Pleadings Issues

 

Cases

 

Church & General Insurance plc v. John Moore and; Joseph Briddock

[1996] 1 I.L.R.M. 202

 

 

 

; In connection with replies to notice for particulars in proceedings, O.19, r.7 of the Rules of the Superior Courts provides that:

A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.

This rule differs substantially from the Rules of the Superior Courts dealing with failure to comply with orders for interrogatories and/or discovery.

1. 31, r.21 of the Rules provide that:

If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court for an order to that effect, and an order may be made accordingly.

While the Rules of the Superior Courts do not specifically provide for the striking out of a defence in the event of failure to comply with an order made by the court to provide ‘further and better particulars’ , as is provided in the event of failure to answer interrogatories or make discovery of documents, I am satisfied that a court has an inherent jurisdiction to enforce orders made by it and if there is failure to comply with an order, then in certain circumstances an order can be made dismissing a claim for want of prosecution or striking out a defence.

In the case of Davey v. Bentinck [1893] 1 QB 185 the effect of a rule in exactly the same terms as O. 19, r.7(1) of the Rules of the Superior Courts , was considered by Lord Esher MR and he stated at p. 188 of his judgment:

Order XIX rules 6 and 7 give to the court power in certain cases to order particulars and impose terms, and … this includes the power to add as a consequence that if the order is not complied with in a certain time the action shall be dismissed.

1. 19, r.7(1) and the statement of Lord Esher MR clearly envisage and require that there be:

(1) An order that further and better particulars be provided,

(2) the imposition of terms, and

(3) the provision that if the order is not complied with within a certain time, the action shall be dismissed or the defence struck out.

In this case, the order made on 22 July 1991 did not contain a provision that if the order was not complied with the defence would be struck out but the consent order made on 16 May 1994 did so.

It stated:

By consent it is ordered that the first named defendant do deliver on or before 24 June 1994 to the plaintiff the particulars in writing as ordered by order of this Court dated 22 July 1991 and that in default thereof the defence of the first named defendant be struck out — and that this motion do stand adjourned to Monday, 27 June 1994.

This order was not complied with for the reasons set forth in Mr O’Neill’s affidavit, viz . the appellant’s absence outside the jurisdiction and the fact that he did not return to the jurisdiction until 24 June 1994.

The learned High Court judge made the order on 27 June 1994 striking out the appellant’s defence by reason of the failure to comply with the orders of the High Court.

In my opinion, he was entitled to make such order because of such failure.

However, he placed a stay on such order on the following terms:

 

(a)  compliance with the orders within a period of two weeks, and

 

(b)  paying into court to the credit of the action a sum of £50,000.

The court had no jurisdiction to impose the condition (b).

By order made on 30 July 1990 the respondent’s claim against the appellant had been adjourned for plenary hearing.

In imposing a condition to pay into court to the credit of the action, the sum of £50,000, the court was imposing a penalty on the appellant for failure to comply with the orders of the court.

The inherent jurisdiction of, and the power given by O.19, r.7 to the court is for the purpose of ensuring compliance with orders made by the court.

The requirement to pay into court the sum of £50,000 was not necessary to secure compliance with the orders of the court. That objective had been achieved by the order striking out the appellant’s defence and in ease of the appellant, the stay thereon for a period of two weeks to enable him to comply with the said orders for ‘further and better particulars’ .

The requirement to pay into court the sum of £50,000 was not in any way necessary to secure compliance with the orders for ‘further and better particulars’ and can only be regarded as a penalty imposed on the appellant for his failure to comply with such orders.

The learned trial judge had no jurisdiction to impose such a penalty and the appellant’s appeal in regard thereto must be allowed.

 

 

Claystone Ltd. & Ors v. Larkin & Ors

[2007] IEHC 89 Laffoy J

The defendants’ application to strike out

 

I consider it logical to consider the defendants’ application first, notwithstanding that the plaintiffs’ application was first in time.

 

Order 19, rule 28 provides that the court may order any pleading to be struck out on the ground that it discloses no reasonable cause of action and in such case, or in the case of the action being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed as may be just.

