also claimed damages for the loss of her ability to shelter her income from tax liability by way of investments which attracted tax relief in at least some of the years in question. These claims were not successful. Mr. Quigley, the Chartered Accountant, called on behalf of Ms. Carr in those proceedings gave evidence before Barron J. concerning such interest and a claim for �9,000 over payment of tax. The following appears from the transcript of those proceedings. In answer to Q. 119 Mr. Quigley stated:-

We are assuming in our calculations that when she goes to the Revenue, having received an award she will be given concessionary treatment; that treatment will allow her to gain the benefit of her basic tax free allowances as a single person, PAYE allowance.

At question 122 Barron J:-

Suppose the award of the Court, with 15 separate sums for 15 separate financial years, would she not then get the benefit of all the tax free allowances for each of those years?

Mr. Quigley:-

Yes, she will get the benefit of the basic allowances, the personal allowance, the PAYE allowance but we have assumed that you will get those benefits anyway, because that is the essence of concessionary treatment, that the Revenue will allow.

Q. 123 Barron J.:-

She has been paying that income tax. It is all lumped together and paid in one year, is that right?

Mr. Quigley:-

If she gets the concessionary treatment she gets the rates and bands and the basic allowances that she would have got in each of the 15 years. That is the concessionary treatment that we have presented The alternative to that would be to receive the lump sum now to have it taxed in this year and get just this year’s allowance and we would prepare a calculation on the basis that she would get the concession.

The plaintiff argues that the above exchange demonstrates that the decree was on the basis that Ms. Carr would go to the Revenue Commissioners to be assessed for tax on the amount of the decree. Furthermore it relies on the evidence of Mr. O’Donnell, Solicitor in the case. He told the Court that after the decision of Barron J., when Mr. Nugent, the then Counsel for the VEC pointed out to the learned Trial Judge that tax had already been paid by the VEC, he was told by the Judge that the matter could be taken up with the Revenue authorities. The plaintiff further argues that the award of the salary being “gross” clearly envisaged that Ms. Carr would pay tax on it. It is the plaintiff’s case that the judgment of Barron J. did not reflect his intention that Ms. Carr would go for assessment to the Revenue Commissioners.

The plaintiff, anticipating that the defendant would contend that this Court should not interfere with the order of Barron J which was not appealed and would rely on the doctrine of res judicata, maintains that the first named defendant is estopped from relying on that doctrine by virtue of the representations made in the course of the case which have been referred to above.

 

AMENDING OR VARYING AN ORDER

The circumstances in which the Court will amend an order are as follows:

Order 28 Rule 11 of the Rules of the Superior Courts, 1986 provides:-

Clerical mistakes in judgments or orders, or errors arising therein from an accidental slip or omission may at any time be corrected by the Court on Motion without an appeal.

In my view that order has no bearing on the present case. The order accurately reflects a decision of the learned High Court Judge, even if it was his understanding that the first named defendant would subsequently go to the Revenue Commissioners to be assessed for tax. The Judge in fact made no such order nor was he asked to do so. The Judge when he made the order was aware that the VEC had deducted the relevant tax and passed it on to the Revenue Commissioners in accordance with its obligations under the PAYE system. Accordingly, there was no accidental slip or omission. I am reinforced in my view by the observations of McCracken J. in Concorde Engineering v. Bus �tha Cliath [1996] 1 ILRM 533 at 535/6 where he said:-

… the wording as the rule referring as it does to ‘any accidental slip or omission’, must be construed as encompassing only matters which were omitted from the judgment or order by reason of a slip or omission. That seems to me to connote that, were it not for the slip or omission, the amendment requested would of necessity have been in the original order.

In the present case it cannot be said with any certainty that Barron J. would have necessarily included in his order a stipulation that Ms. Carr seek assessment from the Revenue Commissioners if he had been requested to do so.

Apart from Order 28 Rule 11 the circumstances in which an order may be amended were the subject matter of several decisions to which I was referred. In Hughes v. O’Rourke & Ors [1986] ILRM 538 Henchy J. said at page 540 of the Report:-

I consider it to be a fundamental principle that, in the absence of a clear provision to the contrary in a statute or rule of court once a final order has been made and perfected in the High Court, the jurisdiction of the High Court as to the matters determined by that order is exhausted, save possibly to the extent that a subsidiary or supplementary order may be made subsequently by consent.

In Bellville Holdings v. Revenue Commissioners [1994] 1 ILRM 29 where it was held that the jurisdiction to amend an order was not confined to that given by Order 28 Rule 11 of the Superior Court Rules, Finlay C.J. stated at page 36 of the Report:-

There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected. The position and principles appear, however, to be accurately stated in the judgment of Romer J in Ainsworth v. Wilding [1896] Ch 673, where, at p. 677, he stated as follows:

So far as I am aware, the only cases in which the Court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the Court has power to rectify it under Order XXVIII r. 11;

(2) When the Court itself finds that the judgment as drawn up does not correctly state what the Court actually decided and intended.

Having referred to the decision of the Court of Appeal In Re: Swire 30 Ch. D. 239, Romer J. quoted from the judgments in that case as follows at page 678. Cotton LJ says:

It is only in special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.

Lindley LJ says:

If it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.

And Bowen LJ says:

An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice.

I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.

The decision in Bellville Holdings v. The Revenue Commissioners is of particular relevance. In that case an issue was determined by way of case stated to the High Court. The learned trial judge did not specifically direct that the matter be re-entered before the Appeal Commissioners pursuant to her finding. However in subsequent proceedings between the parties she amended her order to contain such a direction, on the basis that she considered it implicit in her judgment [the subject matter of the case stated] that the matter be re-entered. Notwithstanding that, the Supreme Court held that that was not a proper interpretation of the previous judgment. Finlay C.J. stated at p. 38:-

It seems to me that the furthest the judgment goes is that it is likely or not improbable that had there been an application made upon or immediately after the delivery of the judgment by the Inspector of Taxes for an order remitting the matter pursuant to s. 428(6) that the learned trial judge might well have granted such an order.

In the instant matter taking the plaintiff’s case at its very highest all that could be said is that had an application been made directly after the hearing to include an order that the plaintiff seek an assessment from the Revenue Commissioners, it is probable that such an order may have been made. The bases for so arguing are:-

(a) The comment made by the learned Judge when it was pointed out that the plaintiff had already paid tax, that the matter could be taken up with the Revenue Commissioners.

(b) The fact that in the order the sum was declared to be gross.

(c) The fact that the parties on both sides were surprised are matters that Carr be taken as evidence to suggest that it was understood that a credit was to be given to the VEC for monies they had paid and that therefore it was reasonable to expect that Ms. Carr, the first named defendant would pay tax.

However, it is by no means certain that it was the intention of the learned judge that Ms. Carr seek assessment from the Revenue Commissioners after the hearing. He interpreted the words “full amount of her salary de die in diem” as being the gross amount. He indicated it as “the measure of damages” notwithstanding that the judgment of the Supreme Court had substituted a declaration for relief by way of damages. It is at least possible in view of his use of the words “measure of damages” that the judge awarded damages notwithstanding the order of the Supreme Court which substituted a declaration for damages. If he did so the remedy was by way of an appeal.

In that context I should point out that the submission on behalf of the first named defendant that the Supreme Court ordered that Ms. Carr be given relief “by way of damages awarded to the Plaintiff” is based on a misreading of the order. The Supreme Court ordered as follows:-

That the High Court Order be varied by substituting declarations in the terms hereinbefore recited for the relief by way of damages awarded to the plaintiff.

I was referred to a passage in Howard v. Commissioners of Public Works [1994] 2 ILRM 301 where Lynch J. held that notwithstanding that the basis or foundation for an injunction had now gone, he was precluded from amending the injunction. At page 312 of the report he said “I do not see that I can by an order made in this plenary action amend an order made in completely separate judicial review proceedings …”

In the case of McG v. D. W. (Unreported, High Court, McGuinness J, 18th June, 1999) held that she had no jurisdiction to alter an order she had made in November, 1998. In her judgment she referred to the decision of the Supreme Court in A.G. v. Open Door Counselling Limited (No 2) [1994] 2 IR 353 and in particular the passage at page 340 where Finlay J. stated:-

What is at issue in this case is as to whether the Court, having delivered a judgment and made an order in accordance with the law as it then was, which was perfectly correct and carried out the full meaning and intent of the Court in 1988, Carr now discharge or vary that order by virtue of an amendment of the law which has occurred since it was made.

To that issue, if it were dealing with a question of any statutory amendment of law or any amendment of the law arising from a further judicial decision in another case, there can be only one answer, namely, that the Court has not got, as a court of ultimate appeal, any such jurisdiction and that it must be obliged, as a matter of fundamental principle, to refuse to alter the order it previously made.

Counsel for the first named defendant also referred me to a further decision of McGuinness J. in McMullen v. Clancy (Unreported, High Court, McGuinness J., 3rd November, 1999).

In Preston Banking Company v. William Alsop & Sons [1895] 1 Ch 141 the headnote reads as follows:-

The Court had no jurisdiction to rehear or alter an order after it has been passed and entered, provided that it accurately expresses the intention of the Court.

An application was made in an action that certain costs which the Applicant had by a previous order in the action been directed to pay might be made costs in the action, and for a stay of proceedings under the order on the ground that the order had been obtained by misrepresentation …

The Court of Appeal held that this was in effect an application to rehear the previous order and that the Court had no jurisdiction to entertain it.

The Court’s attention was drawn to Bright & Co. Ltd v. Sellar [1904] 1 KB 6 where at page 12 Cozens-Hardy J. stated:-

It seems to follow logically from what has been said that the High Court has now no jurisdiction to review its own order on the ground of apparent error, by a means of an independent action, and that the party complaining must come to the Court of Appeal.

Bentley v. O’Sullivan [1925] W.N. 95, and Arnott v. Holloway [1960] V.R. 22, a decision of the Supreme Court of Victoria were also cited.

In the light of these authorities it seems clear that there is a power in the court above and beyond the provisions of the slip rule to amend an order of a court. However, such power is to be exercised sparingly and only when the court finds that the judgment as drawn up does not correctly state what the court actually decided or intended. Apart from that the court does not have jurisdiction to interfere with an order of the court which correctly expressed the decision of the court and which was not appealed. The plaintiff is in effect asking the Court to vary the order of Barron J. which was final and not appealed. It seeks to have an additional term imported into the order by implication and on the importation of such term seek relief against the First Named plaintiff for unjust enrichment. In my view this case does not come with the parameters of the slip rule or the Belville decision.

 

RES JUDICATA

The case of Corporation of Dublin v. Building and Allied Trade Union [1996] 1 IR 468 was another unjust enrichment case where the defence of res judicata succeeded. The following passage at p. 48 of the judgment in the judgment of Keane J., as he then was, with which the other members of the Court agreed is pertinent in the present case.

The doctrine of res judicata applicable to this, as to every final judgment or award of any competent court or tribunal, has the consequences that the parties are estopped between themselves from litigating the issues determined by the award again. The justification of the doctrine is normally found in the maxim interest rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved – the anxiety, the delays, the costs, the public and painful nature of the process – there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to Court again. That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the Court been in possession of evidence not available at the hearing is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.

Counsel for the plaintiffs argued that the first named defendant is precluded or estopped from relying on the doctrine of res judicata because of the representations made on her behalf by Mr. Quigley. Counsel referred me to the case of Cassidy v. O’Rourke (Unreported High Court Carroll J., 18th May, 1983. I was also referred to Littondale Limited v. Wicklow County Council [1996] 2 ILRM 519; Republic of India and Anor v. India Steamship Company Limited [1993] A.C. 410; Showlag v. Mansour (PC) [1995] 1 AC 431 (these were all cases in which the doctrine of counter estoppel was invoked) and to a passage, 2nd Edition, The Doctrine of Res Judicata 1986.

The doctrine of counter estoppel is summarised in paragraph 17.10 of McDermott, Res Judicata and Double Jeopardy (p. 163).

However where an estoppel by res judicata meets an estoppel by conduct or representation, there is a genuine cross estoppel. In such a case the party against whom the plea of res judicata is made does not deny that he is estopped, but insists that the other parties estopped from saying so.

The following representations made by Mr. Quigley in the case before Barron J. are relied on by the plaintiff to preclude the first named defendant from relying on the doctrine of res judicata.

Answer to Q. 119.

(1) We are assuming in our calculations that when she goes to the revenue, having received an award she will be given concessionary treatment; that treatment will allow her to gain the benefit of her personal basic tax free allowances as a single person, PAYE allowance.

And again Question 123 at page 39 of the transcript:

(2) If she gets the concessionary treatment, she gets the rates and bands and the basic allowances that she would have got in each of the 15 years. That is the concessionary treatment that we have presented The alternative to that would be to received the lump sum now, to have it taxed in this year to get just this years allowances and we prepared our calculations on the basis that she would get the concession.

I cannot agree with the plaintiff’s contention.

Firstly, Mr. Quigley’s evidence must be taken in the context of his evidence on the topic of Ms. Carr’s claim for interest. Those remarks do not in my view constitute an undertaking that Ms. Carr would seek assessment on a decree which had not yet been made. Secondly, there was no undertaking given by Ms. Carr herself that she would go to the Revenue Commissioners to be assessed in respect of the award that might be given. Indeed, at the time when Mr. Quigley gave his evidence it was not known whether the judge would award a gross sum (as happened) or a net sum: certainly Counsel for the VEC (and probably Counsel for Ms. Carr) anticipated that the award would be net. In those circumstances it would be most unlikely that an undertaking would be given by Ms. Carr to seek an assessment. For that reason I do not consider that the first named defendant is precluded from successfully relying on the doctrine of res judicata. Furthermore, there is no evidence that the plaintiffs in the present action acted to their detriment by reason of such representation as was made by Mr. Quigley. The initial payments made by them to the Revenue Commissioners were prior to any representation made by Mr. Quigley in the court case. The subsequent payment, that is the payment of the amount ordered by the court, was not an action made on foot of a representation by Mr. Quigley, but rather an action done in compliance with an order of the High Court. Accordingly, the plaintiff’s argument that the first named defendant is estopped from relying on the doctrine of res judicata also fails. The plaintiff has therefore failed to establish its claim against the first named defendant.

The plaintiffs claim against the second named defendant is as follows. The plaintiff argues that the effect of the order of Barron J. was to put Ms. Carr in the position of an employee who had been given her emoluments without deduction of tax, since the words ‘gross salary’ are referred to in the order. Section 997 of the Taxes Consolidation Act, 1997 (formerly Section 133) provides as follows:-

(1) No assessment under Schedule E for any year of assessment need be made in respect of emoluments to which this Chapter applies except where – …

(b) the emoluments paid in the year of assessment are not in the same amount as the emoluments which are to be treated as the emoluments for that year but where any such assessment is made credit shall be given for the amount of any tax deducted or estimated to be deductible from the emoluments.

The plaintiff contends that the second named defendant is required to make an assessment under that section. It also submits that no credit can be given for the amount of tax deducted; since the order referred to gross salary, it follows that no tax was deducted In my view that argument flies in the face of what actually happened. PAYE deductions were made by the VEC from the salary due to the first named defendant as is required by law. The fact that in the full knowledge of such payments by the VEC Barron J. described her salary de die in diem to be “gross” does not alter the position. Indeed it was the essence of the case argued by the VEC before Barron J. that they had deducted tax and passed it on, as required, to the Revenue Commissioners.

Moreover, I am not convinced that Section 997 deprives the Revenue Commissioners of all discretion, and requires an assessment to be made regardless of the reality of the case. Section 43 of the Income Tax (Employment) Regulations 1960 (SI No. 28 of 1960) provides in Regulation 43 that:-

The Inspector shall, in any case where he does not propose to make an assessment on an employee with respect to whom tax was deducted during a year, send to the employee, as soon as possible after the end of the year, a statement of his liability for the year and showing how it is proposed to deal with any over-payment or underpayment of tax.

The Inspector in the present case utilised that regulation. In my view it is in no way in conflict with the provisions of Section 997 of the Taxes Consolidation Act. I accept the evidence of the Inspector that it would have been quite inappropriate to employ the provisions of Section 997 in circumstances when credit was given for tax actually paid the assessment would be nil.

It should also be noticed that no such claim is made in the pleadings nor is any relief by way of declaration sought by the plaintiff.

Under the Income Tax (Employment) Regulations, 1960 (SI No 28 of 1960) Regulation 31(3):-

If the amount which the employer is liable to remit to the collector on paragraph (1) of this Regulation exceeds the amount actually deducted by him from emoluments paid during the relevant income tax month, the Revenue Commissioners, on being satisfied by the employer that he took reasonable steps to comply with the provisions of these Regulations and that the under deduction was due to an error made in good faith, may direct that the amount of the excess should be recovered from the employee, and where they so direct, the employer shall not be liable to remit the amount of the said excess to the collector.

Insofar as it may have been suggested that that regulation has any bearing on the present proceedings I have to reject that contention. The payment made on foot of the order of the High Court was not paid in error, it was paid because the court ordered judgment.

In conclusion, while it is difficult not to feel some sympathy with the plaintiff, it would open them to appeal the order of Barron J. if they were dissatisfied with it. They consciously decided not to adopt that course. They cannot successfully circumvent that decision in these proceedings.

 

Gilroy v McLoughlin

[1989] ILRM 133
Blayney J.
What falls to be decided in this case is a preliminary issue which MacKenzie J by consent of the parties, directed to be tried by a judge without a jury. It arises in the following way.

A collision occurred on 3 September 1984 at the junction of Lower Kilmacud Road and Stillorgan Road between a motor car owned by the plaintiff (whom I shall call Mr Gilroy) and a motor car owned by the defendant (whom I shall call Mr McLoughlin) which was being driven by the latter’s brother, Don McLoughlin. Proceedings were instituted in the Circuit Court against Mr Gilroy by Mr McLoughlin and his brother, the former claiming damages for damage to his motor car and the latter claiming damages for personal injuries. The action was heard on 24 January 1986 in the Circuit Court by His Honour Judge Clarke who held that the damage suffered by the McLoughlins ‘was caused partly by the negligence of the defendant and the plaintiff’. He assessed damages at £3,800 and directed that such sum should be reduced by 10% by reason of the McLoughlins’ negligence and that 90% should be payable by Mr Gilroy.

From this decision Mr Gilroy appealed to the High Court and on the 13 May 1986 Lardner J reversed the Circuit Court order and dismissed the action. The relevance of the High Court order was as follows:

IT IS ORDERED that this appeal be allowed and that the said order of the Circuit Court be discharged and that the Civil Bill herein be dismissed.

AND IT IS ORDERED that the defendant do recover from the plaintiffs his costs and expenses of the Circuit Court proceedings and of this appeal when taxed and ascertained.

While the Circuit Court proceedings were pending, Mr Gilroy commenced the present action. In the statement of claim which was delivered on 17 December 1985, Mr Gilroy claimed that the collision had been caused by the negligence of Mr McLoughlin his servants or agents, and in his defence, delivered on 12 June 1986, Mr McLoughlin denied negligence and pleaded that ‘the collision was caused entirely, or alternatively contributed to, by the negligence and breach of duty of the plaintiff.

Mr Gilroy delivered a reply on 19 June 1986 joining issue and denying contributory negligence, and on 16 October 1987 delivered an amended reply which added to the earlier reply the following paragraph:

The defendant is estopped by reason of the decision of the High Court in the Circuit Appeal Record No. 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs and Patrick Gilroy, defendant from alleging negligence and breach of duty or contributory negligence and breach of duty as against the plaintiff.

It is the issue raised by this paragraph that MacKenzie J directed should be tried as a preliminary issue, the question to be tried being:

Whether the defendant is estopped by virtue of the decision of the High Court in the Circuit Appeal Record No. 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs and Patrick Gilroy, defendant from alleging that the plaintiff herein was negligent or in breach of duty or was guilty of contributory negligence and breach of duty.

Mr Gilroy’s contention is that it was decided in the earlier proceedings that he was not negligent; the issue of whether he was negligent is accordingly res judicata and it follows that Mr McLoughlin is estopped from raising it. Mr McLoughlin on the other hand contends that Lardner J did not make any findings in respect of negligence; all he found was that Mr McLoughlin had not discharged the onus that lay on him as plaintiff to prove negligence, and it was on that ground that he dismissed the action.

It is necessary to consider first the nature of the estoppel on which Mr Gilroy relies and then to see whether on the facts such an estoppel arises.

What is involved here is issue estoppel rather than action estoppel. In the latter form of estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a court of competent jurisdiction. It was defined as follows by Gibson LJ in Shaw v Sloan [1982] NI 393 at 398 C:

It would seem that before estoppel of an issue can arise there must have been a final determination of the same issue in previous proceedings by a court of competent jurisdiction and the parties bound by this earlier decision must have been either the same parties as are sought in the later proceedings to be estopped or their privies.

That case arose out of a collision between a motor cycle and a motor car. The plaintiff, who was a pillion passenger on the motor cycle, sued three defendants: the owner of the motor cycle (who was also the rider at the time of the collision), the driver of the car, and the owner of the car. In an earlier action in the County Court, brought by the third defendant against the first defendant, it had been held that the first defendant was solely responsible for the accident. The second and third defendants, relying on this decision, issued a Third Party Notice against the first defendant claiming to be idemnified against the plaintiff’s claim, and claiming that the first defendant was estopped from disputing liability. It was held that the issue which arose on the third party notice was the same issue which had been determined by the County Court judge and accordingly would have given rise to an issue estoppel but as the driver had not been a party to the previous action and as there was not privity between the driver and the owner, no issue estoppel in fact operated in the case.

In the present case the parties to the action were both parties to the previous proceedings and are clearly bound by them. The fact that Mr McLoughlin’s brother was also a party to those proceedings does not alter the position. The requirement is that the parties between whom the estoppel is claimed to operate should have been parties to the proceedings giving rise to the estoppel, and that requirement is satisfied here.

The decision in the earlier proceedings was also clearly a decision of a court of competent jurisdiction so the only element in Gibson LJ’s definition which remains to be considered is whether the issue raised by the plea in the defence, which I cited earlier, is the same issue as was determined in the previous proceedings.

In those proceedings Mr McLoughlin claimed that he had suffered damage as a result of Mr Gilroy’s negligence, so clearly the issue which the court had to decide was whether Mr Gilroy had been negligent in the sense of having been in breach of the duty of care he owed to Mr McLoughlin and other third parties in the driving of his motor car. Mr Gilroy says that that issue was decided in his favour as Mr McLoughlin’s claim against him was dismissed and he was given his costs in both the Circuit Court and the High Court on appeal. Mr McLoughlin on the other hand says that Lardner J made no finding at all; that he dismissed the action on the sole ground that the onus of proof had not been discharged and that this did not amount to a finding that Mr Gilroy had not been negligent. His counsel asked me to hear evidence of what Lardner J had said in giving his ex tempore judgment and I admitted such evidence on the authority of the decision of the Court of Appeal in England in Marginson v Blackburn Borough Council [1939] 1 All ER 273. In that case Lewis J, in the High Court, had refused to look at a shorthand note on the judgment of the County Court judge giving his reasons for his decision — the judgment being that relied upon as creating the estoppel — and Slesser LJ commented upon this as follows at p. 277 G:

In our view, however, Lewis J, was entitled to have regard to the reasons given by the judge, and we have not hesitated to avail ourselves of that assistance. We are dealing here not so much with what has been called estoppel by record as with the broader rule of evidence which prohibits the reassertion of a cause of action which has been litigated to a finish — estoppel by res judicata. In such a case, the question arises, what was the question of law or fact which was decided? For this purpose, it may be vital in many cases to consider the actual history of the proceedings. Thus, in re Grayden, Ex p. Official Receiver [1896] 1 QB 417 on a question whether a judgment of the county court constituted an estoppel, Vaughan Williams J, refers to an inference to be drawn from the observations of the county court judge when asked for leave to appeal. Moreover, in Ord v Ord [1923] 2 KB 432, also on a question of res judicata, references to proceedings before the judge were considered by Lush J, at p. 440. However even if there were not authority to show that this had in fact been done, I can see in principle no objection, when the question before the court is what was actually decided at an earlier trial, to having recourse to that information which is to be derived from reading a record of the proceedings themselves.