 

Apart from the jurisdiction available under O. 19, r. 28 it is well established that the court has an inherent jurisdiction to stay proceedings. This jurisdiction was explained in the following passage from the judgment of Costello J., as he then was, in Barry v. Buckley [1981] I.R. 306 (at p. 308):

 

“But, apart from order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail …”

Costello J. went on to state that the jurisdiction should be exercised sparingly and only in clear cases.

 

The inherent jurisdiction was considered by the Supreme Court in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425. McCarthy J., with whom the other two judges of the Supreme Court agreed, stated as follows at p. 428:

 

“In Barry v. Buckley [1981] I.R. 306 Costello J. held that the High Court has inherent jurisdiction in an appropriate case to dismiss an action on the basis that, on admitted facts, it cannot succeed. Counsel for the plaintiff has not challenged that decision or the ratio underlying it. The jurisdiction is different from that directly arising from the Rules … where a statement of claim discloses no cause of action or the proceedings constitute an abuse of process of the court, where, pursuant to section 27, sub-section (5) of the Judicature Act (Ireland) 1877, the court may grant a stay so far as may be necessary for the purpose of justice. In Barry v. Buckley Costello J. referred to the notes on that sub-section set out in Wylie on the Judicature Acts. Since the matter has not been debated, I express no view upon the decision in Barry v. Buckley save to comment that applying the underlying logic, a defendant may be denied the right to defend an action in a plenary hearing if the facts are clear and it is shown that the defence is unsustainable. This appears to have been the net effect in the decision in the High Court (Dixon J.) in Dolan v. Neligan (1959) reported in its second phase in [1967] I.R. 247. By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed.

Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought.

 

Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour. The procedure is peculiarly appropriate to actions for the enforcement of contracts, since it is likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract.”

 

In relation to the last comment in that passage, while the usefulness of a procedure which unblocks a wrongful restraint on contracting, for example, by initiating proceedings for specific performance which cannot succeed and registering a lis pendens, cannot be gainsaid, no such consideration is at play here because it is common case that the defendants are bound to develop the Site for the plaintiffs and assure it to them or their nominee. What is at issue from the plaintiffs’ perspective is the house type to be constructed by the defendants. The only real issue from the defendants’ perspective could be the price they are paid for the construction of the larger house.

 

The court’s inherent jurisdiction to strike out was considered more recently by the Supreme Court in Supermac’s Ireland v. Katesan (Naas) Limited [2000] 4 I.R. 273 where the court returned to the theme of the imponderability at pleading stage of what the discovery process and the trial process may ultimately turn up. In his judgment, Hardiman J. stated at p. 277:

 

“There was no dispute between the parties as to the legal principles to be applied in considering this motion. These have been extensively set out in the judgment of the learned trial judge and I need only say that I agree with what she says. The position is aptly summarised in Lac Minerals v. Chevron Corporation [1995] 1 I.L.R.M. 161 as follows:

‘The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiff’s contention.’

This clearly is a very difficult hurdle for the defendants to clear.”

 

In his judgment in the Supermac’s case Geoghegan J. emphasised the importance of the following passage from the judgment of Barron J. in the Supreme Court in Jodifern Limited v. Fitzgerald [2003] 3 I.R. 321:

 

“Every case depends upon its own facts. For this reason, the nature of the evidence which should be considered upon the hearing of an application to strike out a claim is not really capable of definition. One thing is clear, disputed oral evidence of fact cannot be relied upon by a defendant to succeed in such an application. Again, while documentary evidence may well be sufficient for a defendant’s purpose, it may well not be if the proper construction of the documentary evidence is disputed. If the plaintiff’s claim is based upon allegations of fact which will have to be established at an oral hearing, it is hard to see how a claim can be treated as being an abuse of process of the court. It can only be contested by oral evidence to show that the facts cannot possibly be true. This however would involve trial of that particular factual issue.