The evidence of Lardner J’s judgment was given by Mr McLoughlin’s solicitor, Mr Greg Casey, who had taken a note in longhand of the judgment as it was being delivered. His evidence was that Lardner J had said that liability depended on whether the traffic lights at the junction where the accident occurred were green in favour of Mr McLoughlin or Mr Gilroy; on the evidence there was inescapable conflict as to the state of the lights; the onus of proof was on the plaintiff to establish his case on the balance of probabilities; there was nothing to show whether one side was telling the truth or the other and therefore he had no alternative but to dismiss the plaintiff’s claim.

It is clear from this evidence that Lardner J did not make any finding that Mr Gilroy had not been negligent. What he decided was that Mr McLoughlin had failed to discharge the onus of proving on the balance of probabilities that Mr Gilroy had been negligent. Whether that amounts to the same thing as a finding that Mr Gilroy was not negligent is a nice point but having regard to the view I have formed on other aspects of the case it is not necessary for me to decide it and I do not propose to do so.

I return then to the basic question which has to be considered, namely, whether the issue raised by the relevant plea in the defence is the same issue as was determined in the earlier proceedings.

The issue which the amended reply seeks to estop Mr McLoughlin from raising is whether Mr Gilroy was ‘negligent or in breach of duty or was guilty of contributory negligence and breach of duty.’ It seems to me that the reference to breach of duty can be omitted as amounting to tautology so the question is was there in the previous proceedings a final determination of the issue as to whether Mr Gilroy was negligent or guilty of contributory negligence.

In order to answer this question it is necessary to consider first what is the meaning of the plea in the defence that ‘the collision was caused entirely or alternatively contributed to by the negligence and breach of duty of the plaintiff.’ In my opinion this is simply a plea of contributory negligence, in other words, a plea that the collision was caused or contributed to by the failure of the plaintiff to take such care as a reasonable man would take for his own safety. While the term ‘negligence’ is used on its own in the plea, it should not be construed as meaning a breach of the duty of care owed by the plaintiff to the defendant as negligence in that sense would have no place in such a plea. It seems to me, accordingly, that the issue which the plaintiff is claiming that the defendant is estopped from raising is whether the collision was caused or contributed to by the failure of the plaintiff to take such care as a reasonable man would take for his own safety. So the question is whether this issue was finally determined in the earlier proceedings. When the question is put in this form, I think there is no doubt as to the answer. This issue was not merely not determined but would not even have been relevant in the earlier proceedings. The only negligence of Mr Gilroy that was considered was negligence in the sense of a breach of the duty of care that he owed to Mr McLoughlin. The issue of Mr Gilroy’s contributory negligence did not and could not arise because Mr Gilroy made no claim against Mr McLoughlin in those proceedings and it is only if he had that it would have been appropriate for the issue of Mr Gilroy’s contributory negligence to be raised. No doubt the same facts are frequently evidence of both negligence and contributory negligence so that it might be argued that in dismissing Mr McLoughlin’s claim based on the alleged negligence of Mr Gilroy Lardner J was necessarily finding that there was no contributory negligence on the part of Mr Gilroy either, but it seems to me that the answer to this argument is that since the question of contributory negligence arises only where there is already a finding of negligence against the other party and since there was no such finding against Mr McLoughlin it follows that the question of Mr Gilroy’s contributory negligence could not have been considered by Lardner J. He may have considered evidence which might support a finding of contributory negligence but he would have considered it solely for the purpose of deciding if Mr Gilroy had failed in the duty of care he owed to Mr McLoughlin. He would not have considered it in the context of deciding if Mr Gilroy had failed to take the care for his own safety that a reasonable man ought to take, or in other words, for the purpose of deciding if Mr Gilroy had been guilty of contributory negligence.

In short, I consider that if Lardner J could be said to have determined any issue, the issue he determined was that of Mr Gilroy’s negligence, not that of his contributory negligence, and since this latter issue was not determined Mr McLoughlin is not estopped from raising it in his defence.

Mr Gilroy’s counsel referred me to Gannon J’s recent decision in Donohoe v Browne and McCabe [1986] IR 90 but in my opinion it is clearly distinguishable from the present case. The action there arose out of a collision between a motor cycle owned and ridden by the plaintiff and a motor car owned by the first defendant and driven by the second defendant. The first defendant had sued the plaintiff in the District Court for the damage to her car. The District Justice found each party equally to blame. The first defendant appealed his decision and on the appeal the Circuit Court held that the plaintiff was solely responsible for the collision. The order of the Circuit Court included an express finding that ‘the defendant was negligent and the plaintiff was not negligent’. In other words, a finding that the plaintiff in the High Court action was negligent and the first defendant was not negligent. On these facts Gannon J held that the plaintiff was estopped from alleging that the defendants were negligent and he dismissed the action. What clearly distinguishes that case from the present is the express finding by the Circuit Court judge that the plaintiff had been negligent. In the present case there was no express finding at all.

I would answer the issue formulated in the order by MacKenzie J, by saying that the defendant is not estopped by virtue of the decision of the High Court in the Circuit Appeal Record No. 205/1986 between Dennis McLoughlin and Don McLoughlin, plaintiffs and Patrick Gilroy, defendant from alleging that the plaintiff herein was guilty of contributory negligence.

Breathnach v Ireland and Ors

[1989] IR 489

Lardner J.
18th July 1989

[1989]
1 I.R. Breathnach v. Ireland
Lardner J. 491
H.C.

This matter comes before me as the trial of a preliminary issue in proceedings instituted by the plaintiff by plenary summons, claiming damages against the defendants for assault and battery, false imprisonment, intimidation, malicious prosecution and failure to vindicate his constitutional rights. The wrongful acts alleged are claimed to have been committed when he was arrested by the third defendant and subsequently while he was in custody. It is not in dispute that the plaintiff was arrested on the 5th April, 1976, by the third defendant, a member of the Garda Siochana, under s. 30 of the Offences Against the State Act, 1939, and detained at the Bridewell garda station for approximately 48 hours for the purpose of garda enquiries in relation to an armed robbery on a mail train at Palmerstown, County Dublin on the 31st March, 1976. The plaintiff alleges in his statement of claim that while in custody at the Bridewell on the 7th April, 1976, he was wrongfully assaulted and beaten by the fourth and fifth defendants, members of the Garda Siochana. Later on the same day he alleges he was further assaulted and beaten by the fourth defendant. He pleads that as a result of these assaults and batteries and in fear of such assaults the plaintiff signed against his will a document purporting to be a confession of involvement in the robbery of the mail train on the 31st March, 1976, and that in fear of further assaults he repeated this purported confession verbally to the seventh, eighth and ninth defendants later on the same date. He alleges the said confession was untrue and was extracted from him by oppression and violence. He then pleads that on the 7th April, 1976, he was released from unlawful imprisonment and was thereupon wrongfully arrested and falsely imprisoned within the garda station by the tenth defendant. He alleges that on the 5th or 6th of April in accordance with his constitutional rights he requested a member of the Garda Siochana to obtain for him the services of a certain solicitor and this request was wrongfully neglected and ignored. And he further alleges that on or about the 7th, 8th and 9th April, 1976, the fourth, fifth, sixth, seventh, eighth and ninth defendants, maliciously and without reasonable and probable cause, caused the plaintiff to be prosecuted by causing false informations to be put before the Director of Public Prosecutions who in consequence had charges of armed robbery of a mail train near Sallins on the 31st March, 1976, and conspiracy to commit armed robbery of the said train perferred against the plaintiff in the Dublin Metropolitan District Court. The plaintiff subsequently instituted these proceedings by plenary summons and statement of claim to which I have referred. By their respective defences the defendants deny the wrongful acts complained of by the plaintiff and then plead that the issues raised in these proceedings in relation to the allegations of ill-treatment, assault, battery, wrongful imprisonment, oppression, inducement of fear and violence were raised and adjudicated upon in the course of certain proceedings before the Special Criminal Court and were properly and lawfully determined beyond any reasonable doubt against the plaintiff and that the plaintiff’s claim in these proceedings is to that extent res judicata as between the plaintiff and the defendants. Alternatively the defendants plead that the plaintiff is estopped from raising or litigating such matters as were determined as aforesaid by the Special Criminal Court.
On the 12th January, 1987, MacKenzie J. ordered that a preliminary issue be tried as to whether the issues raised by the plaintiff in the pleadings in this action are res judicata and whether the plaintiff is estopped from now raising such issues. In accordance with directions given in this order a statement of claim was delivered by the defendants pleading that the plaintiff was estopped from raising these issues and defences were delivered by the plaintiff inter alia contesting that there was any estoppel, denying that the first and second defendants and other defendants were in privity with the prosecution in the proceedings before the Special Criminal Court. The defendants claim, in my view correctly, that the issues raised in the plaintiff’s civil action for damages relating to assault and battery, false imprisonment, malicious prosecution and failure to vindicate constitutional rights were raised by the plaintiff at his trial before the Special Criminal Court. They were raised in relation to the written and oral confessions alleged to have been made by the plaintiff (accused) while in garda custody and which the plaintiff (accused) alleged were not voluntary statements but were obtained by unlawful means. During the course of the prosecution case in the Special Criminal Court, a lengthy inquiry, in which evidence was adduced by witnesses for the prosecution and for the defence and which lasted for 30 days during a trial of 35 days, was conducted to determine whether or not the statements were voluntary. This inquiry, which involved the consideration of the accused’s allegations of assault and battery on him by the defendants, of unlawful arrest, of wrongful imprisonment, of intimidation and failure to vindicate his constitutional rights, was concluded by a full and detailed consideration of the evidence adduced and a detailed statement of the court’s decision on the several allegations. In the trial of the present issue counsel for the defendants opened fully to me the record of the Special Criminal Court’s decision of these matters. It was formally objected to by Mr. Carney though he did not make any specific submissions that this record was inadmissible. I am satisfied that it is a correct and admissible record of the Special Criminal Court’s decision. It records a clear determination by the Special Criminal Court that neither the fourth nor fifth defendants nor any other member of the Garda Siochana had subjected the plaintiff to any assault or battery. It does not reveal any determination that there was no false imprisonment by any of the defendants; that there was no malicious prosecution; or that there was no failure to vindicate constitutional rights. At the conclusion of his trial the plaintiff (accused) was convicted of the offence with which he was charged. Thereupon he appealed to the Court of Criminal Appeal which in a carefully considered written judgment, having expressly left the findings of the Special Criminal Court on the issue of assault and battery undisturbed,decided to quash the conviction on the ground that the Court of Criminal Appeal was not satisfied beyond reasonable doubt nor did they think that the court of trial was entitled to be satisfied beyond reasonable doubt that the statements made by the plaintiff were voluntary or that the manner in which they were made satisfied the basic requirements of fairness. No further charges were or could have been preferred against the plaintiff following upon the quashing of his conviction in these circumstances. The plaintiff however then instituted the present action for damages against the defendants.
Having heard counsel for all parties I do not understand the defendants to be relying on the plea of estoppel in respect of the issues of false imprisonment, malicious prosecution, intimidation or failure to vindicate constitutional rights. They do however rely on this defence in regard to the issue of assault and battery made against the third and fourth defendants personally and the first and second defendants as being vicariously liable for their tortious acts.
How this issue is to be determined depends upon the view one takes of the Special Criminal Court’s decision, its status and effect. The finding of the Special Criminal Court on the issue of assault and battery, that the defendants had not assaulted the plaintiff, was directly material to the determination of the case before that court and was a final decision of that court. Furthermore, the conclusion that the defendants had not assaulted the plaintiff must have been arrived at after applying the onus of proof in criminal cases, that is to say it must have been arrived at by the court on the basis that it was satisfied beyond a reasonable doubt on that issue.
In Kelly v. Ireland [1986] I.L.R.M. 318 O’Hanlon J. considered the question of the availability of the decision of a court trying criminal proceedings for the purpose of creating estoppel in subsequent civil proceedings. Having considered the opinion of Lord Diplock in Hunter v. The Chief Constable of the West Midlands [1982] A.C. 529 and the judgments in the Court of Appeal in the same case reported sub. nom. McIlkenny v. The Chief Constable of the West Midlands [1980] Q.B. 283 he concluded at page 328 of his judgment:
“In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such decision may give rise to issue estoppel in later civil proceedings in which that party is also involved. Such estoppel would arise, not only in relation to the specific issue determined . . . but also to findings which were fundamental to the court’s decision on such issue.”
I agree with and adopt that conclusion and statement of the law. In the present case there were two findings of the Special Criminal Court in regard to the issue whether the plaintiff had been assaulted by the gardai prior to making a statement. The first was given after a very lengthy trial of the issue of the voluntariness of the accused’s statement in which both the prosecution and the defence witnesses were examined and cross examined. The court after a long and detailed consideration of the evidence made the following ruling at page 24 of the transcript:
“The court is satisfied beyond all reasonable doubt that the statements alleged to have been made by the accused were not made as a result of any assaults, illtreatment or improper matters employed by members of the Garda Siochana or any of them and that the injuries of which the accused subsequently complained were not inflicted or caused by any member of the Garda Siochana.”
Having considered other matters not relevant to the present issue the court admitted the statements as voluntary. Then there was a second relevant finding of the court which was made in its judgment at the conclusion of the trial at page 14 where it is said:
“. . . the court has carefully considered all the evidence in this case and is satisfied beyond a reasonable doubt that these statements are true and find the accused Osgur Breathnach guilty . . .”
This is clearly a confirmation of the first ruling to which I have referred.
If the matter rested there I should have no difficulty in applying the principle (as stated by O’Hanlon J.) to the decision of the Special Criminal Court as a final judgment. But Mr. Breathnach, having been convicted, appealed to the Court of Criminal Appeal, which set aside his conviction for reasons which, in my view, did not reflect on the finding of the Special Criminal Court on the issue of the alleged assault by the gardai. At page 23 of its judgment the Court of Criminal Appeal said:
“Notwithstanding the fact therefore that the applicant also made detailed and serious allegations of physical cruelty and threatening behaviour by the Garda Siochana prior to the making of these statements, the court is satisfied that it cannot and should not interfere with the decision of the court of trial, who of course had the opportunity of seeing and hearing all the witnesses concerned, that these allegations were untrue.”
The court’s decision is then given at page 29:
“Working on the basis that all the primary findings of fact made by the court of trial are correct or beyond the reach of correction in this court, we are not satisfied beyond reasonable doubt, nor do we think that the court of trial was entitled to be satisfied beyond reasonable doubt under either head of the test laid by the Supreme Court in Shaw’s case that the statements made by this applicant were voluntarily made or that the manner in which they were made satisfied the basic requirements of fairness.”
The court then, having decided that the statements of Mr. Breathnach should not have been admitted in evidence and that without them there was not enough evidence to connect him with the crimes charged, allowed the appeal against conviction and sentence. And there the matter rests, no further trial of the same offences having occurred or being permissible in the circumstances. In these circumstances should the decision of the Special Criminal Court on the issue of assault be regarded as a subsisting decision on that issue? In my view that determination of the Court of Criminal Appeal by its carefully worded decision,expressly at pages 23 and 24 of its judgment, left undisturbed the decision on the issue by the Special Criminal Court. It remains as a subsisting judgment of the Special Criminal Court on that issue.
The civil proceedings brought by Mr. Breathnach inter alia claiming damages for acts of assault by the defendants and now pending in the High Court raise the identical question in regard to the alleged assaults which has already been decided against Mr. Breathnach by a court of competent criminal jurisdiction. It is an example of civil proceedings being instituted for the purpose of mounting a collateral attack on the decision made on the issue against Mr. Breathnach by the Special Criminal Court. These allegations of being assaulted and beaten which the plaintiff now makes in his civil action were considered in the Special Criminal Court at great length. Evidence was adduced on the plaintiff’s behalf and by the fourth and fifth defendants; counsel for the plaintiff (the accused) cross-examined these witnesses at length. I am satisfied the plaintiff had a full and fair opportunity of presenting his case on this issue to the Special Criminal Court and that he fully availed of this opportunity. The issue clearly received full and careful consideration by the Special Criminal Court which decided against the plaintiff on the issue in two judgments to which I have referred. As Lord Halsbury L.C. said in his speech in Reichel v. McGrath (1889) 14 App. Cas at p. 668:
“. . . I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”
I am satisfied that neither justice nor fairness requires that the plaintiff in the present case should be allowed to re-open this issue in civil proceedings. In my judgment the plaintiff is estopped from raising or litigating the issue whether the fourth and fifth defendants or any member of the Garda Siochana, being a servant or agent of the first defendant, committed acts of assault and battery against the plaintiff on the 7th April, 1976, as alleged in paragraph 5 and 6 of the plaintiff’s statement of claim in this civil action instituted by him. It was not contended before me by any of the defendants on this preliminary issue that the plaintiff is estopped from raising or litigating any issue relating to alleged false imprisonment, malicious prosecution or failure to vindicate his constitutional rights.

 

Pringle v Ireland

[1994] 1 ILRM 467

Murphy J
The criminal proceedings
On 27 November 1980 the plaintiff herein, Peter Pringle, was convicted by the Special Criminal Court of the murder on 7 July 1980 of Henry Byrne who was then a member of An Garda Síochána acting in the course of his duty. On the same date Mr Pringle was convicted of robbery contrary to s. 23 of the Larceny Act 1916 (as inserted by s. 5 of the Criminal Law (Jurisdiction) Act 1976). On the charge of robbery the plaintiff was sentenced to be imprisoned for a period of 15 years to date from 27 November 1980. As the terms in which the death penalty was expressed are material to the plaintiff’s claim herein and are material to the argument advanced by him to this Court, I set out the awesome terms of that judgment as follows:

The sentence and judgment of the court are and it is ordered and directed that you Peter Pringle be now removed from this Court to the prison in which you were last confined and that you be there detained in custody and that on 19 December 1980 you there suffer death by execution in the manner prescribed by law and that after such sentence shall have been carried into effect your body be buried within the precincts of the said prison.

These are therefore to command you the Governor of Portlaoise Prison, Portlaoise in the County of Laois in which the said Peter Pringle is now confined that on Friday, 19 December 1980 you take the body of the said Peter Pringle and that you cause execution of the judgment aforesaid to be done upon the said Peter Pringle in the manner prescribed by law and for you so doing this shall be your sufficient warrant.

 

The plaintiff applied to the Court of Criminal Appeal for leave to appeal against the convictions aforesaid and that application was heard over a number of days in the months of April and May 1981. Having reviewed at length the submissions made to them, the court concluded that the application for leave to appeal failed and the application was accordingly refused. Pursuant to s. 6(2) of the Courts of Justice Act 1928, the Court of Criminal Appeal directed that the sentence of death pronounced at the trial of Peter Pringle should have effect as if for the day mentioned therein 8 June 1981 was substituted. On 27 May 1981 the President of Ireland by an instrument in writing under his hand commuted the death penalty imposed upon Patrick McCann, Colm O’Shea and Peter Pringle in the Special Criminal Court on 27 November 1980 to 40 years’ penal servitude.

It does appear that on 18 June 1981 the secretary to the Minister for Justice wrote to the Governor of Portlaoise Prison in the following terms:

Re: Patrick McCann, Colm O’Shea, Peter Pringle

I am directed by the Minister for Justice to inform you that the President, on 27 May 1981, acting on the advice of the government, commuted to penal servitude for 40 years in each case, the sentence of death imposed by the Special Criminal Court on 27 November 1980 on the above named offenders on their conviction of the murder of Garda Henry Byrne.

I am to add that the decision of the government to advise the President to commute the sentence was arrived at on the understanding that the full sentence of 40 years would be served without remission.

The present proceedings
The existing civil action commenced with the issue of a plenary summons on 16 January 1992. The statement of claim bears the date 2 December 1991 but presumably was delivered subsequent to the issue of the plenary summons. In the plenary summons and more particularly the statement of claim the plaintiff asserts that his prosecution, trial, conviction and sentence were conducted, carried out and imposed in a manner repugnant to the Constitution and in violation of his rights thereunder. He claims a declaration to that effect. He also seeks a declaration that certain statutes specified therein, or part thereof, are repugnant to the Constitution but in particular he claims ‘the restoration of his liberty and other human rights’ as well as exemplary damages arising out of the matters aforesaid.

In the statement of claim Mr Pringle sets out at considerable length and commendable clarity the history of the investigation by the gardaí into the robbery and capital murder with which the plaintiff was subsequently charged. The statement of claim specified the many respects in which it is alleged that the investigation of the facts; the interrogation and detention of the plaintiff; the manner in which he was charged and the circumstances in which he was prosecuted before the Special Criminal Court are alleged to have been defective in law and in certain cases alleged to have been in breach and an abuse of the plaintiff’s constitutional rights. The defects alleged in the pre-trial procedures and within the trial itself are both numerous and serious. Perhaps the scope and nature of the plaintiff’s case can be summarised by quoting the opening paragraphs of the statement of claim which are as follows:

(1) That every action of Ireland taken against the plaintiff in the course of his being prosecuted, from his arrest on 19 July 1980 to having a sentence of 40 years’ penal servitude without remission pronounced upon him on 27 May 1981 and his present detention, were and are unlawful and repugnant to the Constitution and that he was not accorded due course of law as required by the Constitution and his rights under the Constitution were and continue to be violated.

(2) The claim and complaint of the plaintiff is grounded upon the Constitution and the law and goes to the foundation of the trial of offences, to the essence of the Constitution and to the rights of the plaintiff thereunder. The plaintiff shall show that he could not have been prosecuted, tried, convicted or sentenced but for the abuse and misuse of law against him and shall sustain his claim and complaint with proofs.

In the defence delivered on 10 April 1992 a plea in bar is raised in the following terms:

(1) The matters raised by the plaintiff in the statement of claim have already been adjudicated upon by the Special Criminal Court and, on appeal, by the Court of Criminal Appeal in a judgment dated 22 May 1980, delivered in the Court of Criminal Appeal, Nos. 93/94/95 of 1981 and as such are res judicata.

(2) If, which is denied, the matters raised by the plaintiff in the statement of claim are not res judicata then they are matters which the plaintiff was in a position to raise at his trial before the Special Criminal Court and, or, at his appeal before the Court of Criminal Appeal and by reason of his failure to raise them at that time he is estopped from raising them in these proceedings.

(3) The proceedings are an abuse of the process of the court.

(4) It is denied that the plaintiff has locus standi to maintain the proceedings in relation to any of the statutes which he seeks to impugn.

The remaining paragraphs of the defence dispute the truth of the allegations contained in the statement of claim but that part of the defence was expressed to be without prejudice to the objections in law quoted above.

By order of Lardner J made on 15 March 1993 it was ordered that the issues raised by paragraphs 1 to 4 aforesaid of the defendants’ defence be tried as a preliminary issue together with a motion by the defendants for an order striking out the plaintiff’s claim on the grounds that it disclosed no reasonable cause of action. Those alone are the issues with which this judgment is concerned.

Submissions on the issue and motion
Counsel on behalf of the defendants accepted first that the onus lay on them to establish the case made in the first four paragraphs of their defence herein and secondly, that for the purposes of the issue and motion (but not otherwise) the Court must assume that the allegations contained in the statement of claim will be substantiated. Indeed, this proposition was referred to in my judgment in Tassan Din v. Banco Ambrosiano SPA [1991] 1 IR 569 (at p. 575) in the following terms:

Put another way the application to dismiss the present action on the grounds that it is vexatious or an abuse of the process of the court must proceed on the assumption that the plaintiffs will be able to prove (and should have an opportunity of attempting to prove) any allegation of fact on which they reasonably rely.