Where the plaintiff’s claim is based upon a document as in the present case then clearly the document should be before the court upon an application of this nature. If that document clearly does not establish the case being made by the plaintiff then a defendant may well succeed. On the other hand, if it does, it is hard to see how a defendant can dispute this prima facie construction of a document without calling evidence and having a trial of that question.”

 

Geoghegan J. pointed out that, although the issue in the Jodifern case seems to have been abuse of the process of the court, the same principles would equally apply to an issue as to whether there was or was not a reasonable cause of action.

 

The case made by the defendants that the plaintiffs’ claim is bound to fail mirrored their defence, in that it advanced two propositions: that there is no concluded agreement between the parties on the lines which the plaintiff seeks to have specifically performed; and, even if there is, it is unenforceable for non-compliance with the Statute of Frauds.

 

In making the case that the plaintiffs’ claim is unsustainable the defendants referred to the defendants’ contractual obligations under the Deed of Covenant, under which the first defendant undertook to construct two detached dwelling houses, one of which it is acknowledged is to be constructed on the Site and to have a floor area of not less than 1,900 sq. ft. Counsel for the defendants emphasised the provision in the Deed of Covenant in relation to the plans, specification, finish and fit out of the dwelling houses agreed to be constructed which was in the following terms:

 

“The house plans and specification, finish and fit out for each such dwelling house shall be at least to the standard specification for houses of a comparable size which are to be erected on the Property in the course of its development as a residential estate.”

The defendants argued that there was no concluded agreement varying those terms which had been expressly agreed in writing, for a number of reasons.

 

First, they submitted that neither Ciaran Barry nor Michael Larkin were parties to the original agreement and, therefore, they could not vary the terms of the original agreement. I find this argument to be wholly without merit. It is quite clear from the plaintiffs’ case as pleaded that the involvement of Ciaran Barry in relation to the house to be constructed on the Site was with the authority of the plaintiffs and by express agreement between the second plaintiff and the first defendant. Further, the necessary implication from the plaintiffs’ case as pleaded is that Michael Larkin was acting on behalf of the first defendant and on behalf of the corporate defendants. The evidence put before the court on these applications, rather than suggesting that Michael Larkin did not have authority to bind the defendants, suggests the contrary.

 

Secondly, the defendants submitted that there was no agreement as to the varied specification for the larger house and that there was no agreement in relation to the price to be paid to the defendants for construction of that house having regard to the varied specification, finish and fit out. The defendants pointed to features of the evidence on this application which they contended show that the parties had never reached the stage where the price payable for the larger house with the varied specification, finish and fit out had been calculated or agreed.

 

The plaintiffs’ answer to the defendants’ contention that the plaintiffs could not get a decree of specific performance in the absence of an express agreement on the quantum of the increased price was that there was a mechanism for the determination of the price and that the court could specifically enforce the agreement by giving effect to that mechanism. In this regard the plaintiffs referred the court to the decision of the House of Lords in Sudbrook Trading Estate Limited v. Eggleton & Ors. [1982] 3 All E.R. 1. That case concerned the enforcement of a lessee’s option to purchase the freehold reversion at a price to be agreed by two valuers, one to be nominated by the lessor and the other by the lessee, and, in default of agreement, by an umpire to be appointed by the valuers, a minimum purchase price being specified. When the option was exercised, the lessor refused to appoint a valuer, so the purchase price could not be ascertained. The House of Lords held that, where the machinery by which the value of property was to be ascertained was subsidiary and non-essential to the main part of an agreement for the sale and purchase of property at a fair and reasonable price, the court could, if the machinery for ascertaining the value broke down, substitute other machinery to ascertain the price in order to ensure that the agreement was carried out. The plaintiffs relied in particular on the following passage from the speech of Lord Fraser at p. 10:

 

“In the present case the machinery provided for in the clause has broken down because the lessors have declined to appoint their valuer. In that sense the breakdown has been caused by their fault, in failing to implement an implied obligation to co-operate in making the machinery work. The case might be distinguishable in that respect from cases where the breakdown has occurred for some cause outside the control of either party, such as the death of an umpire, or his failure to complete the valuation by a stipulated date. But I do not rely on any such distinction. I prefer to rest my decision on the general principle that, where machinery is not essential, if it breaks down for any reason the court will substitute its own machinery.”

Applying that principle to this case, the plaintiffs contended that the parties agreed the machinery whereby the price of the larger house was to be ascertained: the price of €185,000 was to be increased pro rata by reference to the increase in the floor area of the house. As regards the varied specification and fit out, the evidence adduced by the plaintiffs was that the plaintiffs’ requirements were made known to the defendants. The final tranche of documents setting out the plaintiffs’ requirements had been furnished on 11th December, 2006 and there had been no complaint that the documentation was inadequate or late. While the defendants’ evidence was that no agreement was reached on the varied specification or price, that particular averment, contained in an affidavit sworn by Ciaran Barry on 22nd February, 2007, was not contradicted. In the same affidavit Ciaran Barry deposed to a conversation he had with the electrical contractor in relation to the electrical layout proposed by the plaintiffs and to the fact that the electrical contractor had referred to the job being an “at cost” job on the defendants’ instructions. The plaintiffs’ case on this application, as I understand it, was that the pricing mechanism in relation to the varied specification is based on cost. The ascertainment of the price payable to the defendants for the construction work can be objectively ascertained it was urged. Counsel for the defendants correctly submitted that the plaintiffs have not pleaded an agreement that variations over the standard specification would be priced on a cost basis. However, the dictum of McCarthy J. in the Sun Fat Chan case in relation to the possibility of amending a statement of claim is pertinent to that argument.

 

The question for the court at this juncture is whether it can be predicted with confidence that the plaintiffs will fail to establish a concluded agreement to construct a dwelling house on the Site in accordance with the 2006 planning permission and the plaintiffs’ requirements as set out in the documentation furnished to the defendants at a price which can be ascertained by reference to what the parties have agreed. I am satisfied that it cannot.

 

The defendants also made the case that the plaintiffs’ claim is bound to fail because the agreement they seek to specifically enforce, which they say is an agreement for the sale of lands, is not in writing and it is not evidenced by any note or memorandum signed by the defendants or an agent of the defendants sufficient to satisfy s. 2 of the Statute of Frauds. Counsel for the defendants submitted, citing the judgment of Kenny J. in McQuaid v. Lynam [1965] I.R. 564 as authority, that where the parties to an agreement for the sale of land intend their agreement to find expression in a written document, the subsequent oral variation of the contract is not effective unless it is evidenced by a memorandum or note in writing signed by the party to the charged therewith or some person authorised by him. As I have already stated, the position here is that the defendants accept that they are contractually bound by virtue of the Deed of Covenant to assure the Site, having erected a house thereon in accordance with the 2005 planning permission, to the second and third plaintiffs or their nominee. As I have already stated, the variation of the terms of the Deed of Covenant which the plaintiffs assert was agreed related to house type, although, of course, that has implications for the price the second and third plaintiffs or their nominees should pay.

 

The plaintiffs’ answer to the defendants’ contention that, even if there was an agreement on the lines contended for by the plaintiffs, it is not enforceable for non-compliance with the Statute of Frauds had two strands. First, the plaintiffs submitted that what they are seeking to enforce is a building contract, not a contract for the sale of land, and that, accordingly, the Statute of Frauds does not apply. This argument was based on the proposition that the Site is in some way subject to a trust in favour of the second and third plaintiffs by combined operation of the contract for sale of 20th April, 2004, the assurance on foot thereof and the Deed of Covenant of 11th November, 2004. The second strand, which was more vigorously pursued by the plaintiffs was that, in any event, there were sufficient acts of part performance on the part of the plaintiffs to render the agreement which they allege exists enforceable. For instance, they asserted that Ciaran Barry’s involvement in relation to the planning application which led to the 2006 planning permission, including discharging the relevant fees and costs, and the involvement of Ciaran Barry and Rose Barry in relation to finalising the specification and fit out for the larger house are sufficient acts of part performance to render the agreement they contend for enforceable. The defendants countered that argument by pointing to the fact that the plaintiffs have not pleaded part performance. In fact, the plaintiffs have pleaded neither compliance with the Statute of Frauds nor part performance in the statement of claim, presumably on the basis of their contention that what they are seeking to enforce is not a contract for the sale of land. It is open to the plaintiffs to join issue with the defendants’ contention that the contract is unenforceable in their reply, which is due for delivery shortly, and to assert the existence of sufficient acts of part performance to render the agreement they contend for enforceable.