Counsel on behalf of the defendants summarised his submissions as follows:

(1) That all of the matters complained of in the statement of claim in relation to the trial of the plaintiff in the Special Criminal Court and any and every pre-trial procedure which was relevant or material to the fair trial of the plaintiff before that court were subsumed into the appeal to the Court of Criminal Appeal and that the decision of that court, in the absence of an appeal taken to the Supreme Court, was final by virtue of the express provisions of s. 29 of the Courts of Justice Act 1924 as applied to the Court of Appeal as established by the Courts (Establishment and Constitution) Act 1961, s. 3 by the terms of s. 12 of the Courts (Supplemental Provisions) Act 1961. The material provisions of s. 29 aforesaid (in the absence of a certificate granted in accordance with the provisions of that section) are as follows:

The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final ….

In addition to referring to the provisions of the 1924 Act, counsel relied on the decision of the Supreme Court in Hardy v. Ireland delivered on 18 March 1993.

(2) That it was not open to the plaintiff in the present action to challenge the constitutionality of legislation unless he was in a position to make the case that the legislation impugned affected his legal rights. It was then contended that insofar as any of the legislation now challenged impinged on the rights of the plaintiff to a fair hearing with due process of law, such argument could and should have been made (and indeed may have been made) in the Special Criminal Court or the Court of Criminal Appeal.

(3) That the present action constitutes an attempt by the plaintiff to reverse by civil proceedings the decision made by the Court of Criminal Appeal within its proper jurisdiction. That it was an abuse of the process of the court to attempt to overthrow the decision reached in criminal proceedings where the onus of proof was ‘proof beyond reasonable doubt’ by civil proceedings where the onus was the lesser standard of ‘proof on the balance of probabilities’.

(4) That the exercise by the President of Ireland of his constitutional functions, including in particular the constitutional power to commute or remit punishment imposed by any court exercising criminal jurisdiction cannot be reviewed by this or any court having regard to the provisions of Article 13.8.1° of Bunreacht na hÉireann.

It appears from the affidavit sworn by Edmund Kent, solicitor of the office of the Chief State Solicitor, on 9 November 1993 that due to the lapse of time which has occurred since the hearing before the Special Criminal Court that the only copy of the transcript of the evidence taken at that trial available to the defendants is incomplete. It would seem to follow that the defendants are not in a position to sustain a claim that all of the complaints made by the plaintiff and put in issue by the defendants were the subject matter of decisions by the Special Criminal Court. At this stage, therefore, the defendants confined themselves to the argument that the decision of the Special Criminal Court and of the Court of Criminal Appeal operated as an estoppel, not in respect of particular issues determined by those courts but in relation to any argument, matter or issue which might have been raised by way of argument or defence in either of those courts whether so raised or not.

Indeed, it would seem that the essence of the argument made on behalf of the State was the finality of the decision of the Court of Criminal Appeal and counsel on behalf of the defendants conceded that the argument that the proceedings constituted an abuse of the court derived essentially from the fact that the Oireachtas had provided that the decision of the Court of Criminal Appeal was to be final in circumstances such as the present.

I do not see how one can escape the conclusion that the word ‘final’ whether used in the Constitution (in conjunction with the word ‘conclusive’) in relation to the Supreme Court or in the Courts of Justice Act 1924 in relation to the Court of Criminal Appeal puts the decision of the court to which the word relates beyond review by any other judicial body. Of course, this is a disturbing concept.4 Recognising human fallibility and frailty cases must occur — hopefully rarely — in which it will emerge that the ultimate and final decision was erroneous. No judicial system can eliminate this possibility. No matter how carefully the pre-trial procedures are conducted and supervised: no matter how thorough, dedicated and experienced those engaged in the trial procedure may be whether as judge, juror or lawyer, mistakes or errors can and do occur. The appellate procedures are an effort to remedy such errors and at the same time a recognition that they are bound to occur. Even if the most sophisticated appellate procedures are put in place with the right to parties who claim to have suffered injustice to have cases reviewed and reheard by a series of appellate courts or tribunals, nobody would be so arrogant as to claim that the ultimate decision necessarily established where truth and justice lay.

In Tassan Din v. Banco Ambrosiano SPA (above) I quoted (at pp. 580 & 581) two passages from the speech of Lord Simon of Glaisdale in The Ampthill Peerage [1977] AC 547 as follows:

As a means of resolution of a civil contention, litigation is certainly preferable to personal violence. But it is not intrinsically a desirable activity, certainly not on the scale in which it raged in the Ampthill family in the early 1920s. The picture drawn by Charles Dickens in Bleak House of the long drawn out and ruinous law suit of Jarndyce v. Jarndyce and of poor Miss Flite, her wits overturned by the strain of litigation, was based on fact. The law itself is fully conscious of the evil of protracted litigation. Our forensic system, with its machinery of cross-examination of witnesses, and forced disclosure of documents, is characterised by a ruthless investigation of truth. Nevertheless, the law recognises that the process cannot go on indefinitely. There is a fundamental principle of English law (going back to Coke’s Commentary on Littleton) generally expressed by a Latin maxim which can be translated: ‘It is in the interest of society that there should be some end to litigation …’.

And once the final appellate court has pronounced its judgment the parties and those who claim through them are concluded; and, if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it. A line can thus be drawn closing the account between the contestants. Important though the issues may be, however extensive whatsoever the evidence, whatever the eagerness for further fray, society says: ‘We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough’.

Of course, those colourful passages are not of immediate relevance to the present case. First, they have no direct application in this jurisdiction and secondly, and more importantly, they were related solely to civil proceedings. The importance which I attach to them is the recognition that at the end of the day it has to be accepted that all judicial systems are fallible and it is in that context that our Constitution expressly provides that the decision of the Supreme Court is to be ‘final and conclusive’ and that provision is of equal application to both civil and criminal matters. The provisions of the Courts of Justice Act 1924 are clearer — if less authoritative — to the extent that manifestly the status conferred upon the decisions of that court relate exclusively to criminal matters. It would be difficult for a litigant in civil proceedings knowing that the account of material events put forward by him was true to accept a final judgment which mistakenly rejected that truth. The position in criminal proceedings is infinitely more serious as the present case dramatically illustrates. If the contentions of the plaintiff are correct not only were the criminal proceedings flawed but they were flawed with the result that an innocent man was convicted of the most serious crimes and deprived of his liberty and nearly forfeited his very life. It is in that context that the question is posed: ‘Are there any circumstances in which or any grounds on which a court of first instance can be asked to review or set aside the decision of a court whose judgment is expressed to be final?’

It was held by me in the Banco Ambrosiano case (and conceded by counsel for the defendants in that case for the purposes of the argument in the High Court) that a decision of the Supreme Court could be set aside by proceedings brought for that purpose in the High Court where the plaintiff seeking the rectification established that the order of the Supreme Court was obtained by fraud. Whilst Mr Pringle did in the course of his argument refer to ‘deception’ being practised on the court, I do not believe that the case as pleaded or argued by him was one in which it could be said that, even if his version was substantiated, that the decision or order of either court was obtained by fraud.

Mr Pringle relied upon the decision of the Supreme Court (and in particular the judgment of Ó Dálaigh CJ), in Application of Woods [1970] IR 154 as establishing that the decision of the Supreme Court itself was not final or conclusive in relation to the lawfulness of the detention of a person by or on whose behalf an application for habeas corpus had been made. It would seem to me that the judgment in that case relates solely to the nature of the functions carried out by a judge of the High Court in the first instance to whom an application for habeas corpus is made and the effect of a judgment of the Supreme Court on an appeal from the decision of the High Court in such an application. What the Chief Justice pointed out (at p. 162) was that the High Court was bound to consider the grounds of illegality complained of by the applicant for habeas corpus, and to be alert for other grounds which would render the detention unlawful. He then goes on to say:

But neither the High Court nor the Supreme Court warrants, by its decision in an application for habeas corpus, that every possible ground of complaint has been considered and ruled. This would cast on the court an impossible burden. Such matters as are considered by the Supreme Court in its judgment are finally decided for the High Court. But this will not preclude an applicant from later raising a new ground even though that ground might have been, but was not, put forward on the first application.

Indeed, in his judgment Walsh J, who analysed the habeas corpus provisions of the Constitution in the same way as did the then Chief Justice, explained the material provisions of Article 34 of the Constitution (at p. 167) in the following terms:

The subsection of Article 34 referred to provides that: ‘The decision of the Supreme Court shall in all cases be final and conclusive’. In my view, Article 34.4.6° refers to the decision of the Supreme Court in a particular case and means that there shall be no appeal available in any court from that particular decision.

Walsh J then went on to explain that the decision of the Supreme Court on a habeas corpus application was final only in relation to the particular complaints or matters considered by the High Court and that the constitutional imperative directed to every High Court judge to investigate and reinvestigate a complaint of illegal detention does not involve an appeal from the decision of the Supreme Court where the applicant offered grounds which had not been considered or ruled upon by the Supreme Court in an earlier application. In the Woods’ case the Supreme Court expressly disclaimed that they were deciding on the legality of the detention of a particular individual but confined themselves to a ruling on the particular complaints made by the applicant or adverted to in the High Court. In the present case this is clearly not the position. The Court of Criminal Appeal upheld the totality of the judgment and verdict of the trial court and not merely a particular or limited issue.

Again, it would seem to me, that the reliance placed by Mr Pringle on the decision in Kelly v. Ireland [1986] ILRM 318 is misplaced. Certainly there are similarities between the facts in Kelly v. Ireland and the present matter. Edward N. Kelly had been convicted of robbery in the Special Criminal Court in 1978 and in the course of his criminal trial he sought to have a written statement signed by him excluded from consideration by the court on the grounds that it had been given as a result of unlawful violence used against him by members of the gardaí. The court rejected those allegations and ruled that the statement had been freely made and was admissible in evidence. Subsequently, Mr Kelly instituted proceedings against Ireland and the Attorney General claiming damages for the assault alleged to have been committed upon him as a result of which the statement was said to have been made. In the civil action the defendants contended that the particular issue as to whether or not the gardaí had assaulted Mr Kelly had already been determined by a court of competent jurisdiction, that is to say, in the Special Criminal Court and could not be reopened in other proceedings. Obviously, such a plea of issue estoppel arising from a finding in a criminal case must be unusual as in the absence of pleadings it would be difficult to identify particular issues as distinct from the overall issue of guilt or innocence. Perhaps the circumstances in which a statement is obtained would be one of the few examples of an issue estoppel deriving from criminal proceedings at first instance. In the proceedings brought by him, Mr Kelly did not seek to set aside his criminal conviction or the sentence imposed on him but merely sought damages for the assault which he claimed had been made on him by the gardaí in the course of their investigation of the charges brought against him. However this involved challenging the correctness of the decision in the criminal proceedings as to which O’Hanlon J at p. 330 commented as follows:

Apart altogether from the applicability of the concept of issue estoppel in the circumstances of the present case, I would also hold, as did the House of Lords in Hunter (upholding, in this respect, the decision of the Court of Appeal in McIlkenny), that in the absence of special circumstances, an effort to challenge the correctness of a decision made by a court of competent jurisdiction against a party in the course of a criminal trial, by means of civil proceedings instituted by such person after that decision has been made, should normally be restrained as an abuse of the process of the court.

It is true that O’Hanlon J went on to consider the fresh evidence which Mr Kelly sought to adduce to defeat the plea of issue estoppel with a view to determining first, whether it was of such a character as ‘changes the whole aspect of the case’ and secondly, whether it was evidence which could by the exercise of reasonable diligence have been made available at the previous hearing and thirdly, whether it was ‘well capable of belief in the context of the circumstances as a whole’.

Whilst I would respectfully agree with the approach taken by O’Hanlon J, insofar as he was considering the right of a litigant to pursue a civil remedy in civil proceedings, I would not agree with such an approach in a case such as the present, where the purpose of the civil proceedings is to reverse the judgments of the criminal courts. Moreover, even if the course taken by O’Hanlon J was applied in the present proceedings, it would transpire, I believe, that the case which Mr Pringle seeks to make is based partly on legal arguments which were always available to him and his advisers and partly upon an analysis of facts and documents, which were available to Mr Pringle or his advisers at the time of the criminal proceedings.

It may be ironic but it does seem to me that the decision of the Supreme Court on which the defendants understandably rely, that is to say, Hardy v. Ireland (above) may, indirectly, give some support to the argument advanced by the plaintiff.

Leonard Hardy was convicted in February 1991 of an offence under s. 4 of the Explosive Substances Act 1883. He sought leave to appeal from the Court of Criminal Appeal who treated that application as the hearing of the appeal. On 22 June 1992 the appeal was refused.

Subsequently, Mr Hardy applied to Flood J under the habeas corpus provisions of Article 40.4.2°(2) of Bunreacht na hÉireann. Most of the grounds relied upon in support of the habeas corpus application had already been argued unsuccessfully in the Court of Criminal Appeal. There was, however, at least one additional ground and that was the claim that s. 4(1) of the Explosive Substances Act 1883 was inconsistent with the 1937 Constitution and accordingly not carried forward into the legal system created thereunder. Flood J rejected the application made on behalf of Mr Hardy and that decision was then appealed to the Supreme Court. That court (of which, fortuitously, I was a member) confined the appellant to one ground of argument, namely, whether s. 4 of the Explosive Substances Act 1883 was inconsistent with the Constitution. This limitation was explained in the second page of the transcript of the judgment of the President of the Court, Hederman J, in the following terms:

Leonard Hardy was convicted at the Special Criminal Court on 22 February 1990 on two counts of possession of explosive substances contrary to s. 4(1) of the Explosive Substances Act 1883. He was sentenced to five years’ penal servitude.

Thereafter, he applied to the Court of Criminal Appeal for leave to appeal against his conviction which application was refused on 22 June 1992.

Many grounds were argued before that court — some of which were traversed again in the High Court and which it was sought to have relitigated before this Court. However, at the outset of the appeal the court made it clear that only one ground would be allowed to be argued, having regard to the finality of the judgment of the Court of Criminal Appeal since a certificate to appeal therefrom was neither sought nor given: Courts of Justice Act 1924, s. 29.

It should be reiterated, too, that post trial enquiries under Article 40 of the Constitution cannot be concerned with some alleged legal error or impropriety: State (McDonagh) v. Frawley [1978] IR 131 (at p. 136).

Whilst the defendants rely strongly on the reasons given by the President of the Court for declining to hear the many arguments which counsel sought to put forward on behalf of Mr Hardy, the plaintiff in the present case would be entitled to point out that notwithstanding the finality of the decision of the Court of Criminal Appeal Flood J did hear all of the arguments advanced by the applicant and the Supreme Court, notwithstanding the observations quoted from the judgment of the President, entertained one ground of appeal.

Counsel on behalf of the defendants in the present case, Mr Edward Comyn SC, who was also counsel for the State in the appeal in the Hardy case, explained this apparent inconsistency by saying that it was his recollection that the court permitted the appeal on the particular ground by way of concession only. Counsel’s recollection in that respect is supported by the use of the word ‘allowed’ in the judgment of the President and the use of the word ‘permitted’ in the judgment of Egan J in relation to the agreement which was put forward to the court. This accords with my own recollection of what took place. It was my understanding that the State had not disputed Mr Hardy’s right to make all or any of the arguments put forward before Flood J in the first instance and did not make any complaint on those grounds being reopened on appeal. No formal argument took place in the Supreme Court on the meaning or effect of s. 29 of the Courts of Justice Act 1924. The difficulty facing the appellant was adverted to by the President of the Court and canvassed in debate between him and counsel for the appellant. Apart from the observations in the judgment of the President, there is no written decision on the matter nor, as far as I recall, was any oral decision given save to the extent that counsel for the appellant was informed that he would be permitted only to argue the issue as to the constitutionality of the 1883 Act.

In those circumstances it seems to me that the decision of the Supreme Court in the Hardy case is of only limited value to either party.

However, it seems to me that the terms of the Courts of Justice Act 1924 making the decision of the Court of Criminal Appeal final are clear and inescapable. Moreover, I accept the basic proposition that a conviction secured in a criminal court of competent jurisdiction cannot be set aside or reviewed in civil proceedings least of all in civil proceedings conducted in a court of subordinate jurisdiction.

That decision would dispose of by far the greater part of the plaintiff’s claim herein but not necessarily the entirety thereof. As has already been noted Mr Pringle’s claim raises a challenge to the death penalty imposed on him; the manner in which it was commuted and the circumstances in which it was claimed that the commuted penalty was to consist of 40 years’ penal servitude without remission . There is a distinction to be drawn between the decisions of the courts and the implementation, variation and commutation of the penalties they impose. The effect of the penalty imposed or the manner in which it was to be carried out or the circumstances in which it was altered are not governed by the terms of the Courts of Justice Act 1924. In my view, the plaintiff is not necessarily barred from pursuing a claim for declaratory relief in relation to irregularities or wrongdoings in connection with those matters. One further matter was discussed in the course of the proceedings before me, namely, the alleged wrongful transfer of the plaintiff to different prisons during the course of his trial in the Special Criminal Court. This may be a matter of very much less importance than other issues raised in the statement of claim but again it seems to me distinguishable in its nature from other allegations in as much as a wrongdoing of that nature, if substantiated, would not represent a challenge to the validity of the plaintiff’s conviction so that the civil proceedings in regard thereto would not be barred for any of the reasons already mentioned. To proceed with this matter would require very substantial amendment of the existing pleadings and corresponding restructuring of the relief to be claimed. Accordingly I will order that the proceedings in this Court be stayed until the statement of claim is amended to conform with the judgment herein.

Finally, I would like to add that I believe that the issue and motion before me raise dramatically a matter which is of great public importance. It is for that reason I would welcome an appeal to the Supreme Court and in that event I would be anxious that the Legal Aid Board would be informed that it is my view that whatever legal assistance is required should be made available to Mr Pringle if he seeks it.

 

Clare County Council v Mahon and Quinn

[1996] 1 ILRM 521 Carroll J

This matter comes before me by way of agreed special case on a preliminary question of law arising from the defendants’ plea of estoppel by res judicata. The plaintiffs have sued the defendants who reside in County Clare and are connected to the Ballyvaughan water supply, claiming a series of declarations. The two defendants had refused to pay their water charges from 1983 and 1987 respectively. They claim to be entitled to the benefit of an indenture of lease dated 1 February 1877 (referred to as the 1877 lease) and made between Colonel Charles William White, the lessor, of the one part and the guardians of the Ballyvaughan Union in the County of Clare, the lessees, of the other part wherein certain water works were leased to the lessees and their successors for 999 years from the date thereof.

The declarations claimed are:

1. A declaration that the defendants are required to pay water charges pursuant to the provisions of the Public Health (Ireland) Act 1878 as amended by the Local Government (Financial Provisions) (No. 2) Act 1983.

2. A declaration that the defendants are not entitled to avail of the benefit of the aforesaid lease.

3. A declaration that in the event that the defendants are entitled to avail of the said lease, they are estopped from doing so by virtue of their requests to be connected to the water supply and by paying the water charges thereto.

In paragraph 10 of their defence the defendants having, inter alia, relied upon the 1877 lease pleaded:

Each of the defendants says that the plaintiffs are estopped from maintaining these proceedings by virtue of the fact that in proceedings in the District Court in Ennistymon in the said county, in which the present plaintiffs sought to recover alleged arrears of water charges from one Thomas Collins of Townross or Tonarossa (being one of the townlands named in the 1877 lease) the plaintiffs’ claim was dismissed by order dated 4 September 1987. On appeal to the Circuit Court in Ennis, reserved judgment was delivered on 6 June 1989 dismissing the plaintiffs’ appeal on the ground that the said Thomas Collins, the defendant therein, was entitled to his supply of water free of charge as provided in the said lease. Judgment was entered in the Circuit Court for the said defendant and that judgment remains in full force.

And further by counterclaim each defendant claimed a declaration that he is entitled under the 1877 lease to be supplied by the plaintiffs in the manner set out in the lease with a full supply (of water) of the best and purest description free of charge.

The history of the transfer from the lessees to the plaintiffs is as follows:

(a) The board of guardians was established by the Poor Relief (Ireland) Act 1838 with certain functions and duties as therein set forth.

(b) By the Local Government (Ireland) Act 1898, rural district councils were established and assigned the statutory functions of the boards of guardians.

(c) By the Local Government Act 1925, rural district councils were abolished and their functions transferred to county councils. The duties of county councils as sanitary authorities were performed by boards of public health.

(d) By the County Management Act 1940, s. 36, the powers, functions and duties of the boards of health were transferred to and vested in the relevant county councils.

The 1877 lease demised:

The water supply and water works constructed in the year 1872 … together with the several parcels of land and premises … called ‘the Burren water works’ as therein more particularly described to hold the said demised premises with all future extensions of same for the term of 999 years at the yearly rent of one shilling and provided [inter alia]:

that the lessees and their successors shall at all times keep up a full and proper supply of water of the best and purest description and without any deterioration in quality in the said water works and shall at all times supply same free of charge at the houses and places where the same is now supplied and shall in particular reasonably and fully supply with same the several tenants and inhabitants in the townlands and their sub-denominations of Muckinish, Bishop’s Quarter, Acres, Dangan, Tonarossa, Lough Rask and Clareville free of charge and will make all necessary extensions for the purpose….

The lessees also covenanted, inter alia, for themselves and their successors not to:

at any time during the term assign, demise or otherwise alien or dispose of the said water works or any extension of same or part with the possession or working of same but will at all times hereafter work and manage the same AND FURTHERMORE that the said lessees or their successors shall and will maintain in perfect and complete working order, repair and condition the said Burren water works and every part thereof and all improvements, alterations and extensions to be effected therein or in connection therewith….

The proceedings relied upon by the defendants were District Court proceedings entitled the District Court, District Court Area of Ennistymon, District No. 12, between the county council of the County of Clare, plaintiffs, and Thomas Collins, defendant, in which proceedings the plaintiffs claimed to recover from the defendant, Thomas Collins, the sum of £135 arrears of water charges for water supplied to the defendant and which were claimed as a simple contract debt. This claim was dismissed on the merits by the District Court on 2 September 1987. By notice the plaintiffs duly appealed to the judge of the Circuit Court at Ennis against the dismiss. The appeal came on for hearing on 15 November 1988 when, after a full hearing, judgment was reserved. On 2 June 1989 the learned Circuit Court judge delivered a reserved judgment in which he held against the plaintiffs and by order of that date the appeal was dismissed and the order of the District Court was affirmed. It is the order of the Circuit Court made in those proceedings (herein referred to as the Collins proceedings) which is relied on by the defendants in their plea in the present case.

In the course of the hearing of the Collins proceedings, counsel for the plaintiffs furnished the Circuit Court with written legal submissions dealing with the following:

Lack of privity of contract; no public trust; alternatively, that any public trust had fallen into disuse and, charges were in accordance with the statutory provisions; estoppel of the defendant by payment of water rates; invidious discrimination against other citizens of the county; and that the supply contended for did not exist at the time of the lease.

Further submissions were made in the course of the hearing by counsel for the plaintiffs concerning, inter alia, the effect of s. 78 of the Local Government (Financial Provisions) (No. 2) Act 1983, (referred to as the 1983 Act) and s. 81B enabling the charges to be made; estoppel; and that the 1983 Act overrode any question of a charitable trust and further relying upon constitutional arguments based upon the inequitable effect and discrimination against other ratepayers in the county.

The defendant, Mr Collins, gave some evidence in relation to his and his ancestors’ title to the property and so far as he was aware of it, the history relating to the nature and extent of the water supplied to that property. He paid water rates or charges to the county council despite his being aware that some deed granted free water to the people of the townland but when, after investigation, he eventually procured a copy of the deed, he thereafter refused to pay any water charges to the county council.

Counsel for the defendant, Mr Collins, submitted that the 1877 lease was a deed of public charitable trust under seal giving a supply of water to the inhabitants of the area free of charge and cited numerous authorities in support of his submissions.

A reserved judgment was delivered on 2 June 1989. Unfortunately the original is not available but the attendance by Mr Shaw, solicitor for Clare County Council, has been agreed as a note of the judgment. It states as follows:

Mr Pat Nicholas appeared on behalf of Mr Collins and John Shaw, solicitor, appeared on behalf of Clare County Council. The judge opened his decision by apologising for the lateness of same but referred to the large number of issues raised in what was effectively a District Court appeal, which was rather unusual.

He said that the appeal concerned the decision by the district justice to refuse a claim by Clare County Council for £135 arrears of water rates which the county council claimed was due by the defendant. He stated that the case raised many substantial and important points and he agreed with counsel, Mr Lee, who said that an important matter such as the existence or otherwise of a public charity should properly be brought by a declaratory action in the High Court and that he felt he was somewhat inhibited in dealing with the matter because of the fact that it was brought by a District Court appeal through no fault of the parties. Obviously the matter arose as a fairly simple case of arrears of rates and grew into something much more serious.

He indicated strongly that matters like this should be brought by declaratory action to the High Court with notification to the Attorney General.

The defence raised by Mr Collins was that he was entitled to the benefit of a public charity set up in the late nineteenth century by the governors of Ballyvaughan Water Works and the successors in title were Clare County Council. The relevant portion of the lease in which the defendant’s case rests was that the lessees shall at all times keep and supply free of charge at the houses and places where the same is now supplied in the Baronies of Muckinish, Bishop’s Quarter etc. for the supply of water and make necessary extension thereto for same etc.

The arguments raised by Mr Michael McMahon in his written submissions which the judge found extremely helpful were:

(1) Since no privity of contract existed between the defendant and the maker of the lease the defendant was not entitled to enforce same. The judge indicated that this begs the question of whether the lease be made a public trust in which case it was not necessary to have privity between the parties.

(2) Secondly, Mr McMahon argued that if the lease did create a trust same had demised [sic] over a period of time as it had fallen into disuse.

(3) Thirdly, that the defendant was estopped from taking the point at this stage as he had over several years made payment of rates, and

(4) That there would be invidious discrimination against other water rate payers if the lease was upheld as a charitable trust.

The judge said that with regard to point (1) he accepted that the case quoted by Mr Lee In re Allen: Hargreaves v. Taylor [1905] 2 Ch D 400 at p. 406 showed that public functions such as the supply of water are in a legal sense charities although not public.

The judge indicated that in the present case the works to the specific class of persons were on all fours with the decision in that case and he accepted that the supply of water to the specific class of persons in this case created a public charity. He stated that the development of law recently had taken a turn against charities unless there was an express intention to create a gift and he accepted that there was a gift created in these circumstances and in spite of the recent developments against charities he felt compelled to hold that this was a gift.

The argument was raised by Mr McMahon that the fact that the deed was a lease for a fixed term indicated that it was not given as a full gift as such, but the judge did not accept this. He referred to a photograph of the fountain in Ballyvaughan which quite clearly stated that it was set up as a gift and while he accepted that this was not evidence as such it appeared to him that the matter was treated as a gift at the time of its making and since.

He referred to the statutory provisions which it was argued by Mr McMahon take precedence over the trust and that the trust should be read subject to same. The judge indicated that he did not accept this argument. He did not see why the county council could not take subject to the existing trust. The wording of the statute was said by Mr McMahon to be construed on the basis that the price presently being paid was nil and that there was authority in statutes to increase that price as the county council required. The judge argued that while he admired the ingenuity of the argument he thought it was made more from ingenuity than conviction and he did not accept the argument.

The judge said he had some difficulty with the estoppel argument in that the defendant did pay his water rates for some years without complaint and he said that his evidence on the point was less than convincing and that the defendant had knowledge of the existence of this agreement but, however, he felt that the existence of the trust was an important matter and should not be set aside lightly. He therefore agreed with the decision of the district justice and affirmed the order. On affirming the order he stated quite clearly that the matter was to be regarded as limited to a specific District Court appeal between the parties and had no further effect. He indicated that he considered the matter might be better litigated in a declaratory action in the High Court rather than by bringing proceedings in the District Court.

The court is asked to determine the issues raised by paragraph 10 of the defence by way of a preliminary issue and in particular to determine the following:

(a) Are the plaintiffs estopped by res judicata from maintaining these proceedings or any part thereof?

and

(b) If relevant, having regard to the answer to (a) to what extent are they estopped and what is the nature and basis of the estoppel?

Since the issue of estoppel was raised by the defendants the onus of proof lies on them.

Mr Lee SC for the defendants submitted when a final decision has been given on a concrete issue by a court of competent jurisdiction, it will preclude the same issue from being raised by either party or their privies before any other court whether of higher or lower jurisdiction.

He submitted that the defendants in this case and Mr Collins in the previous case were claiming identical rights and therefore there exists privity of title and interest between them. Since the plaintiffs are the same in both cases and the subject matter is the same the plaintiffs should be estopped otherwise they could re-litigate this question with a succession of defendants.

Alternatively, he submitted the judgment of the Circuit Court was a judgment in rem which binds everyone.

On the question of privities he cited Carl Zeiss Stiftung v. Rayner and Keller Ltd (No. 2) [1966] 2 All ER 536 per Lord Reidf at p. 550 and Lord Guest at p. 566. A lower court can bind a higher court (Marginson v Blackburn Borough Council [1939] 2 KB 426).

He relied on North-West Water Ltd v. Binnie and Partners [1990] 3 All ER 547 a case in which a water authority employed a firm of consultant engineers to build an underground tunnel link between one river and another. An explosion in the valve house killed six people and injured others. A number of victims or their personal representatives brought an action against the water authority, the contractors and the firm of engineers. At the trial the judge held all three defendants to blame and apportioned liability. On appeal, the Court of Appeal held the firm of engineers was wholly liable.

The water authority in separate proceedings against the engineers claimed for damage to the tunnel system and also claimed the issue of negligence had been decided in the first case. It was held that where an issue for all practical purposes had been decided in a court of competent jurisdiction the court would not allow that issue to be raised in separate proceedings between different parties arising out of identical facts and dependant on the same evidence since not only was the party seeking to re-litigate the issue prevented from doing so by issue estoppel but it would also be an abuse of process to allow the issue to be re-litigated. It followed that since the issue of negligence had already been determined against the consultant engineers in the first action they were estopped from denying negligence and further it would be an abuse of process if they were to be permitted to deny negligence. The defence denying negligence was struck out.

In particular Mr Lee relied on a passage in the judgment of Drake J at p. 552 where he said:

Much of the argument before me turned on the limits which should be put on the application of issue estoppel. Consideration of the authorities reveals two schools of thought on this. One approach is what I will call the broad one which holds that the true test of issue estoppel is whether for all practical purposes the party seeking to put forward some issue has already had that issue determined against him by a court of competent jurisdiction even if the parties to the two actions are different. The conflicting approach is to confine issue estoppel to that species of estoppel per rem judicatam that may arise in civil actions between the same parties or their privies.

The judge came down in favour of the broader approach to issue estoppel saying at p. 561:

I find it unreal to hold that the issues raised in two actions arising from identical facts are different solely because the parties are different or because the duty of care owed to different persons is in law different.

Mr Lee distinguished two cases where the plea of res judicata did not succeed, Reamsbottom v. Raftery [1991] 1 IR 531 where the plaintiff was neither party nor privy to an earlier action and Lawless v. Bus Éireann [1994] 1 IR 474 where the plaintiff was not represented in earlier proceedings. He said the plaintiffs in this case were plaintiffs in both cases and did have the opportunity to and did in fact present their case in both the District Court and the Circuit Court. The subject matter in the Collins case and in this case is identical and therefore the plea of res judicata ought to succeed.

Mr Lee submitted the only issue is the deed and whatever the learned Circuit Court judge said, he could not interfere with the issue estoppel.

In relation to the argument that the decision is a decision in rem Mr Lee referred to Spenser-Bower and Turner on Res Judicata (2nd ed.) at pp. 213–214 and pp. 229 et seq:

Since a judgment in rem stops anyone in the world from disputing it and enables anyone in the world to take advantage of it, it follows that a person relying upon a decision of this kind is not concerned with any identity of parties or privies.

In Wakefield Corporation v. Cooke [1904] AC 31 which concerned proceedings taken by an urban authority under the Private Street Works Act 1892 (ss. 6, 7 and 8) to compel owners of premises to do private street works in a street descriptively named Sludge Lane, it was held that the determination by a court of competent jurisdiction that the street is a highway repairable by the inhabitants at large is a judgment in rem and conclusive as to the status of the street and the question whether it is so repairable is res judicata in any future proceedings under these sections. There a whole machinery was created by which the question of whether or not a street is repairable by the parish was to be determined by the particular tribunal set up for the purpose. This decision is in contrast with an earlier decision, R. v. Hutchings (1881) 6 QBD 300 in which it was held on appeal that the adjudication of the justices that the street was a highway repairable by the inhabitants at large was beyond their jurisdiction which was only to make or refuse the order for the expenses claimed and did not estop the local board from claiming expenses subsequently.

R. v. Hutchings was not overruled in Wakefield Corporation v. Cooke as claimed by Mr Lee. In fact the Earl of Halsbury specifically said at p. 35 of the report that the case was rightly decided.

Mr Sweetman SC for the plaintiffs submitted that there has been no judgment in rem. He too relied on R. v. Hutchings and Wakefield Corporation v. Cooke. He said there was no jurisdiction in the Collins case to make a determination in rem. The jurisdiction was to determine liability for the contract debt sued for and any findings about the effect of the deed would not suffice to create an estoppel of any nature and certainly not a judgment in rem.

The jurisdiction to be relied on is that of the District Court which is summary and limited to determining liability for the contract debt (as in R. v. Hutchings).

Under the Local Government (Financial Provisions) (No. 2) Act 1983, s. 8, a charge for water rates is recoverable in default as a simple contract debt in any court of competent jurisdiction.

Mr Sweetman also submitted that where rates are concerned a judgment as in this case does not give rise to res judicata. In Kildare County Council v. Keogh [1971] IR 330 it was held by the Supreme Court, inter alia, that the plaintiffs were not estopped from making the claim for payment of rates notwithstanding a judgment against them in 1958 when they sought to recover rates, since the issue in the 1958 action was the liability of the defendants for rates in respect of a period of occupation distinct from the period at issue. It was further held that the doctrine of estoppel did not operate to prevent a party from making submissions in support of a particular interpretation of a statute.

Walsh J in the course of his judgment, having held that the interpretation of s. 11(2) of the Electricity (Supply) (Amendment) Act 1930 by the learned trial judge in 1958 was erroneous, said at p. 341:

The question which now arises upon the defendants’ claim of estoppel is whether having obtained the benefit of what I would consider to be an erroneous interpretation of s. 11(2) of the Act of 1930, the defendants and all subsequent occupiers of these premises are not merely entitled to retain the benefit of that error but are also entitled to have all questions relating to the liability of the occupier of these premises decided as if s. 11(2) had been correctly interpreted.

At p. 342 he said:

The fundamental question for decision in the present case is the construction of the statutory provision. As I understand it in law there can be no estoppel as to the construction of a public act of the legislature. Any litigant in any court is quite entitled to submit what he believes to be the true construction of a statutory provision….

The matter of the particular claim adjudicated upon in the earlier proceedings before O’Byrne J cannot be reopened with a view to setting it aside. The present proceedings, however, are different proceedings which are based on a different claim relating to a period following that which was the subject matter of the decision of O’Byrne J.

At p. 343 he said:

… once the question of the interpretation of a statute is concerned, a contemporaneous construction in favour of one party in one claim does not prevent the other party from seeking the opposite construction in another claim. Matters of the construction of public statutes are matters which can be decided only by courts of competent jurisdiction and can never properly be the subject of concessions or admissions by one party or the other in litigation.

Mr Sweetman also argued that for an estoppel to arise there must be mutuality. There must be the same parties and it must be reciprocal. He too cited Lawless v. Bus Éireann and Reamsbottom v. Raftery. The essence of these decisions is that a litigant who is not a party or privy to an action and therefore unrepresented and not able to formulate the defence or to call his own evidence is not estopped by a finding of negligence.

It must be observed in this case that while the plaintiffs are the same and the issues about the deed of trust are the same, the defendants themselves are not bound by the result of the Collins case since they had no part in the conduct of the Collins defence. If the case had gone the other way, they would have been properly entitled to say they were not bound by the decision. That they chose to adopt the result of the Collins case is beside the point. There is no mutuality where it is claimed the plaintiffs are bound but the defendants clearly are not.

In relation to statutory duties, Mr Sweetman submitted that the plaintiffs are required by statute to charge. If this were a case of res judicata, this would have the effect of repealing the statute, which is not possible. He cited Dublin Corporation v. McGrath High Court 1978 No. 340 SS (McMahon J), 17 November 1978. In that case it was held that representations by a planning inspector (who was subsequently dismissed) that there would be no objection by the planning authority if the defendant completed a building (which he did) did not create an estoppel. The planning authority could not be bound by any representations of its agent to act illegally in the breach of the Planning Acts. If a statutory authority acts ultra vires that does not create an estoppel.

On the question of whether statutory provisions override a charitable trust, this is a matter of statutory interpretation and cannot be res judicata (see Kildare County Council v. Keogh).

In my opinion, Mr Sweetman’s arguments prevail. There was no estoppel in rem. The District Court jurisdiction was limited to hearing the claim for a simple contract debt and did not have jurisdiction to make a finding about the water supply leading to an estoppel. Regarding issue estoppel, the claim for water rates belongs to a special category where no estoppel arises as between one year and the next. In addition there is no mutuality where the defendants clearly are not bound. There can be no estoppel which would preclude the plaintiff from pursuing their statutory duty or from arguing the interpretation of a statute.

Accordingly, the first question must be answered no. The second question does not arise.

Zurich Bank v McConnon

[2011] IEHC 75

JUDGMENT of Ms. Justice Dunne delivered the 31st day of 2012
The respondent herein obtained judgment against the applicant in the sum of €32,266,470 by order dated the 4th March, 2011, perfected on the 9th March, 2011.

Particulars of demand and notice requiring payment were sent to the applicant on or about the 5th September, 2011. The sum due on foot of the particulars of demand and notice requiring payment was not paid by the applicant. A bankruptcy summons was applied for by the applicant and was issued on the 7th November, 2011, and was served on the applicant on the 11th November, 2011.

A notice of application to dismiss the bankruptcy summons dated the 24th November, 2011 was issued by the applicant returnable for the 16th January, 2012. Following an exchange of affidavits between the applicant and the respondent the matter came on for hearing before me on the 6th June, 2012.
The Issues
A number of issues have emerged arising from the exchange of affidavits between the parties herein. In addition, an issue was brought to the attention of the parties by the Court and their assistance was sought in relation to the issue raised. In general terms the issues raised by the applicant can be set out as follows. First, the applicant has indicated that he appealed the judgment and order of the High Court in which judgment was obtained against him. Given that there is an appeal extant, the applicant contends that the bankruptcy summons should be dismissed. The second issue related to proceedings brought by the applicant challenging the constitutionality of the Bankruptcy Act 1988. The contention is that in the light of those proceedings the bankruptcy summons should be dismissed or at least stayed. A further point has been raised as to the authority of the deponent of the respondent’s affidavit seeking the issue of a bankruptcy summons to swear the affidavit. The final issue raised by the applicant related to the fact that no reference was made in the grounding affidavit seeking the issue of a bankruptcy summons to the fact that a receiver had been appointed by the respondent. It is a fact that a receiver was appointed pursuant to a deed of mortgage and charge dated the 21st December, 2007, by a deed of appointment dated the 28th October, 2010. The applicant has described the receiver so appointed as a receiver by way of equitable execution but the applicant is a lay litigant and is clearly confused as to the correct term to be used to describe the receiver. Overall the applicant has contended that the application for a bankruptcy summons is an abuse of process and he has challenged the bona fides of the respondent in seeking the issue of a bankruptcy summons. The final issue relates to the timing of the presentation of the bankruptcy petition having regard to the provisions of s. 11 of the Bankruptcy Act 1988.

The applicant herein had sought legal aid in respect of these and other proceedings but had not obtained such assistance by the time of this hearing. Notwithstanding that, I felt it was inappropriate to adjourn the proceedings further to await the outcome of his application in that regard.
The constitutional proceedings
A number of the issues raised the applicant can be dealt with briefly. One of the issues relates to a challenge brought by the applicant to the constitutionality of the Bankruptcy Act 1988. Those proceedings were commenced by the applicant as plaintiff against the President of Ireland, An Taoiseach, Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Commissioner of An Garda Síochána and the respondent herein. An application was brought by the respondent herein to dismiss the claim in those proceedings. That application came on for hearing before the High Court (Kelly J.) and those proceedings were dismissed by order of the Court on the 23rd May, 2012.

Kelly J. in his judgment set out the background to those proceedings which is common to these proceedings and the basis of the application to dismiss and the reasons for the dismissal for those proceedings. Reference was made to the fact that the applicant had appealed the decision of Birmingham J. and it was pointed out that a stay on execution of the judgment of Birmingham J. pending the determination of his appeal was sought by the applicant from the Supreme Court. That application for a stay of execution was refused on the 8th July, 2011. In the light of the fact that the proceedings commenced by the applicant seeking to challenge the constitutionality of the Bankruptcy Act 1988, have been dismissed, there is no basis for the dismissal of the bankruptcy summons by reason of any challenge to the constitutionality of the Bankruptcy Act 1988
The authority of Mr Murrav
The second point made by the applicant relates to the authority of Richard Murray to swear an affidavit on behalf of the respondent. The applicant stated “this bankruptcy summons is invalid based on the fact that it is a requirement on behalf of the petitioning creditor that a statement be included by an officer of the company authorising a named person to swear the grounding affidavit on behalf of the company. In this case no such statement from any officer of Zurich Bank has been lodged with the court verifying that Richard Murray has any authority to swear the bankruptcy affidavit or indeed any affidavit on its behalf’. There is no such requirement. The provisions of the Rules of the Superior Courts provide that:-

“A bankruptcy summons may be granted to a company or other body corporate upon the affidavit of the secretary, director, or other person duly authorised in that behalf.”
The affidavit grounding the application for the issue of a bankruptcy summons was sworn by Richard Murray who averred as follows:-
“I am portfolio asset management solicitors to the plaintiff and I make this affidavit on the plaintiff’s behalf and with its authority from facts within my own knowledge, save or as appears and where so appearing I believe the same to be true.”
There is no basis whatsoever for the assertion made by the applicant herein and accordingly I am satisfied that this does not provide any ground to have the bankruptcy summons dismissed.
The appointment of a Receiver
Complaint is made by the applicant to the effect that the grounding affidavit should have referred to the fact that a receiver was appointed by the respondent over his property. The applicant first raised this as an issue in his affidavit sworn herein on the 24th November, 2011. He expanded on this issue in a subsequent affidavit sworn herein on the 16th January, 2012, in which he complained that the creditor had not revealed all relevant facts in that it was stated in the affidavit seeking the issue of the bankruptcy summons that no form of execution had issued in respect of the debt and it was asserted that this was completely untrue as a receiver had been appointed. An applicant for the issue of a bankruptcy summons is obliged under the provisions of O. 76, r. 11(1) of the Rules of the Superior Courts to swear, inter alia, “that no form of execution has issued in respect of such debt and claims to be proceeded upon …” Appointment of a receiver pursuant to a power contained in a deed of mortgage and charge is not a form of execution in respect of the debt. It is to be noted that the appointment was made prior to the date upon which judgment was obtained by the respondent against the applicant. There is, having regard to the affidavits sworn by the applicant herein, some confusion in his mind as to the distinction between a receiver by way of equitable execution and a receiver appointed under a deed of mortgage and charge. A receiver by way of equitable execution could only be appointed following a judgment obtained by a creditor and it seems to me to be clear from the affidavit sworn by the applicant herein that he has misunderstood the distinction between a receiver appointed under a deed of mortgage and charge and a receiver by way of equitable execution. The applicant in his affidavit referred to a decision of the Supreme Court, Ryley v. Taaffe [1932] I.R. 194, in which a debtor summons was dismissed on the grounds that the affidavit leading to its issue was irregular in omitting to set out the fact that a receiver by way of equitable execution had been appointed on behalf of the creditor over the debtor’s property. That is not the position in this case. Therefore, I am satisfied that the applicant is not entitled to the dismissal of the bankruptcy summons in this case on the basis that the affidavit grounding the application to issue the summons did not refer to the fact that a receiver had been appointed. Such a receiver is not appointed as a form of execution on foot of a judgment.
Appeal to the Supreme Court
The provisions of s. 8(6)(b) of the Bankruptcy Act 1988, have been considered in a number of judgments, notably in the decision in the case of Minister for Communications v. M W [2010] 3 IR 1. McGovern J. at p. 4 of his judgment in that case stated:-

“There are a number of legal authorities dealing with applications to dismiss a bankruptcy summons and the principles which apply where an applicant shows cause as to why he should not have been adjudicated a bankrupt.
In the matter of a bankruptcy summons by St. Kevin’s Company against a Debtor, (extempore, Supreme Court, 2ih January, 1995) the Supreme Court expressed the view that the correct interpretation of s. 8(6)(b) of the Act of 1988 was that the High Court should not undertake an investigation into the merits of the case once it was satisfied that an issue arose on the summons. In those circumstances, the Supreme Court stated that it was mandatory for the court to dismiss the summons if it was satisfied that an issue arose between the parties, and the issue would have to be litigated separately outside the bankruptcy process.”

He went on to note at p. 8 of the judgment:-

“The respondents say that the applicants cannot say with certainty that the debt is due to them where the issue of whether the order for costs is enforceable by the applicants has yet to be finally determined by the Supreme Court. I reject this submission. The High Court has adjudicated on this issue and no stay has been granted on that order. The costs sought from the applicants are costs in the High Court and Supreme Court which have been taxed and are no longer amenable to review. In the absence of a stay on the High Court order directing that the order for costs is enforceable, it seems to me that I should consider whether or not there is a reasonable prospect of success in the appeal against that order. In my view, there is not, and I do not think that the appeal gives rise to an “issue” which would arise for trial within the meaning of s. 8(6)(b) of the Bankruptcy Act 1988.”