 

Apart from the pleading point, the defendants asserted that the plaintiffs’ contention that they can answer a defence founded on the Statute of Frauds by reference to the doctrine of part performance is fundamentally misconceived. Counsel for the defendants cited two recent authorities on the doctrine of part performance. First, they referred to a passage from the judgment of Barron J. in the Supreme Court in Mackie v. Wilde (No. 2) [1998] 2 I.R. 578 at p. 586 in which the doctrine was explained as follows:

 

“It must not be forgotten that ultimately the court is seeking to ensure that a defendant is not, in relying upon the Statute, breaking faith with the plaintiff, not solely by refusing to perform the oral contract, but in the manner contemplated from the passage from the judgment of Simon L.J.

The doctrine is based upon principles of equity. There are three things to be considered:-

 

(1) the acts on the part of the plaintiff said to have been in part performance or of [sic] concluded agreement;

(2) the involvement of the defendant with respect to such acts;

(3) the oral agreement itself.

It is obvious that these considerations only relate to a contract of a type which the courts will decree ought to be specifically performed. Each of the three elements is essential. In my view, it does not matter in which order they are considered. Ultimately what is essential is that:

 

(1) there was a concluded oral contract;

(2) that the plaintiff acted in such a way that showed an intention to perform the contract;

(3) that the defendant induced such acts or stood by while they were being performed; and

(4) it would be unconscionable and a breach of good faith to allow the defendant to rely upon the terms of the Statute of Frauds to prevent the performance of the contract.”

The reference to the judgment of Simon L.J. is a reference to his judgment in Steadman v. Steadman [1976] A.C. 536 and to the passage a p. 558 in which Lord Simon outlined the intervention of equity and the evolution of the doctrine of part performance so that the Statute of Frauds could not “be used as an engine of fraud.”

 

The defendants also relied on a passage from the judgment of this Court (Finnegan P.) in Cosmoline Trading Limited v. D.H. Burke & Son Limited & Anor. [2006] IEHC 38 delivered on 8th February, 2006. Finnegan P. stated as follows:

 

“In order to obtain specific performance a party must first of all establish a contract and without this there can be no specific performance. In this case I am satisfied that there were negotiations but that the same never resulted in an entire and completed contract. Where there is no contract part performance does not arise and if in reliance on an incomplete contract a party performs some or more of the matters on which agreement has indeed been reached that will not cause the negotiations which were otherwise incomplete to mature into a completed contract. Where as here there was no consensus on material and essential terms there cannot be a contract. See Dore v. Stephenson [High Court, 24th April, 1980, Kenny J.].”

In my view, that authority has no relevance here. The plaintiffs have not relied on the doctrine of part performance with a view to shoring up an incomplete agreement. Their case was that there was a completed agreement. They invoked the equitable doctrine against the defendants’ charge of non-enforceability because of non-compliance with the Statute of Frauds.