A number of points arise from the passages cited above. The first point to note is that the fact that there is an appeal to the Supreme Court on the judgment or order of the High Court does not of itself give rise to an “issue”. When an order is made and no stay of e ecution has been granted in respect of that order, the order is enforceable. That includes the issue of a bankruptcy summons. The second point to note is that the High Court should not undertake an investigation into the merits of the case once it was satisfied that an issue arose on the summons. The third point to note is that in considering whether an issue has arisen it is appropriate to consider whether or not there is a reasonable prospect of success in the appeal against the order.
On reading the affidavits of the applicant herein, it seems to me that the principal argument being made by him as to the success or otherwise of his appeal relates to allegations of fraud, misrepresentation and illegality which were not made in the hearing before Birmingham J. and in respect of which the applicant wishes to adduce new evidence in the course of his appeal. The applicant has not identified the new evidence in any detail and has not explained why it was not possible to refer to this evidence in the hearing before Birmingham J. The question of new evidence and the reliance on issues that could have been relied on before Birmingham J. was raised in the constitutional proceedings brought by the applicant and considered by Kelly J. in the judgment referred to above. Kelly J. considered the fact that issues now sought to be raised by the applicant could have been raised by him by way of defence to the summary proceedings and in the course of his judgment, Kelly J. considered in detail the rule in Henderson v. Henderson [ 1843] 3 Hare 100. He also dealt with the question of new evidence. Having set out a number of averments from Mr. Murray on behalf of the respondent and from the applicant, he went on to conclude that the material said to comprise the new evidence was before the court when Birmingham J. heard the application for summary judgment. He added:-

“In these circumstances, I am of the view that this executive summary, which he now wishes to ventilate, is not new evidence for the purposes of this application. It was available to his counsel and the court when the Bank’s application for summary judgment was heard.”
He then concluded it was not necessary to consider further the question of new evidence. The same position pertains before me. Given the matters relied on by the applicant herein and having considered the affidavits sworn by the applicant and on behalf of the respondent and in particular, having considered the matters now raised by the applicant, I could not conclude that there is evidence before me to establish that there is a reasonable prospect of success in the appeal against the order of Birmingham J. Accordingly, there is not an “issue” which would arise for trial within the meaning of s. 8(6) (b) of the Bankruptcy Act 1988, insofar as the matters relied on by the applicant herein are concerned.
That leaves one issue to be concerned and that relates to the time limits in relation to the presentation of a bankruptcy petition. I now propose to consider that issue.
Section 11 of the Bankruptcy act 1988.
The final issue to be considered relates to the provisions of s. 11 of the Bankruptcy Act 1988, which provides:-

“1. A creditor shall be entitled to present a petition for adjudication against a debtor if-
(c) the act of bankruptcy on which the petition is founded has occurred within three months before the presentation of the petition …”

The issue that has arisen for consideration relates to the requirement that the act of bankruptcy should have occurred within three months before the presentation of the petition. What happens if, as in this case, there is an application to dismiss the summons? At the beginning of this judgment I set out some of the relevant dates. Thus, the bankruptcy summons was issued on the 11th November, 2011, and was served on the applicant on the 11th November, 2011. The notice of application to dismiss the bankruptcy summons was dated the 24th November, 2011 and was returnable for the 16th January, 2012, and subsequently the application to dismiss the bankruptcy summons came on for hearing before me on the 6th June, 2012.
The question therefore arises as to when a petition may be presented by a creditor. That gives rise to a consideration of the phrase “act of bankruptcy” and when it can be said that an act of bankruptcy has occurred. For that purpose it is necessary to consider the provisions of s. 7 of the 1988 Act which provides:

“7(1) An individual (in this Act called a debtor”) commits an act of bankruptcy in each of the following cases-
(a) if in the State or elsewhere he makes a conveyance or assignment of all or substantially-all of his property to a trustee or trustees for the benefit of his creditors generally;

(b) if in the State or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or any part thereof;

(c) if in the State or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon, which would under this or any other Act be void as a fraudulent preference if he were adjudicated bankrupt;

(d) if with intent to defeat or delay his creditors he leaves the State or being out of the State remains out of the State or departs from his dwelling-house or otherwise absents himself or evades his creditors;

(e) if he files in the Court a declaration of insolvency;

(f) if execution against him has been levied by the seizure of his goods under an order of any court or if a return of no goods has been made by the sheriff or county registrar whether by endorsement on the order or otherwise;

(g) if the creditor presenting a petition has served upon the debtor in the prescribed manner a bankruptcy summons, and he does not within fourteen days after service of the summons pay the sum referred to in the summons or secure or compound for it to the satisfaction of the creditor.”

It will be seen that the act of bankruptcy at issue in this case is that contained ins. 7(1)(g), namely, the failure of the debtor within fourteen days after service of the bankruptcy summons to pay the sum referred to in the summons or secure or compound for it to the satisfaction of the creditor. It should also be noted that an application by a debtor under the provisions of s. 8(5) of the Act should be made within fourteen days from the date of service of the bankruptcy summons. The applicant in this case has complied with that time limit.
In the circumstances the question that has to be considered is whether the three month period referred to ins. 11 of the Act continues to run where an application to dismiss the bankruptcy summons is before the court or as contended for on behalf of the respondent, whether the three month period does not commence unless and until the debtor’s application pursuant to s. 8(5) is determined by refusing to dismiss the summons.

Very helpful written submissions were furnished to the court on behalf of the respondent in this regard and reference was made in the course of those submissions to Robb on the Law and Practice of Bankruptcy and Arrangements in Ireland. In a commentary related to s. 115 of the Bankruptcy and Insolvency (Ireland) Act 1857 which provided that: “no person shall be liable to be declared a bankrupt by reason of any act of bankruptcy committed more than six months prior to the filing of the petition of the bankruptcy” it was stated as follows:-

“Should a debtor served with a debtor summons not comply with the requirements thereof within the time limited, or if, having applied to dismiss the summons, he fails in his application, then he will have committed an act of bankruptcy, which is complete upon the expiration of the limited time, or from the date of the order dismissing his application, but any petition for adjudication founded on such act of bankruptcy can only be presented by the creditor suing out the summons, and must be presented within six months of that date.”
Hunter, writing in Northern Ireland Bankruptcy Law and Practice (1984) about the provisions of law applicable in Northern Ireland, in 1984, since changed, at para. 5.50, stated:
“The hearing of the application to dismiss the summons will invariably take place after the date for compliance with the summons. The court has no power to extend the time limited by the summons for compliance with its requirements. It seems clear, however, that if the summons is dismissed by the court no act of bankruptcy will have been committed. If the summons was not dismissed, there is some doubt as to whether the date of the act of bankruptcy is at the expiration often days after the service when the debtor has failed to comply with it or at the later date when his application to dismiss is rejected. Under the corresponding statutory provisions in the 1869 Act (Eng.), but relying on a rule of court which has no counterpart in Northern Ireland, the Court of Chancery Appeals in ex parte Wier declared that where a person who is really indebted to another in the required sum is served with the debtors summons and does not comply with it within the prescribed time after service, the act of bankruptcy is complete on that date, notwithstanding a pending application to dismiss the summons. However it is doubtful if this decision would be followed in Northern Ireland. It conflicts with a dictum of Millar J. in Re. Drumgoole and the wording of s. 78 of the 1872 Act is inconsistent with that construction.”
In the decision in Ex parte Weir (1871) L.R 6 Ch. App. 875, an individual had been adjudicated bankrupt and an issue was raised as to whether the adjudication bad where the act of bankruptcy occurred more than six months before the presentation of the petition for adjudication? In that case an application had been made to dismiss the summons. There was a provision for the giving of security pending which the summons would be stayed until the court dealing with the matter had reached a decision. On the last day for giving security the appellant by consent obtained a further order postponing the time for perfecting the security. The security never was given and thereafter a petition for adjudication was filed. One of the issues that arose was that under the rules then existing, the effect of given security was to act as a stay on the proceedings and the argument related to whether or not time could run during the stay of proceedings. Mellish L.J. at the outset identified the question before the court in the following terms:-
“The question is, was the petition presented within six months of the completion of the act of bankruptcy? If the act of bankruptcy was complete on the expiration of three weeks from the service of the summons, the petition for adjudication was too late; but if the act of bankruptcy was not complete until the debtor made default in giving security in compliance with the order of the registrar, the petition for adjudication was in time.”
The court set out the provisions of s. 6(6) of the Act of 1869 which is in similar terms to s. 7 of the Bankruptcy Act 1988, and then referred to other provisions similar to the provisions of s. 8(5) of the Bankruptcy Act 1988.

Mellish L.J. then continued at p. 878 as follows:-

“This section unquestionably enables the debtor, if in compliance with the rule he makes an affidavit denying the debt, to obtain the decision of the registrar, and if the registrar decides against him, and he gives security if required, the decision also of a competent court, as to the existence of the debt; and although the section does not in terms say how or when the proceedings in bankruptcy are to be stopped, it is certainly absurd to suppose that the proceedings in bankruptcy are to go on until the question whether there is or there is not a debt has been determined. Now this object may be obtained either by holding that where an application is made to the court within the 21 days to dismiss the summons, the completion of the act of bankruptcy s postponed until that application has been disposed of, or by holding that though an act of bankruptcy had been committed, if there is a real debt to the prescribed amount, no petition for an adjudication can be presented, or by holding that though an act of bankruptcy ahs been committed and though a petition for adjudication may be presented, yet that no order of adjudication can be made. We do not think that any other section of the Act throws any material light upon the proper construction of this section and if the question had depended upon the Act alone, we should have had great doubt what the proper construction was; but we are of opinion that, where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have been made by the Lord Chancellor under the authority of the Act, and if we find that in the rules any particular construction has been put on the Act, that it is our duty to adopt and follow that construction.”

Mellish L.J. subsequently referred to the bankruptcy rules and noted the provision to the effect that: “a debtor shall not be adjudged bankrupt on a petition … where such debtor shall have applied for the dismissal of such summons …” accordingly it was held by the court that the act of bankruptcy was complete on the expiration of the period specified in the summons and that the timing for presentation commenced on that date. The reasoning for taking that view was expressed as follows:-
“… because if no act of bankruptcy could have been committed, or no valid petition for adjudication presented, it was wholly unnecessary to provide that the debtor should not be adjudicated bankrupt.”
Hunter, in the work referred to above, commented that he doubted that a similar approach would be adopted in Northern Ireland and it was submitted to me that the position would be the same in this jurisdiction as there is no similar provision contained in O. 76 of the Rules of the Superior Courts. Further, it was submitted that the approach taken in Wier was one which should not be followed given the criticism of that decision by the House of Lords in the case of Jackson v. Hall [1980] 1 W.L.R. 118. That was a case which considered the construction of a statute and in the course of the judgment in that case the dictum of Mellish L.J. in Re. Weir was doubted. Lord Fraser of Tullybelton at p. 129 stated:-
“It was made by the Lord Chancellor under s. 73(3) of the Agriculture Act 1947, as amended, and was also subject of a negative resolution by either house: see s. 108(1). It does not, therefore have the express approval of parliament. The fact that it was made by the Lord Chancellor does not invest it with the authority that it would have if it had been approved by the holder of that office in his judicial capacity. The Order has, in my opinion, no greater weight than if it had been made by any other Minister acting under statutory authority and it merely gives effect to the views of the Minister, or of his department, as to the effect of the Act. It ought not, in my opinion, to be treated by the courts as an aid to construction of the Act. A view to the opposite affect was expressed by Mellish L. J. in In Re. Wier, ex parte Wier (1871) L.R. 6 Ch. App. 875, who said at p. 879:-
“… where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have been made by the Lord Chancellor under the authority of the Act, and if we find that in the rules any particular construction has been put on the Act, … it is our duty to adopt and follow that construction.”

In my opinion that statement is erroneous, at least in relation to rules like those of 1976, which have not been affirmatively approved by Parliament, and it should not be treated as authoritative in relation to such rules.”

I was referred to the decision in Re. Drumgoole (1887) 21 I.L.T.R. 32. Millar J. in that case at p. 33 made the following observation:-
“I scarcely thought that it would have been necessary at this period of time to promulgate from the bench, as a matter of practice, that upon a motion to dismiss a debtor’s summons the person who served such notice was the proper person to move that motion and state his case, or that I should assign any reason for that practice, but so it is, although it admits of a very plain statement and very adequate reason in support of that statement as follows: all that the Act of Parliament itself, as distinguished from the General Orders, required the summoning creditor to do was ‘to serve in the prescribed manner a debtors summons requiring the debtor to pay a sum due of not less than £20’ and when the proper evidence of the service of the summons in the prescribed manner should have been filed, the case of the summoning creditor would have been complete for affecting in due course an act of bankruptcy by the creditor if no step had been taken on the part of the debtor to prevent or interfere with that course, such as by a notice of motion grounded on the necessary affidavit, as in the present case, to dismiss that debtor’s summons;
and the 19th General Order in express terms provides that ‘when a debtor [as in the present case] files the above mentioned affidavit, the time shall be fixed by the officer at which the application for the dismissal of the summons shall be heard by the court, a notice thereof in the prescribed form shall be given by the debtor, three days before the day so fixed [in manner as therein], and in default of the debtor giving such notice, or in default of his appearing before the court at the time fixed, his application for the dismissal of the summons shall be dismissed.”

Miller L.J. went on to observe as follows:-

“It is only necessary, therefore, to state generally that it lies upon the debtor upon whom the debtor summons has been served and who has served the notice for dismissal as directed by the 191h General Order, which is by way of appeal from the acts of the various officers of this Court, in the same manner as in every other case in which a notice of motion is served, to open his case in order that the court may be enabled to deal with the motion as directed by the 80th section of the Bankruptcy (Ireland) Amendment Act 1872, upon the necessary assumption that, if that notice and the documents relied upon in support of such notice should not prove sufficient to displace a debtor’s summons as served, an act of bankruptcy by the debtor will in due course, necessarily be established against him, and after this declaration it shall not be said in this Court, especially by a regular practitioner in it, that the established practice has been that the summoning creditor should begin and restate what is already upon the files of this court”

Relying upon those passages, counsel on behalf of the respondent argued that they support the proposition that no act of bankruptcy is committed unless and until an application to dismiss a bankruptcy summons has been resolved in favour of the creditor. It was argued that the approach derived from Robb and Hunter represents a sensible interpretation of s. 11(1)(c) of the 1988 Act. In other words it was urged on the court that an act of bankruptcy occurs only when the debtor has failed to comply with a valid bankruptcy summons. If the validity of the summons has been impugned by way of a motion, it cannot be said that there has been a failure to comply with the summons until such time as its validity has been confirmed by order of the court. Accordingly it was urged on the court that the bringing of an application by a debtor seeking to dismiss the bankruptcy summons effectively stops time running for the purposes of s. 11 (l)(c) of the 1988 Act until such time as the court has determined the application. It was submitted that the alternative to the interpretation was to oblige a debtor who has filed an affidavit in time seeking to dismiss the bankruptcy summons to pay the sum claimed on the summons in order to avoid committing an act of bankruptcy. If that were so an act of bankruptcy would occur on the expiration of fourteen days from the service of the summons irrespective of the challenge to the validity of the summons and ultimately the effect of a successful application to court to dismiss the summons would result in that act of bankruptcy being deemed not to have occurred. It was suggested that this interpretation of the respective provisions of the Act was one which would lead to an absurd situation.
The applicant in dealing with the arguments of the respondent simply relied on the provisions of section 11 (1)(c) of the 1988 Act. He argued that the position set out by the Act was clear. If a debtor does not comply with a bankruptcy summons there is an act of bankruptcy and the creditor must then issue the petition for adjudication against the debtor within the time prescribed in section 11.
Decision
There is no authority in this jurisdiction to assist the court in the interpretation of the provisions of s. 8(5) and s. 11(1)(c) of the 1988 Act and how one interplays with the other. If one was to adopt a literal interpretation of the provisions of s. 11(1) (c) of the 1988 Act, then it seems that the respondent in this case could not present a petition for adjudication of the debtor at this stage. A practical solution to the issue raised in this case would be for a creditor to present a petition notwithstanding that the debtor had sought to have a bankruptcy summons dismissed. If that were done, it would then be necessary for the petitioner to adjourn the petition for adjudication until such time as the debtor’s application to dismiss pursuant to s. 8(5) had been determined. One of the difficulties presented by the facts of this case is that on the presentation of a petition, the petitioner must recite the act of bankruptcy on which the petition is founded (See O. 76, r. 19 of the Rules of the Superior Courts). Can it be said that an act of bankruptcy has occurred in circumstances where the debtor has made an application to dismiss the bankruptcy summons. Obviously, if the debtor is ultimately successful in the application to dismiss, no act of bankruptcy has occurred. On the other hand, if the debtor fails to have the bankruptcy dismissed, the act of bankruptcy must have occurred as a result of the failure to pay the sum due on foot of the bankruptcy summons within fourteen days from the date of service of the bankruptcy summons.

Section 11(1)(c) of the 1988 Act, on its face appears to be clear and unambiguous. It provides for the petition to be presented within three months of the occurrence of the act of bankruptcy. It makes no reference whatsoever to what should occur in the event that an issue is raised as to whether an act of bankruptcy occurred at all. Looking at the Act as a whole and bearing in mind the penal nature of an adjudication of bankruptcy could it be said that on an interpretation of the Act as a whole the provisions of s. 11(1) (c) of the 1988 Act are to be applied strictly without regard to the provisions of s. 8(5) of the Act? It is. inconceivable that a court would allow a debtor to be adjudicated a bankrupt if an application to dismiss a bankruptcy summons was extant. Is it therefore necessary or appropriate that a creditor must present a petition in circumstances where the petition on presentation must inevitably be adjourned to abide the outcome of the debtor’s application to dismiss the summons?

The act of bankruptcy relied on in this case is the failure to pay the sum of €32,266,470 within fourteen days of the service of the summons on the debtor. The summons provided the necessary information that the debtor could be adjudicated on the presentation on the presentation of a petition unless he had applied within the prescribed time to dismiss the summons. The debtor did make such an application. The act of bankruptcy; assuming that the summons was not dismissed, would have occurred fourteen days after the service of the bankruptcy summons, that is, by the 25th November, 2011. A petition has not been presented within three months of that date. Given that it is inconceivable that a petition presented within the time limit provided for in s. 11(1) (c) of the 1988 Act would have been acted upon pending the conclusion of the application to dismiss the bankruptcy summons, even though there is no provision in the 1988 to provide for that contingency, should the. creditor be in a different position to the debtor? In other words, if the debtor’s application to dismiss the summons fails, should the creditor be forced by virtue of the lapse of time to recommence the same procedure again by issuing a further Bankruptcy Summons? It seems to me that looking at the provisions of s. 8. (5) and s. 11 (1 )(c) of the 1988 Act together there is some ambiguity in the legislation. On a literal interpretation of s. 11(1)(c) of the 1988 Act, I think that one would have to say that the creditor in this case would have to begin the process all over again leading to the issue of a further Bankruptcy Summons, leading, no doubt, to a similar application to dismiss. However, I do not think that s. 11 (1)(c) of the 1988 Act can be looked at in isolation from s. 8 (5) of the 1988 Act. Counsel on behalf of the respondent pointed out in his submissions that if there was not, in effect, a stay on the three month period pending the determination by the court of the validity of the Bankruptcy Summons, then the debtor would have to pay the debt due notwithstanding the challenge to the validity of the Bankruptcy Summons in order to avoid committing an act of bankruptcy. As I have said, it seems to me that when one looks at the Act as a whole and at the purpose of the legislation, it would be illogical to interpret those sections as giving what amounts to a stay to a debtor pending the determination as to whether or not an act of bankruptcy has occurred while not affording the creditor what amounts to the same facility in respect of the determination of the time when the act of bankruptcy could be said to have occurred. Accordingly, I am satisfied that an act of bankruptcy has been committed by the debtor. I am of the view that the creditor is now in a position to present a petition on foot of that act of bankruptcy.

 

Carrickfin Trust Ltd v Forker High Court

[2013] IEHC 16

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVRED ON THE 25TH JANUARY 2013:
1. On the 28th July 2011 His Honour Judge O’Hagan, on the application of the defendants in these proceedings, made an order striking out the plaintiffs claims in these proceedings as an abuse of process.
2. The basis for the abuse of process is that the issues between the parties the subject of these proceedings have already been determined between the parties in certain High Court proceedings (Record Number 2001 No. 14570P), but in the sense that in the latter proceedings a settlement was reached on the day that the case was listed for hearing, and the Court (Mr Justice Murphy) was asked to make (1) an order by consent directing that the plaintiff be registered as sole owner of the lands highlighted and marked pink on a map attached to that order (Map 3) – that map having been signed by the solicitors for each of the parties – and (2) an order “striking out the balance of the proceedings”. The order as drawn provides for these two matters, as well as for a no costs order on the undertaking of one of the defendants to pay €4000 towards the plaintiff’s costs which was also part of the settlement arrived at. A recital in the Court’s order states as follows:

“And it appearing that a settlement has been reached herein The parties agree to compromise the matters at issue between them as follows …”.
Thereafter the orders to which I have referred are provided for in the curial part of the order.
3. I should state that the agreed terms of settlement were not presented to the Court in the usual form, namely a document containing the signatures of the parties, duly witnessed also by the parties’ solicitors. No such document appears to have been drawn up and signed. There has been exhibited a copy of a hand-written note of the terms of the order proposed and which is reflected in the Court’s order as drawn. I understand that this may have been a note of the proposed order prepared by junior counsel and which was used by Counsel for the defendants, almost as a speaking note, when informing the Court of the fact that the case was settled. That is the suggested provenance of this note as understood by Mr Gillespie the solicitor appearing for the plaintiff on this application and who was involved in the negotiations leading to the settlement of the proceedings before the Court on the 4th November 2010. However, counsel for the defendants is adamant that it represents faithfully the agreed settlement, and that the order reflects that settlement, including the fact that “the parties agree to compromise the matters at issue between them” as appears both in that document and in the perfected order.

4. In those High Court proceedings the plaintiffs had sought declarations not only that they are entitled to be registered as sole owners of the lands on Map 3, but also of other lands to the east of the lands on Map 3, referred to as Plot 134. The plaintiff’s solicitor has stated on affidavit that it was their understanding of the settlement of the High Court proceedings, and indeed his own, and that they were so advised at the time of the settlement by their Senior Counsel, that the settlement reached on the 4th November 2010 did not preclude them from seeking in other proceedings the remainder of the reliefs claimed in the High Court proceedings, including a declaration that they are entitled to be registered as sole owners of Plot 134. They say that any order striking out the balance of the proceedings is not an order which precludes them from further pursuit in other proceedings of the balance of their claims and that the settlement was never intended to exclude such further proceedings. They have said that the reason behind leaving over the balance of the proceedings to new Circuit Court proceedings was that the rateable valuation of the remaining lands in dispute was within the Circuit Court jurisdiction, and that it was considered preferable to conduct that dispute more cheaply and expeditiously in the Circuit Court. They submit that there can be no question of the new proceedings being an abuse of process on the basis of res judicata since there was no adjudication on the merits by Mr Justice Murphy, and in an event the parties to the new proceedings are not identical to those in the High Court.

5. The defendants contend that the High Court order says what is says and that it is clear that all issues between the parties had been compromised on the basis that the plaintiff would be registered as sole owners in relation to the Map 3 lands, and that thereafter it was not open to the plaintiff to commence fresh proceedings in relation to any other lands which were the subject of the earlier proceedings.

6. In fact, on the very next day following the settlement by which they were declared entitled to be registered in relation to the lands highlighted on Map 3, the plaintiffs commenced proceedings in the Circuit Court by way of Equity Civil Bill seeking to be declared the sole owners of Plot 134, and other related reliefs.

7. The plaintiff relies upon the fact that, because the balance of the proceedings were struck out by consent, there has been no judicial determination in relation to the Plot 134 lands and any other issues in the proceedings, and that accordingly the doctrine of res judicata cannot apply. For that principle to apply it is well accepted on good authority that one of the requirements is that there has been in proceedings between the same parties a final adjudication upon the issues raised in the new proceedings. Clearly there was no adjudication as such on the issues relating to Plot 134 by Murphy J. when upon the case being settled and by consent he made an order for the transfer of the other lands and struck out the balance of the plaintiff’s claims by consent. But it seems clear on the authorities that there can be circumstances where the nature of the case and the terns of the settlement and the order made on foot thereof can be considered to be a final determination of the issues between the parties. It depends greatly on the nature of the case. Whether it is the principle of res judicata which operates, or whether it is rather an estoppel by conduct which prevents the matters again being litigated will depend on the facts of each particular case. By whatever rubric the point is decided, each serves to protect the parties and the courts from abuse of process.

8. It appears to be accepted by the plaintiff that during the course of the negotiations which led to the settlement the plaintiff’s side never intimated to the defendants’ side that while agreeing to a settlement by which the plaintiff would be declared sole owners of the Map 3 lands, and to the balance of the claim being struck out, they were retaining an entitlement to pursue the balance of their claims in further proceedings. While the plaintiff’s Counsel appears to have given them that advice during the course of the negotiations, or possibly after their conclusion, that prospect was never communicated to the defendants’ legal team who believed that all issues in the High Court proceedings were now at an end. Indeed it is worth noting that the High Court proceedings commenced in 2001, and it was only 9 years later that this settlement was reached.

9. The first and second named defendants in the present proceedings were not defendants in the High Court proceedings. The affidavits explain that the reason for that was that it was only on the 3rd November 2010, the day prior to the listing of the case for hearing, that the defendant Togáil Dhun Na nGall Teoranta (the 4th named defendant in the High Court proceedings) transferred portion of its lands to two directors of that company, William Forker and Patrick Forker. Because of that transfer of part of the lands it was deemed necessary to include them as defendants in the Circuit Court proceedings.

10. In essence the issue between the parties on this application boils down (a) as to whether the order of the High Court striking out “the balance of the proceedings” amounts to a final determination of the proceedings such that the plaintiff may not again seek to litigate the balance of the issues in those proceedings, on the basis of the res judicata principles in Henderson v. Henderson [1843] 3 Hare 100, and as followed and explained in the judgments of the Supreme Court in Re: Vantive Holdings [2010] 2 IR 118; and/or (b) whether by their conduct and the nature of the settlement announced to the High Court by consent the plaintiff is estopped from again litigating the issues forming the balance of the proceedings which were all struck out by consent.

11. The counter argument is that there is at a minimum a dispute between the parties as to what the settlement was, and that rather than dismiss the proceedings as an abuse of process at this stage, the Court should permit the proceedings to continue so that evidence can be adduced at the trial of the action in relation to the negotiations leading to the settlement, and so that the judge hearing those proceedings can determine whether it is reasonably to be held that the parties intended the terms of settlement to exclude the pursuit of the balance of the plaintiff’s claims. It is submitted that this Court cannot at this stage be in a position to determine that issue on this appeal as it would be necessary to hear the oral evidence of all involved in the negotiations. On the basis of the evidence before me it certainly appears that the parties are not ad idem on that matter.

12. The defendant submits that even if the plaintiff and its advisers honestly believed that following this settlement it remained open to it to pursue the balance of the claims, it was an erroneous belief as a matter of law, and that the High Court order is very clear in that regard, namely it recited that the parties, as it had been so informed, had agreed to compromise the matters between them on the terms appearing, and the Court went on to strike out the balance of the plaintiff’s claims as agreed.. It is submitted that the importance of finality in litigation would be diminished if the plaintiff was permitted to now revive the balance of its claims on a mistaken belief as to or its understanding of the terms upon which the High Court proceedings were concluded.

13. Whether this case fits neatly into the principles in Henderson v. Henderson can be debated. It can be argued that there was no determination by the Court of the issues which were not part of the settlement. In its classic formulation, the rule in Henderson v. Henderson is to the effect that parties to a litigation must bring forward their whole case, and will not be permitted, save for some exceptional circumstance, to raise in other proceedings any matter which they could have raised but failed to do so, whether because of negligence, inadvertence or even accident. Any such attempt to re-litigate such matters will be restrained as an abuse of process, because there is both a public interest and the litigant’s interest in the finality of litigation. Behind the rule is the interest in the finality of litigation and, in the words of Murray CJ (as he then was) in Re: Vantive Holdings [supra], “ to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings …”. Denham J. (as she then was) expressed similar sentiments in her own judgment in Re: Vantive Holdings when she stated:

“There are exceptional circumstances, in the interests of justice when a matter may be revisited. But the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is that parties should not be exposed to multiple litigation and should have closure on an issue. Also there is the public interest that the limited resources of the court should be used justly and with economy …”.
14. I prefer not to decide this case on the basis of Henderson v. Henderson, given that the issue in the present case is not strictly speaking that the plaintiff in the High Court proceedings failed to raise issues which they could have raised, or bring forward all their arguments. The new proceedings are not seeking to raise new arguments on the same issues which they could have raised in the High Court proceedings.
15. The next question is whether or not the principle of res judicata operates so as to preclude further litigation in relation to the “balance of the proceedings” which were struck out by consent as part of the settlement terms. I have been referred to a number of helpful authorities by each side. I will not refer to them all. Some of these cases have arisen from motor car accidents where each party took proceedings against the other, and an issue arise as to whether a settlement of one case determined liability in the other. The plaintiff has referred to the judgment of Carswell J. ( as he then was) in Trainor v. McKee [1988] N.I.566. In that case each party had sued the other for personal injuries. McKee’s case came on first for hearing but on the day was settled and, by consent, judgment was entered against Trainor for the agreed damages and costs. I should add that there was a plea of contributory negligence in the case. Trainor’s case proceeded at a somewhat leisurely pace, but eventually an order was made directing a preliminary issue be tried as to whether the issue of liability in the case was already res judicata by virtue of the settlement and order made in the earlier proceedings. Carswell J. saw the issue as being “whether the consent judgment involved by necessary implication an acceptance of full liability by Mr Trainor in the action brought by Mr McKee, so as to estop him from claiming in this action that McKee was negligent”. In the case it was contended on the part of McKee that unless it had been expressly agreed that the settlement was made without prejudice to Trainor’s right to claim in respect of his injuries in further proceedings, he must be taken to have accepted full liability by consenting to the judgment. On the other hand it was contended by Trainor that it was for McKee to obtain express agreement to the effect that further proceedings would not be pursued by Trainor if the settlement was to be regarded as one of full liability. Carswell J. agreed that this onus was upon McKee, and that in the absence of express agreement it is generally not possible to determine whether a settlement in such action was based on full liability or took into account a deduction for contributory negligence. He went on to conclude that by agreeing to the settlement of the proceedings brought by McKee, neither Trainor nor his insurers acknowledged that Trainor was fully liable and that it was open to Trainor to pursue his claim against McKee, and that he was not estopped for so doing by the earlier consent judgment.

16. The plaintiff has also referred to the judgment of Keane J. ( as he then was) in the Supreme Court in McCauley v. McDermot [1997] ILRM 486. The facts in that case are very different, but the plaintiff refers to the judgment for its helpful recital of the necessary ingredients for issue estoppel to arise i.e. “(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies”. It is urged in the present case in particular that since the parties in the present case are not the same parties as in the previous case there can be no question of an estoppel arising.

17. The plaintiff has referred also to the decision of the House of Lords in Bradshaw v. McMullen [1920] 2 IR. 412 as authority for the proposition that simply because an order is made by consent following a compromise of the proceedings does not mean that there has been an adjudication on the issues in the proceedings such that an issue estoppel or estoppel by record arises. In his speech, Lord Shaw of Dunfermline stated in this regard:

“ … the overruling consideration is that there should have been a judicium. That is to say, that the merits of the identical dispute between the identical parties, on the identical subject-matter, and on the same media, should have been settled by judgment. The judicial mind should have been applied to it. This is the principle, familiar and fundamental. And it is confirmed by the highest authority. I refer in particular to Jenkins v. Robertson (1) 5 M (H of L) at p. 34, and White v. Lord Moreton’s Trustees (2) 3 M (H of L) at p.60. From the former case I venture to cite this passage from the opinion of Lord Romilly: ‘Res judicata, by its very words, means a matter upon which the Court has exercised its judicial mind, and has come to the conclusion that the one side or the other side is right, and has pronounced a decision accordingly; but when an action of declarator is brought, and a verdict is obtained by the pursuers, and that is set aside, and then an arrangement takes place by which in consideration of the payment of a sum of money, an interlocutor is pronounced for the defenders, and the Court simply registers that interlocutor, without expressing any judicial opinion on the subject, I am of opinion that it is contrary to all principle to consider that that can be treated really as res judicata’”.
18. Interestingly, however, Lord Shaw went on immediately to state:
“It is, I am aware, possible to maintain that a judgment by consent has the qualities of a judicium to which I have referred. There are expressions of opinion in some of the numerous English cases upon the subject. It seems to me that such a doctrine may be founded, not upon the judgment pronounced, but upon the consent with all its limits and to all its extent which preceded the judgment; that, in short, you have there left the region of strict res judicata, and entered the region of a possible wide estoppel.”
This latter passage is interesting because it seems to have relevance to the present case, because, while there is no doubt in my mind that there was never any adjudication upon any issue in the balance of the proceedings by Murphy J. when he made the consent order, and that the principle of res judicata ought not to operate for that reason in relation to those remaining issues, nevertheless there may yet be an estoppel arising by virtue of the consent of the plaintiff to the disposal of the proceedings in this way. It begs the question of course as to what was being consented to and what was understood by both parties as to what was embraced in that consent. I agree that in such circumstances the question leaves the strict area of res judicata and enters the realm of estoppel, and in particular perhaps, estoppel by conduct.
19. The defendants have referred to a judgment of O’Neill J. in Sweeney v. Bus Átha Cliath [2004] 576 in support of their contention that the order made by consent in which a declaration was granted and the balance of the proceedings were struck out is to be distinguished from a case were simply the proceedings are struck out by consent with no further order. In the former case it is submitted that there has been a judicial determination, whereas in the latter there clearly has not, since the judge has simply been asked to strike out the proceedings. I will not set out the very clear and helpful terms of that judgment in detail. But I would refer to a passage on page 583 where the learned judge agrees that “where, by consent, the court pronounces a judgment in favour of a party to litigation, that gives rise to an estoppel in respect of those issues which were necessarily determined for the purpose of that judgment”. He went on to state:

“Where, as in this case, the proceedings are brought to a conclusion by an order simply striking out the proceedings, it cannot, in my view, be said that any judgment is given or that any decision is made. The essence of a strike out of the proceedings is to terminate the proceedings without any recourse to a judicial decision on the claims made in the proceedings. A judgment by consent is wholly different because what happens there is that the court, with the agreement of the parties, moves to an agreed determination on the claims made in the proceedings. Hence, although there is not a judgment which expressly deals with the issues raised in the proceedings, it can, nevertheless, be said that in order for there to be a judgment, certain issues were necessarily determined for that purpose. Nothing of the kind can be said where the proceedings are terminated by a simple strike out. It cannot be said, without further evidence, what the outcome of the case has been between the parties and it cannot be inferred from a strike out what issues are necessarily determined. Hence, in my view, as a matter of principle, an order of the kind made in the Circuit Court proceedings here, although final, cannot satisfy an essential requirement in order to invoke the doctrine of res judicata, namely, to indicate the issues either expressly determined or necessarily determined, so that it can be said that these same issues cannot be litigated again in further proceedings by a party against whom they have been determined.”
20. I respectfully agree with that analysis and, adopting it for the purpose of the present case, it seems to me that I should conclude that while the declaration made by Murphy J. by consent on the 4th November 2010 renders the issue relating to the ownership of the lands identified on Map 3 finally decided for the purpose of the res judicata principle, one cannot say the same in relation to the balance of the proceedings which were merely the subject of a strike out order by consent, and that accordingly the commencement of fresh proceedings in the Circuit Court in relation to the balance of the proceedings is not an abuse of process by reason of res judicata.
21. Nevertheless, on the available evidence it would appear that the plaintiff withheld from the defendant during the negotiations its belief and intention to re-commence proceedings in the Circuit Court in relation to the balance of the claims brought in the High Court, even though it was consenting to and did consent to the “balance of the proceedings being struck out”. The plaintiff kept its powder dry in that regard. It was perfectly understandable for the defendants to have believed, as they say they did, that all the issues between the parties were resolved by agreement and on the basis that orders would be made by the High Court in the terms said to have been agreed in order to dispose of all issues between the parties. In fact they have stated that it was a matter of great relief to them that after such a lengthy dispute between the parties all issues were finally disposed of.

22. Counsel for the plaintiff and Counsel for the defendant were in court when the terms of settlement were announced to Mr Justice Murphy. In my view, if it was the intention of the plaintiff to commence fresh proceedings in the Circuit Court on the very next day, that intention should have been communicated to the defendant’s legal team, and indeed it would have been wise to include in the terms read out to the court something to the effect that it was agreed that this settlement and order was without prejudice to the plaintiff’s entitlement either to continue with the balance of its claims in new proceedings in the Circuit Court, or indeed to have the balance of their claims transferred to the Circuit Court for hearing. In my view that would have been the correct thing to do, and indeed an obvious things to do, given the fact that the plaintiff had already formed the intention to commence fresh proceedings, or had at least been advised by its lawyers that this was permissible.

23. In view of my conclusion that the balance of the proceedings are not caught by the doctrine of res judicata and are not therefore an abuse of process, I will set aside the order of the learned Circuit Court judge, and the make an order that the defendant’s motion to strike out the plaintiff’s claims be struck out. It follows that the action will now proceed. No Defence has yet been filed and delivered on behalf of the defendants. It will be a matter for them to plead as they wish and are advised in relation to the conduct of the negotiations which led to the settlement of the proceedings, to adduce what evidence there may be in that regard, and to raise any issue they see open, as to whether or not during those negotiations anything was discussed, agreed or understood between the parties in relation to whether all issues were thereby resolved and finally disposed of, or whether any issues forming part of the “balance of the proceedings” were understood to be left over for another day, and thereby argue successfully that by its conduct the plaintiff is estopped from further pursuing the issues now again raised.

24. That question cannot be determined on the present appeal as oral evidence will be required. The only issue decided by me now is that the issues forming the balance of the proceedings have not been finally determined by virtue of the strike out order in respect of them which was made by consent on the 4th November 2010, and that the present Circuit Court proceedings are not for that reason an abuse of process, despite the obvious desirability for the parties, and indeed the public interest that there be finality in litigation.

 

Mulrooney v John Shee and Company Solicitors

[2013] IESC 20

Judgment of Mr. Justice Clarke delivered the 9th May, 2013.

 

1. Background
1.1 The background to the issues which underlie these proceedings was a lease entered into on the 16th April, 1994, in respect of 16.68 acres of land and a milk quota of 14,924 gallons. The land is situated at Garryduff, Piltown in Co. Kilkenny. The lease was for five years and expired on the 31st March, 1999. The lessor was a Mr. Edward Malone, the 19th defendant in these proceedings (“Mr. Malone”). Prior to the lease expiring there were discussions concerning a renewal of the lease. It is agreed that the parties entered into a new arrangement and executed a document on the 1st April, 1999 (“the lease”). However, the question of the term of the lease became a matter of significant controversy between various parties. Mr. Malone contended that the renewed lease was for five years. The plaintiff (“Mr. Mulrooney”) said it was for three years. Mr. Mulrooney asserts the terms of the lease were wrongfully altered. Proceedings in the Circuit Court ensued to which it will be necessary to refer in due course.

1.2 Mr. Mulrooney lost the Circuit Court proceedings and damages were awarded against him. An appeal was brought to the High Court but before that case came to be heard, the proceedings were settled.

1.3 On the 17th January, 2011, these proceedings were issued. A statement of claim, dated the 15th March, 2011, was filed. Two separate motions were brought by various of the defendants seeking to have the proceedings dismissed on the basis that the statement of claim did not disclose a cause of action or that the proceedings were frivolous and vexatious. The two motions were heard together and Charleton J. made an order dismissing the proceedings. It is from that order that Mr. Mulrooney has appealed to this Court. Mr. Mulrooney has, at all times, represented himself in these proceedings although, as will become clear, he had the benefit of legal representation in the previous proceedings brought in the Circuit Court. It should also be noted that there was before the Court an appeal against the refusal of a discovery order sought by Mr. Mulrooney.

1.4 In order to fully understand the issues which were before this Court, it is important to set out, in some detail, the procedural history both of the previous proceedings in the Circuit Court and of these proceedings.

2. Procedural History
2.1 The Circuit Court proceedings bore record number 1055/02 and were brought in the Circuit Court on the South Eastern Circuit in the County of Tipperary. Mr. Malone was plaintiff, Mr. Mulrooney was the second named defendant and his son, Mr. William Mulrooney, was the first named defendant. The claim against Mr. William Mulrooney was based on an allegation that the interest which his father originally held in the lease had been transferred to him. I will refer to John and William Mulrooney collectively as “the Mulrooneys”.

2.2 It is also important to note that, on the application of the Mulrooneys, a third party, being Shee & Hawe Auctioneers, was joined to those proceedings. Shee and Hawe Limited (“Shee and Hawe”) are the 18th named defendants in these proceedings.

2.3 When the matter came to trial, the order of the Circuit Court records that the third party issue between the Mulrooneys, on the one hand, and Shee and Hawe, on the other hand, had been settled so that no order was required. The substantive proceedings between Mr. Malone and the Mulrooneys went ahead and the Circuit judge determined that the lease was for a period of five years. The Circuit judge concluded that it followed that the Mulrooneys were liable for the sums which would have fallen due in the fourth and fifth years of the lease which were measured in the amount of €12,436.82.

2.4 The Mulrooneys appealed that decision of the Circuit Court but prior to the appeal coming on for hearing, the proceedings were settled, on the 5th November, 2005, for €13,500 inclusive of costs. That sum was actually paid to Mr. Malone in due course.

2.5 Brief mention should also be made of the fact that William Mulrooney, acting in person, brought proceedings in the Circuit Court in 2008 arising out of much the same matters. Those proceedings were dismissed by order of the Circuit Court on the 11th November, 2008, on the basis that the civil bill failed to disclose a cause of action and that the proceedings were found to be frivolous and vexatious.

2.6 So far as Mr. Mulrooney is concerned nothing appears to have occurred of any legal consequence between the Circuit Court proceedings coming to an end in the latter part of 2005 and his issuing of these proceedings in 2011.

2.7 In addition to issuing these proceedings and serving a statement of claim, Mr. Mulrooney brought a motion, returnable on the 12th April, 2011, before the Master of the High Court in which he sought an order of discovery against John Shee and Company, the first named defendant, in respect of the lease. In a grounding affidavit sworn in support of that application Mr. Mulrooney makes reference to the fact that he had appointed forensic document experts in the United Kingdom, being dissatisfied with previous forensic investigations carried out by An Garda Síochána and in Northern Ireland. The Master refused to grant discovery and Mr. Mulrooney brought the matter before the High Court by motion returnable on the 30th May, 2011. It appears that the Master had refused to order discovery because the Master took the view that these proceedings could not be maintained as a result of the settlement of the previous proceedings in the Circuit Court. In his grounding affidavit in respect of the appeal from the Master’s refusal to order discovery, Mr. Mulrooney stated that he knew “that any case can be re-opened on the production of new evidence which is also supported by confirmation from Revenue that my allegations, including that of the Fraud where the Lease Document was altered, is correct”.

2.8 In addition, motions to dismiss were brought by various of the defendants. One such motion was brought by John Shee and Company, Victor Shee, David Shee, Shee and Hawe and Mr. Malone. That application was successful in that the proceedings against those five named defendants were struck out. Mr. Mulrooney has appealed against that order but only insofar as it relates to John Shee and Company, Shee and Hawe and Mr. Malone. A separate, but similar, motion was brought on behalf of other defendants. That motion was also successful but has not been appealed. It follows that this appeal only relates to the three defendants who successfully sought to have the proceedings dismissed but in respect of whose dismissal order this appeals lies. As the proceedings were dismissed there was, of course, no point in the trial judge considering whether he should direct discovery.

2.9 It follows that there are two issues before this court. The first is as to whether the trial judge was correct in dismissing Mr. Mulrooney’s claim, at least in so far as it relates to the three defendants in respect of whom this appeal is brought, being John Shee and Company, Shee and Hawe and Mr. Malone (“the continuing defendants”). In addition, the question of the appropriateness of ordering discovery is also before the court.

2.10 In order to more fully understand those issues, it is appropriate to say something about certain uncontested facts.

3. Uncontested Facts
3.1 It is first necessary to say something about the Circuit Court proceedings. First, it should be noted that, in a defence filed on their behalf by their then solicitors, the Mulrooneys alleged, at paragraph 5 of that defence, that any lease entered into by either of them was for a period of three years. In addition by motion returnable on the 21st July, 2003, the Mulrooneys applied to the Circuit Court for an order giving them liberty to issue and serve a third party notice on Shee and Hawe. That application was grounded on an affidavit sworn by their then solicitor, Kieran Cleary, who is the second named defendant in these proceedings. The basis for the claim against Shee and Hawe was set out in unequivocal terms at paragraph 4 of Mr. Cleary’s affidavit. Having reiterated the fact that the Mulrooneys maintained that any lease was for a period of three years, it was asserted that “the said Shee & Hawe Auctioneers unilaterally wrongfully and unlawfully altered the term of the said lease from a period of three years to five years without the Defendants knowledge or consent”.

3.2 It is clear, therefore, beyond any dispute that the question of the lease having being wrongfully altered from three to five years was squarely before the Circuit Court at the time when the Circuit proceedings were coming to trial. An order joining Shee and Hawe had been made and the issue of Shee and Hawe and/or others acting in conjunction with them, having unlawfully altered the lease document was squarely before the court.

3.3 It is against that background that the fact that the third party proceedings involving Shee and Hawe were ultimately settled must be judged. It is also against that background that the proceedings between Mr. Malone and the Mulrooneys were settled after the Mulrooneys had lost in the Circuit Court but while their appeal was pending.

3.4 It is also necessary to refer to the facts surrounding attempts made by Mr. Mulrooney to have the lease document in question forensically examined. For reasons which I hope will become clear, it is not necessary to analyse those attempts in great detail. The original document was made available to An Garda Síochána. The evidence currently available would appear to suggest that An Garda Síochána found no evidence of fraud. The original lease document was also made available to a Mr. Brian Craythorne, a questioned document examiner at Forensic Science Northern Ireland. Mr. Craythorne produced a report dated the 20th September, 2010. Mr. Craythorne expresses the view in that report that “all the evidence supports the proposition that the figure 5’s and the figure 2004 have not been altered and thus that the term was originally for 5 years and the end year was 2004”. Mr. Craythorne expressed the conclusion that he could find no evidence that the lease was anything other than for five years ending in 2004.

3.5 As noted earlier, Mr. Mulrooney was dissatisfied with the results of those two investigations and instructed English forensic experts (Ms. Margaret Webb and Mr. Michael Ansell). Neither of those English forensic experts had access to the original lease. Reports from both of those experts were exhibited in affidavits sworn by Mr. Mulrooney. The reports, to varying extents, canvass the possibility that there might have been changes made in the relevant portions of the lease but, quite understandably, both reports make clear that it would be necessary to have an opportunity to examine the original before reaching a definite conclusion.

3.6 Against the background of the procedural history and those facts, it is next necessary to refer to the judgment of the High Court.

4. The High Court Judgment
4.1 The judgment of Charleton J. was delivered ex tempore on the 20th December 2011. Understandably, due to the number of defendants who brought motions, the judgment does not focus on the individual merits of each defendant’s motion for dismissal. Rather, after expressing some general observations on the merits of joining the respective lawyers, the various Garda defendants and the Minister, the judge turns to the lease document at the core of the dispute and the various examinations which were conducted on this document for evidence of forgery. Charleton J. concluded that An Garda Síochána and Mr. Craythorne “examined this original lease not just on the basis of what they could see with the naked eye but with microscope side light and also examined the indentation in the pages underneath; something that is known as ESDA examination and the basis of the resulting conclusion is very strong”. Against this, and in relation to the two examinations outlined in paragraph 3.5 of this judgment, Charleton J. commented generally that “[A] document can be only unsatisfactorily examined by experts looking at a photocopy”.

4.2 At paragraph 4 of his judgment, Charleton J said that he did at one particular point countenance the possibility of a re-examination of the original lease and the invocation of mediation proceedings. However, that option “became highly unattractive when I learnt that the original lease had at the request of the plaintiffs been already examined twice by two independent experts, as I have said, who concluded that there was nothing wrong with the lease and that there was no basis whatever for anyone to claim in the circumstances that there was any forgery.” He therefore dismissed the proceedings against the defendants on the basis that it did not disclose any cause of action.

5. The Grounds of Appeal
5.1 As pointed out earlier, Mr. Mulrooney has represented himself in these proceedings. His notice of appeal is in the form of a lengthy narrative. However, leaving aside matters of form, the substance of the points which are made in that notice of appeal appear to be the following:-

(a) The trial judge should not, it is said, have placed any reliance on the report of Mr. Brian Craythorne because that report “was not to be used for court purposes”;
(b) no full report of the results of the investigation of the lease document by An Gárda Síochána has ever been made available;

(c) the reports of Ms. Webb and Mr. Ansell suggest the possibility of the document having been altered but, it is said that it would be necessary to have the original forensically examined in order for those experts to express a more considered view;

(d) it is said that Mr. Mulrooney was deprived of fair procedures by virtue of the failure of the trial judge to allow him to have the original lease considered by those experts.

5.2 In addition, Mr. Mulrooney swore a detailed affidavit in support of his application to be allowed to have the lease forensically examined. In that affidavit he reiterated the points already made concerning the various forensic examinations and his contention concerning fair procedures. He also sought to place reliance on Article 40.3 of Bunreacht na hÉireann which, of course, obliges the State to vindicate the rights of every citizen. Mr. Mulrooney also filed written submissions which followed much the same lines.
5.3 It is next necessary to turn to the arguments which arose at the oral hearing.
6. The Oral Hearing
6.1 In order to understand the development of the argument which occurred at the oral hearing, it is important to note that the case had been listed for case management on a number of occasions prior to the full hearing of the appeal. It had been emphasised to Mr. Mulrooney that his appeal was an appeal against the decision of the High Court in this case and that it was not open to him to seek to appeal against previous decisions made by other courts and, in particular, the decision made by the Circuit Court in the earlier proceedings to which reference has been made.