 

On the facts of this case, the defendants submitted that acts relied on by the plaintiffs do not constitute acts of part performance within the equitable doctrine. While I do not consider it either necessary, or even appropriate, to comment on each point they made in relation to the acts of part performance alleged by the plaintiffs, they are quite right in their submission that activities alleged on the part of the defendants cannot constitute part performance by the plaintiffs although, of course, those activities may be evidentially significant. They also submitted that steps alleged to have been taken by Ciaran Barry and Rose Barry, who are neither contracting parties nor plaintiffs, must be excluded from the analysis as to whether there has been part performance. For the reasons stated earlier, it will be obvious that I consider that argument to be unmeritorious. As regards the defendants’ further submission that, on the evidence adduced by the plaintiffs, the negotiations on price and specification only started after the 2006 planning permission was granted, I do not read the evidence that way. In the affidavit sworn on 9th February, 2007 by the second plaintiff grounding the application for an interlocutory injunction, the second plaintiff averred that the pro rata increase on the price of €185,000 by reference to the increased floor area was made prior to any consultation by Ciaran Barry with the defendants’ architects in relation to the planning application which led to the 2006 planning permission.

 

Aside from those specific comments, if the issue of the enforceability of the agreement contended for by the plaintiffs were ultimately to fall to be determined on the basis of whether there have been acts of part performance on the part of the plaintiffs in a manner which complies with the requirements stipulated by Barron J. in Mackie v. Wilde, the outcome would depend on the assessment of the evidence adduced at the trial. On the basis of the submissions advanced by the defendants, it cannot be confidently predicted that the plaintiffs are bound to fail because the agreement they seek to specifically enforce is not in writing or evidenced in writing so as to comply with the Statute of Frauds.

 

However, there was a further point which was addressed by the plaintiffs in the context of their application for an interlocutory injunction which bears on the defendants’ application, namely, whether, if the agreement which the plaintiffs seek to specifically enforce is, as the plaintiffs contended, a building agreement rather than an agreement for the sale of land, it is of a type in respect of which a court would be prepared to grant specific performance. On this point, the plaintiffs referred the court to the decision of the Chancery Division of the English High Court (Farwell J.) in Carpenters Estates Limited v. Davies [1940] 1 All E.R. 13. In that case, the plaintiff had purchased building land from the defendant who, in the transfer, covenanted to make certain roads and sewers. The defendant was in breach of the covenant in relation to the sewers. The court held that the plaintiff would not be properly compensated for the defendant’s breach of covenant by an award of damages and was entitled to a decree for specific performance of the covenant. In his judgment, Farwell J. quoted from the judgments of A.L. Smith M.R. and Romer L.J. in Wolverhampton Corporation v. Emmons [1901] 1 K.B. 515. The passage from the judgment of Romer L.J. which he quoted was in the following terms:

 

“The question, which is not free from difficulty, is whether under the circumstances of this case, an order for specific performance should be made in favour of the plaintiffs. There is no doubt that as a general rule the court will not enforce specific performance of a building contract, but an exception from that rule has been recognised. It has, I think, for some time been held that, in order to bring himself within the exception, a plaintiff must establish three things. The first is that the building work, of which he seeks to enforce the performance, is defined by the contracts; that is to say, that the particulars of the work are so far definitely ascertained that the court can sufficiently see what is the exact nature of the work of which it is asked to order the performance. The second is that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages. The third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done. …”

Farwell J. modified the third requirement, holding that it was sufficient that the defendant be in possession of the land on which the work is contracted to be done.

 

It seems to me that, having regard to the principles applied in that case, the plaintiffs have an arguable case that their agreement with the defendants is specifically enforceable.

 

In summary, the defendants have demonstrated that these proceedings raise a fundamental conflict of fact on the question of the variation of the house type and the specification, finish and fitting out of the house and the price the defendants are to receive for the work and they also raise difficult issues of law, which will have to be resolved in the plaintiffs’ favour if they are to succeed. However, these factors are not sufficient to allow the defendants succeed in their application. I have come to the conclusion that the defendants are not entitled to have the plaintiffs’ proceedings struck out or dismissed at this juncture either under O. 19, r. 28 or under the court’s inherent jurisdiction. As regards O. 19, r. 28, the defendants have not established that the statement of claim discloses no reasonable cause of action, nor has it been shown that the pleadings are frivolous or vexatious. In relation to the court’s inherent jurisdiction, having regard to the pleadings and the evidence adduced, I am not satisfied that the defendants have cleared the difficult hurdle of establishing that the plaintiffs’ case must fail.