6.2 However, it does not, of course, follow that those Circuit Court proceedings were irrelevant to the issues which this Court now has to decide. The fact remains that Mr. Mulrooney was a party to proceedings in the Circuit Court in which the question of whether the lease had been unlawfully altered was specifically raised by him. Counsel for the continuing defendants did make the point in the course of the hearing that an attempt to go behind the settlement of the earlier Circuit Court proceedings was impermissible. That point, although not touched on by the trial judge in his judgment, was raised in the documents filed on behalf of the continuing defendants in their application to dismiss in the High Court.

6.3 In order to assist Mr. Mulrooney (who, spoke through his son, William Mulrooney), the court asked him what he wanted to say concerning the possibility that he might now be unable to raise questions concerning the alteration of the lease in the light of the fact that he had settled previous proceedings in which that same issue had been raised.

6.4 The answer provided was twofold. First, it was said that Mr. Mulrooney believed that he had been badly served by his then legal representatives. Second, it was said that the presence of an allegation of fraud allowed the matter to be reopened.

6.5 In the light of the case as it appeared from the notice of appeal, the written submissions of the parties and the oral argument as it developed at the hearing, it seems that this Court was required, potentially, to consider four questions viz:-

(a) Whether the settlement of the previous Circuit Court proceedings now means that Mr. Mulrooney cannot seek to raise the question of fraud which is at the heart of these proceedings;
(b) whether the allegation of having been badly served by his legal advisers at the time would provide an answer to any difficulties that might arise as a result of issue (a);

(c) whether, by virtue of the fact that a claim in fraud is now brought, Mr. Mulrooney can be prevented, by virtue of the settlement of the previous Circuit Court proceedings, from pursuing this claim; and

(d) in the event that Mr. Mulrooney is, in the light of the answers to questions (a) to (c), prima facie entitled to pursue these proceedings, was the trial judge correct in dismissing the proceedings without giving Mr. Mulrooney an opportunity to have a further forensic examination of the lease document.

Obviously question (d) only arises in the event that the cumulative effect of the answers to questions (a) to (c) is such that Mr. Mulrooney is entitled to maintain these proceedings at all.
7. Discussion
7.1 The starting point of any consideration of the issues which arise has to be to note the legal effect of a settlement of proceedings. As the authors of Delany and McGrath – Civil Procedure in the Superior Courts, 3rd Ed., point out at para. 19-28 “the compromise of a cause of action will extinguish it so that it can no longer be litigated by a party to the compromise or their privies”. The authors cite as an example Mahon v. Burke [1991] I.L.R.M. 59 at p.63.

7.2 As the authors also point out, the rationale for the rule lies in two aspects of public policy, being the need for there to be an end to disputation and the desirability of parties being held to their bargains.

7.3 The basic position is, therefore, clear. Where a party settles proceedings then whatever cause of action was raised in those proceedings can no longer be the subject of litigation. A party has, by entering into an agreement to settle, given up their right to whatever claim might have been made in the proceedings in question.

7.4 It should be recalled that there were, in fact, two separate settlements which led to the ultimate disposal of the previous Circuit Court proceedings. The third party claim brought by the Mulrooneys against Shee and Hawe was, as the Circuit Court order noted, settled so that the claims arising in that third party issue were struck out. In the context of that third party issue, a specific claim had been made by the Mulrooneys to the effect that the lease had been unlawfully altered. Therefore, at the time settlement was reached, the allegation of unlawful altering of the document in question was already alive and before the court. Equally, if such unlawful altering could have been established, it would obviously have provided the Mulrooneys with a defence to the action brought against them by Mr. Malone, for in those circumstances the Mulrooneys could not be held to be bound by a document which they had signed in one form and which had been unlawfully altered.

7.5 Thus, the claim of unlawful altering was alive in the Circuit Court proceedings and would have been available, had it been established, both as against Shee and Hawe, as third parties, and against Mr. Malone as plaintiff. The only other party to this appeal is John Shee & Company, solicitors, who have privity with their client in that there is, in the words of Megarry V.-C. in Gleeson v. J. Wippell & Company Limited [1977] 1 W.L.R. 510 at 515 “a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party”. It should be noted that a similar view was expressed by O’Donnell L.J. in Shaw v. Sloan [1982] N.I. 393. Anything John Shee & Company did was done on behalf of their clients. There is no suggestion whatsoever that John Shee & Company did something independent of their clients as a separate wrongful act in their own interest. If the allegation of an unlawful alteration of the lease had been made out, then John Shee & Company could only be liable if they had been a party to the unlawful altering. Given that their client, Mr. Malone, stood over the five year lease period and sued asserting that the lease was for five years, then there could be no question of any separate wrongdoing on the part of John Shee & Company independent of the interests of their client.

7.6 It follows that all three of the continuing defendants either were parties to the Circuit Court proceedings or had the same interest as parties to those proceedings. It follows that, prima facie, the settlement of those proceedings must be taken to be an agreement on the part of Mr. Mulrooney that he would not again seek to litigate against those parties the allegation which he had made, in those proceedings, to the effect that the lease document had been unlawfully altered.

7.7 That leads to the second and third questions as to whether the reasons put forward by Mr. Mulrooney for seeking to go back on his settlement permit him so to do. It is important, at this stage, to note that the lawyers who represented Mr. Mulrooney in the Circuit Court proceedings were not the subject of any appeal to this Court. It also follows that Mr. Mulrooney’s own lawyers were not represented at the appeal before this Court (because they were not parties to the appeal) and did not, therefore, have any opportunity to have their say on the circumstances which led to a settlement of the Circuit Court proceedings.

7.8 It would, in that context, be wholly wrong for this Court to express any view on the allegations which Mr. Mulrooney makes to the effect that he was not well advised. The fact remains that Mr. Mulrooney had the benefit of legal advice at the time of the relevant settlements and those with whom he was settling were entitled to assume that he was properly advised. In oral argument, Mr. Mulrooney told the Court, speaking through his son, that he had been advised at the relevant time that the allegation of fraud “was not a runner”. This Court cannot comment on whether that advice was given or whether, if it was given, the general circumstances and context in which it was given made it good or bad advice. The fact remains that Mr. Mulrooney obtained advice and acted on it in settling the case. If he has any complaint arising out of the advice which he was given (and I would wish to make it clear that no such finding is made), then that is a complaint which he has against his own lawyers and it does not afford him any legitimate basis for seeking to reopen legal issues which he has previously settled. The parties with whom he settled are entitled to take him at his word that the proceedings are settled and are not to be reopened.

7.9 The second issue concerns fraud. It is true that there are circumstances in which a court will allow a judgment or settlement which is procured by fraud to be set aside so that the underlying cause of action can be litigated. However, the problem which Mr. Mulrooney faces in this case is that the fraud which he alleges now is the same fraud which he alleged in the Circuit Court proceedings. There is no reason in principle why proceedings alleging fraud can not be settled in exactly the same way as any other type of proceedings. The public policy which favours giving effect to settlements and holding parties to their word when they have settled applies just as much in the case of an allegation of unlawful altering of a document as it does in any other type of litigation.

7.10 If there was now a different allegation of fraud which was said to have induced the settlement of the Circuit Court proceedings then the situation might be different. However, Mr. Mulrooney was aware of the allegation of unlawful altering at the time of the Circuit Court proceedings. It was in fact he who had made the allegation. Having made that allegation he thereafter settled the proceedings. He must, therefore, be taken to have settled proceedings including the allegation of unlawful altering, for that allegation was squarely before the court at the time when he entered into the settlement. If Mr. Mulrooney is, as all of the legal authorities make clear he must, to be kept to his word in the settlement, then his word involves him agreeing by his settlement not to re-litigate the allegation of unlawful altering. It follows that Mr. Mulrooney is no longer in a position to attempt to re-litigate that very same allegation of unlawful altering which he has long since settled.

7.11 It is also appropriate to note that, in the course of argument, Mr. Mulrooney placed emphasis on the fact that there might now be new evidence in the sense of the possibility that one or other or both of the English forensic experts might, were they to be given access to the original of the lease document, be able to come up with a definitive view which might support the allegation of unlawful altering. In that context, it does need to be emphasised that the mere fact that new evidence is, or may, be available does not, of itself, justify reopening proceedings which have come to an end. The principle of legal certainty requires that, in the absence of significant and exceptional circumstances in accordance with established case law, proceedings once brought to an end cannot be reopened. It is true that there are limited circumstances in which an appeal court, such as this Court, may admit new evidence which could have a bearing on whether the decision under appeal was correct. However, even in those circumstances a necessary proof is that the evidence could not, with reasonable diligence, have been obtained before the trial giving rise to the judgment under appeal. In the case of issue estoppel (whereby a party is bound by the result of issues decided in previous proceedings) and where a party seeks to re-open a relevant issue, it may be possible for the court to consider further material but only, as pointed out by O’Hanlon J. in Kelly v. Ireland, [1986] I.L.R.M. 318, where credible and vital evidence becomes available and where the evidence concerned “could not, by the exercise of reasonable diligence, have been made available at the previous hearing”. In that regard, O’Hanlon J. was following the test articulated by Goff L.J. in McIlkenny v. Chief Constable of the West Midlands [1980] Q.B. 283.

7.12 This is not, of course, a case of res judicata or issue estoppel. These proceedings were settled and did not come to an ultimate judgment by a court of competent jurisdiction. However, the same overall principle applies. To whatever extent it might be open to a party to go back on a settlement reached because of the availability of fresh evidence (and the circumstances in which such a course of action could be adopted, if it is possible at all, would, undoubtedly, be extremely limited), it could never be open to a party to seek to rely on the availability of fresh evidence which could, with reasonable diligence, have been made available at a time when a previous action involving the same allegation came to a settlement. It seems to me that the discovery of fresh evidence relevant to a case which has settled could never be a ground for seeking to reopen the case if the party, at the time of the settlement, could, with reasonable diligence, have obtained the evidence in question. I should emphasise that it does not follow that, even if it could be established that the evidence was genuinely new in the sense that it could not have been obtained with reasonable diligence at the time in question, a settled case can be reopened. It would be necessary that the case could be brought within the established jurisprudence concerning the circumstances in which issues once settled can be re-litigated. The point which I seek to emphasise at this stage in this judgment is that the courts will never have regard to fresh evidence which could have been earlier obtained by reasonable diligence.

7.13 The original of the lease was, of course, available, if required, at the time of the Circuit Court proceedings. An application could have been made to have that lease made available to an expert of Mr. Mulrooney’s choosing. For whatever reason it was decided not to go down the road of having the lease examined forensically at that stage. However, Mr. Mulrooney nonetheless had made an allegation of unlawful altering.

7.14 Any evidence which might now be obtained as to unlawful altering would clearly be evidence which could just as easily have been obtained at the time when Mr. Mulrooney made his allegation of unlawful altering in the Circuit Court proceedings. Having chosen to settle those proceedings, with that allegation in being, and without having sought then to have the document forensically examined, it is now far too late to seek to raise the issue again with the benefit of forensic evidence.

7.15 The time to have obtained the forensic examination which Mr. Mulrooney now seeks is when he first made the allegation of unlawful altering in the context of the Circuit Court proceedings. Having failed to do it then and having settled those proceedings, he has now lost the right to seek to re-litigate the same question of unlawful altering which he has already settled. He is, in substance, asking not to be taken at his word when he settled those proceedings. The law does not allow him to depart from his word. He is bound by the settlement. The settlement binds him not to seek to re-litigate the issues which were then before the Circuit Court. Those issues clearly included the allegation of unlawful altering. Mr. Mulrooney is precluded from now seeking to make that allegation by virtue of his previous settlement of the proceedings and the trial judge was, therefore, correct to dismiss the proceedings as being an abuse of process.

7.16 Given that Mr. Mulrooney is not, for the reasons set out, entitled to bring an allegation of unlawful altering, it follows that there would be no point in directing that he have an opportunity to have the document forensically examined. It follows that it is unnecessary to consider whether, if circumstances had been otherwise and Mr. Mulrooney were entitled to pursue this case, he would be entitled to have the document in question forensically examined.
8. Conclusions
8.1 For those reasons I am, therefore, satisfied that the trial judge was correct in dismissing Mr. Mulrooney’s proceedings as being an abuse of process. Mr. Mulrooney is seeking, in these proceedings, to re-litigate an issue and a cause of action which he has already settled. The question of unlawful altering was put before the Circuit Court by Mr. Mulrooney and was alive at the time when he settled both the third party issue against Shee and Hawe and the claim brought against him by Mr. Malone. The question of the legal advice given to him which led to that settlement is a matter between him and his then lawyers and is not a matter which can affect the rights of the continuing defendants. While Mr. Mulrooney seeks to make, in these proceedings, an allegation of fraud, it was that very same allegation of fraud by virtue of unlawful altering of the lease that was before the Circuit Court and which he settled. He has, therefore, settled the allegation of fraud and cannot bring it again.

8.2 For those reasons I would affirm the order of the trial judge.

 

Hazel Reamsbottom Plaintiff v. Anthony Raftery Defendant

[1991] IR 532

 

Johnson J.
30th May 1990

In this case the plaintiff brings an action against the defendant claiming damages for personal injuries, arising out of an accident which occurred on the 15th August, 1984, on the Sloan Road near Morganstown, Kinnegad in County Westmeath. In the accident a motor car driven by the plaintiff and owned by her husband, one Kenneth Reamsbottom, collided with and struck a motor car owned and driven by the defendant.
In a Circuit Court action, heard on the 6th December, 1985, and entitled: An Chúirt Chuarda, The Circuit Court, Midland Circuit, County of Westmeath, between Anthony Raftery (the defendant in this action) plaintiff and Kenneth Reamsbottom, defendant, Mr. Raftery claimed damages against the said Kenneth Reamsbottom for damages arising out of the same accident, in respect of which the plaintiff is now claiming damages. His Honour Judge O’Malley, by order of the Circuit Court, found 100% in favour of Mr. Raftery, the defendant in this case. The plaintiff in this action, Mrs. Hazel Reamsbottom, was not a party to the Circuit Court action, was not represented therein and did not give evidence. Evidence in this case from Mr. Kenny indicated that Judge O’Malley stated in court that the plaintiff herein was unable to give evidence owing to the physical injuries which she suffered in the accident, which rendered her unable to make any comment upon what took place.
It was open to the defendant in this action to have made the plaintiff, Mrs. Reamsbottom, a party to the Circuit Court action and indeed it was also open to Mr. Reamsbottom the defendant in the Circuit Court action to have made her a third party to the said Circuit Court action. Neither of these courses was pursued. In this case the defendant pleads in his defence that the plaintiff’s claim herein should be dismissed on the grounds that the same is res judicata. In furtherance of that contention the defendant has relied heavily on the decisions of Gannon J. in Donohoe v. Browne [1986] I.R. 90 and on Gilroy v. McLoughlin [1988] I.R. 44. Having considered these judgments I do not think that Gilroy v. McLoughlin which was decided on very particular facts is relevant or of assistance in this case.
In Donohoe v. Browne [1986] I.R. 90 Gannon J. deals with a case of striking similarity to the present case in great detail, and sets out therein the law regardingres judicata and liability in great detail and also analyses the provisions of the Civil Liability Act, 1961. I adopt the reasons set out by Gannon J. in that case insofar as they apply to the instant case, at p. 99:
“The nature of the rule of estoppel is that it is rather a shield on the arm of the defendant than a sword in the hand of the plaintiff. It follows that the mutuality required is that the conclusive determination is binding on both parties in the proceedings in which it is invoked, but not that the estoppel must necessarily fall to be applied simultaneously in relation to each of them. Res judicata is a matter of pleading to prevent as a matter of justice an abuse of the process of the administration of justice. Of its nature it can be raised properly only as against a party by whom or against whom a judgment has been obtained. That is to say the injustice to be avoided is the apparent disclaimer of a binding court order by the party bound by it. If both parties have previously been bound by a final order, repetitious proceedings for the determination of the same issue between them will be barred. A person who was not party to the earlier judgment and whose claim and rights therefore have not been the subject of judicial determination cannot be barred from invoking the process of the court to determine a claim by him for an alleged wrong not previously investigated.”
It is urged on behalf of the defendant in this case that the facts in the present hearing coincide with those of Donohoe v. Browne [1986] I.R. 90 and that this case therefore should be bound by the decision of Gannon J. particularly insofar as it identifies the position of the driver with the owner of the car, pursuant to the provisions of s. 118 of the Road Traffic Act, 1961, and I quote referring to Mr. McCabe the co-defendant in Donohoe v. Browne at p. 96:
“His position as defendant derives only from his participation in the driving of Josephine Browne’s car with her authority such that by virtue of ss. 118 and 3, sub-s. 5 of the Road Traffic Act, 1961, his and her interests in the proceedings relative to James Donohoe’s claim are identical.”
Mr. Ryan on behalf of the plaintiff on the other hand argued that the facts in this case are quite clearly distinguishable from Donohoe v. Browne [1986] I.R. 90 in that:
1. The plaintiff in this case had not been a party to the proceedings in the Circuit Court and has a cause of action which is quite dissimilar from any cause of action which Mr. Reamsbottom might have as owner of the car, namely a claim for personal injuries.
2. In Donohoe v. Browne [1986] I.R. 90 the co-defendant, Mr. McCabe, who had not been a party to the Circuit Court proceedings, was himself attempting to adopt the Circuit Court proceedings and was relying on them as a shield against a party who had been a party to the Circuit Court proceedings, whereas in the instant case the defendants are attempting to utilise res judicata and s. 118 as a shield against a party who has not been a party to the earlier proceedings.
3. No privity had existed between Mrs. Reamsbottom, and her husband who had been the defendant in the Circuit Court action.
O’Donnell L.J. in his judgment in Shaw v. Sloan [1982] N.I. 393 at 410 indicated, regarding res judicata and estoppel in respect thereof with regard to any particular previous hearing, that:
“The issues must be identical. They must have been decided between the same parties, in the same respective interests or capacities or between a privy of each, or between one of them and a privy of the other. The estoppel must be available to and operative in respect of each party, i.e. it must be mutual.”
And he in that case relied on Ramsay v. Pigram (1968) 118 C.L.R. 271, 276 (High Court of Australia). It was also relied on by Gannon J. O’Donnell L.J. went on further at p. 410 to say:
“Privity means something more than being interested in the outcome. It must involve such interest as would enable the privy to have a voice or say in how the proceedings are, or will be, conducted or concluded. Any other meaning could operate to cause grave injustice to servants or agents, who while not parties to the proceedings, and having no voice in their conduct, could be held to be bound by them.”
Clearly in the Circuit Court proceedings above referred to Mrs. Reamsbottom may have been interested in the outcome but she was not a privy of her husband therein within the definition as laid down by O’Donnell L.J. for she had not such an interest that would enable her to have a voice or say in how the proceedings were or would be or had been conducted or concluded.
Gannon J. in his judgment said that because of the facts of Donohoe v. Browne [1986] I.R. 90 and because of the provisions of ss. 118 and 3, sub-s. 5 of the Road Traffic Act, 1961, the interests in that case of the driver and the defendant were identical and of course this appears to be absolutely logical where the driver is the owner of the motor car for the purposes of driving and for that reason the purposes of determining liability against him. However, I think the distinction can be drawn in this case that despite the fact that it was open to both the defendant herein and Mr. Reamsbottom to have made the plaintiff a party to the Circuit Court case this was not done. Were res judicata or the provisions of the Civil Liability Act, 1961, to be held to provide that the definition of privity, as laid down by O’Donnell L.J. in Shaw v. Sloan [1982] N.I. 393, could have an application, then no privity exists between the plaintiff and her husband in this case. Secondly, despite the fact that it was open to either the defendant herein or the plaintiff to make her a party to the Circuit Court proceedings it was nut so done and therefore were I to hold that the facts in this case were identical to the facts in Donohoe v. Browne [1986] I.R. 90 a situation could arise whereby the plaintiff could be prohibited from bringing her case to court because of the result of an action to which she was not a party and over which she had no control and in which she might not have offered evidence. Quite clearly an injustice could be done if the plaintiff had (a) wished to give evidence or (b) was dissatisfied with the manner in which the Circuit Court case was conducted or wanted to call evidence which was not called before.
It is very necessary not to confuse the fact that Mrs. Reamsbottom despite being married to Mr. Reamsbottom is an individual person and the relationship between herself and her husband should not be allowed to obscure the principles involved. I do not think I could do better than to quote the fears of Megarry V.C. as expressed in Gleeson v. J. Wippel & Co. Ltd. [1977] 1 W.L.R. 510, 516 which were quoted by O’Donnell L.J. in Shaw v. Sloan :
“Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way, and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him. Even if one leaves on one side collusive proceedings and friendly defendants, it would be wrong to enable a plaintiff to select the frailest of a number of possible defendants, and then to use the victory against him not merely in terrorem of other and more stalwart possible defendants, but as a decisive weapon against them.”
Whereas in any given set of circumstances it may very easily be possible to forecast the likely outcome of a case I do not think that the correct interpretation of the law is to prohibit a person from making a claim by relying on the decision of a case to which they were not a party. I therefore reject the defence raised in para. 1 of the defence.

Mount Kennett Investment Company v O’Meara

[2010] IEHC 216

JUDGMENT of Mr. Justice Clarke delivered the 1st June, 2010

1. Introduction
1.1 These proceedings have a long and complex history. So far as relevant to the issue to which this judgment is directed, I will set out that procedural history in some detail in early course. However, in general terms it is important to note that there has already been a full hearing of substantial issues in this case before Smyth J., in which an order for specific performance of a contract for the sale of property was made in favour of the first named plaintiff (“Mount Kennett”) against the defendants (“the Owners”). That order for specific performance was not complied with. Mount Kennett then successfully brought an application to re-enter the proceedings for the purposes of the assessment of damages. At that stage, the second named plaintiff (“Greenband”) was joined because some of the consequential losses alleged to result from the actions of the Owners were said to have caused loss to that company. Nothing turns on that specific matter at this stage.

1.2 In any event, pre-trial procedures followed and the question of the assessment of the damages to which Mount Kennett and/or Greenband might be entitled was listed for hearing. When counsel for Mount Kennett and Greenband had completed opening the case, an application was made by counsel on behalf of the second named defendant (“Mr. Fitzpatrick”) in which it was said that both Mount Kennett and Greenband were debarred from pursuing the claim in damages which was before the court. It should be noted that the claim which was before the court was, in substance, in two parts. Part of the alleged damages claimed related to the failure of the Owners to comply with the order of specific performance. However, another part of the damages claimed related to an allegation of delay on the part of the Owners in complying with the original contract of sale, as a result of which it was said on behalf of Mount Kennett and Greenband that further actions had to be taken to enable a significant commercial development then contemplated to actually take place. That claim for damages for delay was part of the case as had originally been pleaded and was before Smyth J. when the original trial of the action in these proceedings took place. The order made by Smyth J. on the occasion in question simply provided for specific performance. There is no mention of what was to happen to the claim in damages for delay which was already before the court.

1.3 Having considered the application made by counsel for Mr. Fitzpatrick, I ruled that the application in relation to that portion of the damages which resulted from the failure to make specific performance was premature and that there was no basis for dismissing that portion of the action on the opening. However, certain factual issues having arisen as to what, in fact, happened before Smyth J. during the original trial, I directed that an issue be tried as to whether the damages for delay in completion which formed part of the original action, were capable of being pursued at this stage.

1.4 In substance, the argument made on behalf of Mr. Fitzpatrick (and supported by the other defendants) was that the claim for damages for delay, having been before Smyth J., and not having been the subject of an order of the court, must be taken to have now been dealt with, such that it would amount to an abuse of process or a breach of the res judicata rule to now proceed with it. That preliminary issue having been heard, I ruled, some short number of days later, that Mount Kennett and Greenband were not debarred from pursuing the claim in question. I indicated that I would give reasons for coming to that view at a later stage. The purpose of this judgment is to deal with the questions which arose for consideration and to set out reasons for the conclusion reached. I turn first to the procedural history.

2. Procedural History
2.1 The original hearing commenced before Smyth J. on the 17th April, 2007, and continued on the 15th and 16th May of that year. It will be necessary to turn to the events of that hearing in due course. Smyth J. reserved judgment which he delivered on the 21st November, 2007. See Mount Kennett Investments Limited v. O’Meara & Ors [2007] IEHC 420. As appears from that judgment, Smyth J. rejected the arguments put forward on behalf of the Owners, both to the effect that the relevant contract of sale had been frustrated or was impossible of performance and also found that, in his discretion, he would order specific performance rather than damages in lieu.

2.2 The matter was put in for mention before Smyth J. on the 11th December, 2007, at which stage a formal order was made directing specific performance of the relevant contract of sale by the 31st March, 2008. There is no mention of damages in that order. It should be noted in passing that the reason, as appears from that order, for the time lapse between the conclusion of the proceedings and the judgment of Smyth J., was that Smyth J. had been informed that there was a possibility of the parties resolving their differences and he afforded them a reasonable opportunity so to do.

2.3 Likewise, it is clear that the problem which was at the heart of the proceedings was that the Owners had contracted to sell a freehold interest in the relevant property at a time when they did not own that freehold interest, but had contracted to acquire same subject to the consent of the Charity Commissioners. The problem was that the Charity Commissioners were not happy with the purchase price. The reason for the relatively lengthy period for completion specified in the order of Smyth J. was to afford the Owners an opportunity to complete the task of getting in the freehold so as to be in a position to sell it on to Mount Kennett. At the heart of the issues which Smyth J. had to decide was the question of whether the Owners were in a position to acquire that freehold. Smyth J. held that they were, provided that they were prepared to pay an appropriate price, such as would satisfy the Charity Commissioners.

2.4 In any event, the matter next came before the court on the 2nd March, 2009, when Mount Kennett brought an application seeking to have the proceedings re-entered “for the purposes of the assessment of damages for breach of contract and/or damages in lieu of specific performance”. An order seeking to have Greenband joined was also sought, together with an order giving liberty to deliver an amended statement of claim.

2.5 As it happens I had, at around that time, been dealing with a separate case brought by Greenband relating to neighbouring property. In those circumstances it was felt appropriate that I should take seisin of this case (Smyth J. having retired in the intervening period). While not on consent, no significant opposition was put forward on behalf of the Owners to the re-entry application. Certainly no significant argument was addressed as to why the application should not be acceded to. It is worthy of some note that, in the grounding affidavit (being an affidavit of Thomas Dowling), it is said, at para. 3, that “all issues relating to the plaintiff’s claim for damages were left over for further hearing”. No issue was taken at the hearing before me, at which the re-entry of these proceedings was sought, as to the veracity of that averment. In addition, a draft amended statement of claim was exhibited to the affidavit of Mr. Dowling. Leave to amend in the terms of the relevant draft was given. It was clear from that draft that the damages sought to be recovered included both damages for delay in completing the original contract, and damages arising out of the fact that specific performance had not been complied with.

2.6 Thereafter, at the request of the parties, I case managed these proceedings. Particulars of the damages were sought and supplied. Significant and hotly disputed discovery issues arose which included issues relating to documents relevant to the claim for damages for delay. During all of this period no question was raised on behalf of the Owners as to the propriety of Mount Kennett and/or Greenband maintaining a claim for delay damages.

2.7 It should also be noted that there appeared to be something of a falling out as and between the various defendants such that, by the time the case came on for hearing before me, each was separately represented. Indeed, there appears to be separate litigation as and between the defendants which is not, of itself, material to the issue which I had to decide.

2.8 In particular it should be noted that the defences filed on behalf of the Owners makes no reference to a contention that any aspect of the claim is not maintainable in principle, save that that there is reference to an allegation that an agreement was reached whereby certain damages would be waived.

2.9 It would appear that, in the period immediately prior to the action coming on for hearing before me in early March, there was correspondence on behalf of Mr. Fitzpatrick which gave some indication that contemplation was being given to an application of the type with which I was concerned. However, no formal application was made to amend the pleadings or bring that issue before the court by way of motion or otherwise. It was, therefore, with some surprise that I learned of the application to be made on behalf of Mr. Fitzpatrick for the first time when its nature was outlined to me by counsel for Mr. Fitzpatrick after counsel for Mount Kennett and Greenband had concluded his opening.

2.10 Against that background, it is appropriate to turn to the specific issues which arise.

3. The Issues
3.1 There was some debate between counsel as to the appropriate order in which the relevant issues logically arise. Without indicating any concluded view as to that order, I simply set out the issues.

3.2 Mr. Fitzpatrick (backed up by the other defendants) asserts that it is an abuse of process for Mount Kennett and Greenband to now maintain the claim for damages for delay on the basis, it is said, that that claim was before Smyth J., did not form part of Smyth J.’s order, whether by ruling on it or deferring it to further hearing, and that that claim must now be taken to have been dealt with so as to render it an abuse of process to attempt to reactivate it.

3.3 The first significant issue that arises is as to what in fact happened before Smyth J. It is said, on behalf of Mount Kennett and Greenband, that a proposal was put to Smyth J., to which he assented, which amounted in substance to an agreement that there be a split or modular trial. On that basis it is said that it was accepted that the proper course to adopt was that the question of the entitlement in principle of Mount Kennett (who were, of course, at that time the only plaintiff) to a decree of specific performance should be dealt with first. In the light of the decision of the court on that matter then, it is suggested, it was accepted that all questions of damage would be deferred. Damages could, in those circumstances, arise in a variety of ways. First, there were the damages which Mount Kennett claimed in any event for delay in completing the contract. However, in that context, it should be noted that, until the end of the first day of the hearing, the Owners had maintained that the relevant contract was conditional. If that plea had been successful it would, of course, have meant that Mount Kennett would have had no case either for specific performance or for damages. In the event that that defence failed it was, however, suggested on behalf of the Owners that the court should nonetheless decline specific performance because of the difficulties (or impossibility) which the Owners had encountered in getting in the freehold interest. There were, therefore, a variety of possibilities. The court might order full specific performance. The court might order damages in lieu. The court might order partial specific performance (in the sense of requiring the Owners to procure a transfer of a leasehold interest), but also award damages deriving from the fact that the full interest in the property contracted to be sold was not being transferred.

3.4 The problem is that there is no court order either indicating that questions of damages had been deferred or that such damages were to be assessed, which damages would have arisen in any event if, as the court did find, the contract was enforceable. Two sets of questions, therefore, arise. First, what is the proper characterisation of the events that occurred at the hearing before Smyth J.? In the light of that characterisation and in the light of the fact that the court order made by Smyth J. does not make any reference to damages, it is necessary to consider the status of the damages for delay claim which was undoubtedly before Smyth J. In substance, both of those questions are part of the overall question of whether it would now be an abuse of process for Mount Kennett and/or Greenband to seek to claim delay damages.

3.5 The second set of questions concern what has happened since. There is no doubt but that the Owners did not demur from the proposition that the proceedings should be re-entered at a time when it was clear that the basis for that re-entry was that it was said that Smyth J. had agreed to defer damages. This is clear, both from the grounding affidavit and the draft statement of claim to which I have referred. Second, it is equally clear that the issues sought to be relied on, on behalf of Mr. Fitzpatrick and the other Owners, were not raised in any of the defences filed. It was said, on behalf of Mount Kennett, that, in the absence of an amendment to the defence, it was not open to the Owners to raise this issue. There is, therefore, an issue as to whether a defence of type now put forward can be raised although not pleaded. As a fall back position, counsel for the Owners suggested that, if I was against him on that point, he would invite me to amend the defence. Counsel for Mount Kennett and Greenband argued that it is far too late to do that, and that in any event, any such application ought to be refused.

3.6 Having regard to those issues, it seemed that it is appropriate to start with the question of whether Mount Kennett and/or Greenband pursuing a claim for delay damages would, in all the circumstances, amount to an abuse of process. As pointed out earlier, the first question under this heading relates to what actually happened before Smyth J. I, therefore, turn to that question.

4. The Hearing before Smyth J.
4.1 When the issue was first raised in March, there was some question as to whether comments might have been made by counsel in the course of a very brief portion of the hearing before Smyth J., which took place before lunch on the first day, at a time when no stenographer was present. In considering what happened next, it is important to note that the issue was, to a significant extent, sprung on the parties. Counsel who acted for Mr. Fitzpatrick was not, of course, present at the original trial. Some of the other counsel who continued with the case did their best to give me their recollections, but it is entirely understandable that, with the benefit of more time and an opportunity to review the transcripts, counsel now have a clearer recollection of the events that occurred.

4.2 Suffice it to say that, when the matter originally came up, there appeared to be a possibility that comments were made to Smyth J. prior to lunch at a time when no stenographer’s note was taken, which might be material to the issues which I have to decide. However, by the time the issue came to be fully heard it was agreed on all sides that that was not so. Insofar as material to the issues which I have to decide, what happened occurred after lunch and at a time when a stenographer was present.

4.3 The case before Smyth J. was opened by Mr. Ian Finlay S.C., on behalf of Mount Kennett. At p. 13 of the transcript Mr. Finlay turns to the pleadings and, in particular, the statement of claim. He draws attention to the fact that Mount Kennett “is also seeking damages for breach of contract in lieu or in addition to specific performance” (my emphasis). There is then a reference to what is described as a recent judgment of Finlay Geoghegan J. (which while not mentioned by name is clearly a reference to Duffy v. Ridley Properties & Anor reported as to the Supreme Court Appeal in same at [2008] 4 I.R. 282). On that basis, Mr. Finlay suggests that the court should approach the claim by first determining an entitlement or otherwise to specific performance and then, at a second stage, deal with damages. I will return to that passage in due course.

4.4 At p. 22, Mr. Finlay turns to opening the particulars and especially particulars of the damages claimed for breach of contract. Reference is made to p. 97 of the Book of Pleadings which contained details of Mount Kennett’s claim for damages. On reading those particulars (which, while not read into the record of the court, were before the judge and had been read by the judge), it is clear that the range of bases on which damages might be calculated was highly dependent on the view the court took as to specific performance. A number of different models are set out in the relevant replies to particulars. In that context, Mr. Finlay went on to say the following:-

“I do not think there is very much need to open those today in the sense that I am not pursuing the damages issue at this point in the proceedings. But that may or may not be relevant at a later stage depending on what happens.”
4.5 The next matter of some materiality arose at the end of the opening. It should be recalled that there was a gap between the first and second days of the hearing of over a month. The opening continued on that latter occasion. Prior to that, however, at the end of business on the first day, counsel for the Owners had conceded that the contract was not conditional. On that basis, Mr. Finlay’s argument was that, it being accepted that there was an unconditional contract and that it had not been complied with, the onus rested on the Owners to establish any case which they might have as to frustration or impossibility of performance or the like. Clearly this would not have been a correct proposition if damages were to be proceeded with on that occasion for the onus would nonetheless have remained on Mount Kennett to establish damages. Both the judge and counsel for the Owners accepted Mr. Finlay’s argument, such that the Owners went into evidence and, indeed, the only evidence tendered was from witnesses called by the Owners.
4.6 Finally, it should be noted that in the course of the closing addresses, Mr. Simon Boyle, S.C., on behalf of the Owners, made reference to the fact that there had been no evidence as to damages. However, it seemed to me that that debate, and Mr. Finlay’s reply to it, was clearly in the context of the possibility that the court might be persuaded (as the Owners sought) to take the view that damages in lieu of specific performance might be a more appropriate form of remedy than specific performance itself. It did not seem to me that that debate touched in any way on the question of damages for delay.

4.7 Mr. Finlay, Mr. Boyle and Mr. Peter Clein B.L. (who was Mr. Finlay’s junior), gave evidence before me. I have to commend each of those witnesses for the way in which their evidence was given, notwithstanding the undoubtedly difficult circumstances which had arisen. Mr. Boyle accepted that, at the beginning of Mr. Finlay’s opening, the suggestion made by Mr. Finlay that questions of damages ought to be deferred, applied not just to those damages that might arise in lieu of specific performance, but also related to delay damages which would have arisen in any event. Mr. Boyle also accepted that, although there is no note in the transcript of Smyth J. formally accepting Mr. Finlay’s proposal, it was his understanding that Smyth J. had acceded to Mr. Finlay’s suggestion. There is one point on which Mr. Boyle has a different perspective to that of the counsel who appeared for Mount Kennett. I will shortly return to that point. However, Mr. Boyle’s impression, to which I have referred, is confirmed by Mr. Clein’s careful evidence. Mr. Clein indicated that he believed that Smyth J. had said something which indicated acceptance, even though nothing to that effect appears on the transcript. All familiar with court proceedings will be well aware that a transcript does not necessarily convey every nuance that occurs in court. Relevant personnel, including judges, can nod their heads or otherwise act in a way that indicates agreement where nothing is recorded on the transcript.

4.8 I was satisfied that Mr. Finlay put forward a proposition on behalf of Mount Kennett, which was accepted by the judge however indicated, and not demurred from on behalf of the Owners, to the effect that all issues of damages would be deferred. The fact that Mr. Finlay specifically referred to the particulars of damage (which included particulars of damage for delay) but indicated that those issues were not being pursued at that point but might or might not be relevant later seemed to me to give rise to no other interpretation.

4.9 However, it is necessary to return to the point on which Mr. Boyle differs. Mr. Boyle’s evidence before me was to the effect that, by the close of the case, he had felt that the only question of damages which was being deferred was damages in lieu. It was, in my view, understandable that Mr. Boyle might have come to that view. First, it is necessary to return to the initial passage from the opening to which I have already referred. The reference to Duffy is a reference to a case where Finlay Geoghegan J. determined that, where the court directed damages in lieu of specific performance, the court could return to that issue and assess the damages at a second stage. That case had nothing to do with damages for delay which could arise as well as, as opposed to instead of, specific performance. Likewise, the references during closing speeches on the part of counsel were all references to the type of division which occurs when a court decides the question in principle as to whether specific performance lies, but leaves over the question of the calculation of damages in lieu (in the event that such damages are claimed and are considered appropriate) to a later stage. I can well see that the emphasis placed by Mr. Finlay could well have led Mr. Boyle to take the view which he did. Indeed, it seemed to me that Mr. Boyle said as much towards the close of his evidence.

4.10 However, I was not satisfied that anything occurred in the course of the hearing which could reasonably be taken to amount to an abandonment by Mr. Finlay, on behalf of Mount Kennett, of its delay damages claim. Rather, I was satisfied that Smyth J. went along with a proposal for a split trial (which obviously made sense in all the circumstances) where an initial decision would be made as to whether Mount Kennett was entitled to specific performance and all questions of damages, whether they be damages for delay or damages which might arise in lieu or in default of specific performance, being postponed to a further date.

4.11 It is unfortunate that the court order did not reflect that fact. It does seem to me that Mount Kennett must accept responsibility for that fact. Smyth J. had delivered his judgment in November. The matter was back in, in December, for the purposes of making the order. It would have been appropriate at that stage for Mount Kennett to have reminded Smyth J. of the fact that all questions of damages had been left over so that the order could have included some reference to that fact. What the consequences of that failure and how it is proper to characterise it, is a matter to which I will have to return. I should not leave the question of the events which occurred before Smyth J. without noting that it would, of course, normally be the case that any such issues would come back before the judge who had originally dealt with the case in question. It was only in circumstances where that judge had retired that I felt it appropriate to hear evidence as to what had transpired at a previous hearing before another judge. Having reviewed what happened at the hearing before Smyth J., I now turn to the main issue in this application.

5. Abuse of Process
5.1 The central issue which I have to decide is as to whether it is now an abuse of process on the part of Mount Kennett to seek to have delay damages assessed.

5.2 There can be a number of reasons why an issue which arises on the pleadings is not dealt with in a judge’s judgment or a judge’s order. Sometimes the proper inference may be that a particular aspect of a claim has been abandoned such that the judge does not have to deal with it. For example, no evidence may be tendered and no argument addressed at the hearing on the issue in question. On other occasions a party may put forward a range of items of (say) special damage, some but not all of which the judge allows in a judgment. Where rejecting an item of such damage a judge is likely to expressly disallow the particular item and give specific reasons for so doing. However, an item that is not included in the judgment may be subject to an appropriate inference to the effect that the judge did not allow it for some reason or other. Thus, in certain other cases, the reason why a matter is not dealt with in a judgment or order may, by inference, be that it was rejected.

5.3 However, there may also be cases where it is clear from what the judge said in court that the formal order ought to have included a reference to certain matters which do not, for whatever reason, find their way into the written order of the court as perfected. There is ample authority (see Ainsworth v. Wilding [1896] 1 Ch. 673 and Bula Ltd. (in receivership) & Ors. v. Crowley & Anor. [2003] IESC 28) that in such circumstances the court can amend its order so as bring the written order into conformity with what the judge said or intended. For example, if it is clear that the judge awarded damages under five headings, but only four of them appear in the written order, then it could hardly be said that a party would not be entitled to apply to have the order amended to have the fifth and omitted category included. Such cases are not cases where the judge is being invited to re-open a matter finally decided, but rather cases where the judge is being invited to ensure that the written order as perfected conforms with what the judge actually intended on the occasion when the spoken order was made.

5.4 Of course, in the ordinary way, any absence of conformity between what the judge intended and the written order should be brought back before the same judge who will be in by far the best position to determine whether the order correctly conforms with his or her intention. It does not seem to me that it would be just, however, to deprive a party of the opportunity to have a written order corrected because the relevant judge was no longer serving or was otherwise unavailable. For the reasons which I have set out, I was satisfied that it was the intent of Smyth J. that there be a split trial. I was satisfied that part of that intention was that all questions of damages, including questions concerning the assessment of damages for delay which could arise in addition to specific performance, were to be left over to a subsequent hearing. In those circumstances, it seemed to me that, if necessary, it would be open to Mount Kennett to seek and obtain an amendment to the order of Smyth J. of the 11th December, 2007, to provide for an order directing the assessment of all damages on a subsequent occasion.

5.5 Against that finding it is necessary to turn to the central question as to whether the maintenance of the claim by Mount Kennett and Greenband in relation to delay damages is an abuse of process. It was argued on behalf of Mr. Fitzpatrick that this was a case of res judicata. As pointed out in Moffitt v. ACC [2007] IEHC 245 at paras. 3.7 to 3.10, there is a distinction between two types of res judicata. Where an issue has actually been decided by a court of competent jurisdiction in proceedings between the same or necessarily connected parties, no new proceedings can be brought, except in the limited circumstances where the original order can be set aside on the grounds of fraud or the like. This might be described as strict res judicata. However, the rule in Henderson v. Henderson [1843] Hare 100, covers the analogous circumstances where an issue was not advanced in the original proceedings, but where it amounts to an abuse of process to subsequently maintain a claim which should have been brought in the original proceedings. As pointed out by the Supreme Court in A.A. v. The Medical Council [2003] 4 IR 302, the court retains a discretion in such cases to take into account any relevant circumstances necessary for the purposes of assessing whether it truly is an abuse of process to maintain the relevant claim. There is, therefore, a material difference between strict res judicata where the court has no discretion and Henderson v. Henderson abuse where the court has some discretion.

5.6 A claim which was before a court and is not dealt with in the court’s order, needs careful consideration before it is placed in one or other category. If the appropriate inference in all the circumstances of the case is that the issue was considered by the judge and found against the relevant party (even, perhaps, in the absence of an express statement in the judgment or order to that effect), then it seems to me that it would be appropriate to place such a claim in the strict res judicata box. The claim has, by inference, been considered and rejected by a court of competent jurisdiction. It cannot be reactivated without setting aside the original order in material part and that can only be done on the basis of fraud or other similar serious wrongdoing.

5.7 On the other hand, where an aspect of a case is before the court and is not dealt with, it may be appropriate to infer that the relevant party had abandoned that aspect of their claim. In those circumstances it seems to me that, strictly speaking, it is not appropriate to consider an attempt to re-litigate that aspect of the case under the heading of strict res judicata. It would, however, fall under very careful scrutiny under Henderson v. Henderson. The fact that the case had been brought and abandoned would be a very significant consideration leaning heavily against the court exercising any discretion it might have to allow it to be re-litigated. In those circumstances it would seem to me that a case brought and abandoned would face an even greater struggle than a case not brought in the first place.

5.8 However, where, as here, the proper inference to draw is neither that the claim was dismissed or that it was abandoned but rather that the judge agreed that it be deferred, then it is hard to see how it would be an abuse of process to allow it to be reactivated. True it is to say that Mount Kennett should have ensured that the court order included a reference to that deferral and, perhaps, directed an assessment of damages. However, the absence of such a provision in a written court order, where it is nonetheless clear that the judge accepted that there should be a split trial, seems to me to give rise to an altogether separate set of circumstances. It is hard to see how it can properly be described as an abuse of process to reactivate a claim where the intention of the original trial judge was that that claim would be deferred to a further hearing. All that is now happening is that the original intention of the trial judge is being complied with.

5.9 The absence of a provision in the court order recording the judge’s intention has, of course, created the problem. As Mr. Clein pithily put it in the course of his evidence, when speaking of what might have been in the court order:-

“If it was there we would not be here”.
That is true. It may be the fault of Mount Kennett that “it” was not there and that we were, therefore, here. However, that does not take away from the fact that it was Smyth J.’s intention that we be here. Mount Kennett bringing us here cannot, therefore, in my view, be an abuse of process.
5.10 I should deal, before concluding on this issue, with the case of Ford-Hunt & Anor v. Singh [1973] 1 W.L.R. 738 on which reliance was placed by Mr. Fitzpatrick. That case is clear authority for the proposition that a party who does not ask for an inquiry as to damages at a specific performance trial cannot subsequently reactivate a claim for delay damages or any other form of damages that do not depend on new facts occurring after the date of judgment. I have no doubt that had Mount Kennett simply ignored the question of delay damages at the hearing before Smyth J., then the consequences identified in Ford-Hunt would have applied equally to Mount Kennett. It would be too late to reactivate a claim for delay damages which was not pursued at the trial. The proper inference in those circumstances would be that the relevant claim had been abandoned and would be subject to the rule in Henderson v. Henderson so that same could not be reactivated save in wholly exceptional and unlikely circumstances. But this is not such a case. While it is true to say that Mount Kennett did not specifically raise the question of the inclusion in the written order of provision for an inquiry as to damages, that ignores the fact that, for the reasons which I have found, Smyth J. had already accepted that all question of damages were to be deferred to a second hearing. This is not, therefore, a case where the question of damages is simply ignored. It is a case where the judge went along with a suggestion that damages should be deferred. Ford-Hunt does not, therefore, seem to me to be of any relevance to this case.

5.11 I was, therefore, satisfied that no abuse of process such as would disentitle Mount Kennett and/or Greenband from pursuing a claim for delay damages had been established and I was, therefore, satisfied that these proceedings should continue on the merits. In those circumstances, it was unnecessary to deal with the questions which might otherwise have arisen deriving from the fact that the Owners, and in particular, Mr. Fitzpatrick, went along with this hearing through the application to re-enter, all pre-trial proceedings including defence and up to the trial itself, without seeking to raise the issue. Likewise, it was unnecessary to determine whether it is necessary to plead such a matter as an item of defence in order to be allowed to raise it.

6. Conclusions

6.1 For the reasons which I have sought to analyse, I was satisfied that the proper characterisation of what occurred before Smyth J., was that Smyth J. accepted that there should be a split trial with all issues of damages (including delay damages) being postponed to a further hearing. In those circumstances I was satisfied that, notwithstanding the absence of any reference to those matters in the order of Smyth J., it is not an abuse of process on the part of Mount Kennett to now prosecute a claim for such damages.

6.2 The trial of the damages issue will, therefore, go ahead and the claim for delay damages made on behalf of Mount Kennett and Greenband will be determined on its merits.