Doherty -v- MJELR & Ors

[2009] IEHC 246 McGovern J

 

JUDGMENT of Mr. Justice Brian McGovern delivered on the 15th day of May 2009

1. The plaintiff has sued the numerous defendants in this action and sets out his claims in a statement of claim running to some thirty pages. I have been informed that his action against the following defendants has been struck out or discontinued: The Ombudsman for Northern Ireland, Hugh Orde, The Rev. Ian Paisley and Martin McGuinness. The remaining defendants have brought motions to strike out the plaintiff’s statement of claim. The applications are grounded upon O. 19, r. 27 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court on the grounds that the statement of claim is prolix and/or contains pleadings which are unnecessary or scandalous but which may tend to prejudice, embarrass or delay the fair trial of this action; an order pursuant to O. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court striking out the plaintiff’s statement of claim and/or these proceedings on the grounds that they are vexatious and/or that the statement of claim discloses no reasonable cause of action; an order striking out those parts of the plaintiff’s claim against the first to the fifteenth named defendants as relate to their actions as judges on the ground that same disclose no reasonable cause of action as the said claims are made in respect of acts of the said defendants in the exercise of their jurisdiction.

 

2. The plaintiff, for his part, has brought motions for judgment in default of defence against the defendants. When the motions came on for hearing before me, I adjourned the motions for judgment in default of defence pending the outcome of the defendants’ application to strike out the statement of claim and/or the proceedings.

 

3. The statement of claim in this case is extraordinary in a number of respects. In the first place, it names an exceptionally large number of defendants. Secondly, the claims made by the plaintiff in the document are wide-ranging and disconnected.

 

4. A clue as to the purpose of the proceedings can be found in the affidavit sworn by the plaintiff on 21st April, 2009, for the purpose of opposing the application to strike out the statement of claim and/or dismiss his action. Paragraph 2 of that affidavit reads as follows:

 

“This affidavit is sworn for the purpose of confirming further corruption within the legal, justice and political system . . .”

5. In an earlier affidavit sworn by the plaintiff on 27th January, 2009, the following paragraphs appear:

“2. This affidavit is sworn for the purpose of clarifying the history of this case and the serious abuse of process in my attempt to expose serious wrongdoing in this country, and I say that:

3. this High Court Action is a bona fide action by me to expose serious wrongdoing and is in no way vexatious and frivolous.”

 

6. In the course of the hearing on the motion, the plaintiff stated that he did not take this case for financial gain. He said that, “our prisons are full of innocent people who have no one to stand up for them”. He also informed the court that he would like an enquiry into the abuse of the justice system.
7. I have already referred to the fact that the statement of claim is long and wide-ranging and I do not propose to quote from it in this judgment. A reading of the document shows that it contains a diatribe against various judges and the justice system in general, together with other complaints against various officials and bodies for not doing their duty, for not acceding to requests of the plaintiff, for ignoring complaints of the plaintiff and for acting corruptly or facilitating corruption. Many of the complaints made by the plaintiff concern events in which he was not even involved. Others involve outrageous and wild accusations about judges and other officials in the manner in which they carried out their duties.

 

8. All of the defendants have made submissions, and a substantial number of the defendants have put in written submissions referring to the case law applicable to the issues which arise in this case. The plaintiff has not put in any written submissions and has not relied on any legal authority in resisting the application of the defendants. I accept the legal submissions made on behalf of the defendants. Insofar as the plaintiff makes accusations and claims against members of the judiciary and other statutory bodies acting bona fide within their jurisdiction, as they enjoy an immunity from action in negligence, they are immune from suit. See Beatty J. in Rent Tribunal [2006] 2 IR 191. The plaintiff conceded that he never brought judicial review applications in respect of any of the defendants. Insofar as he criticises members of the judiciary and other public officials for corrupt or dishonest actions or practices or collusion in such practices, his claims are bound to fail unless he can show that they were not acting bona fide within their jurisdiction as they enjoy an immunity from action in negligence. While I appreciate the plaintiff, in this case ,suggests that in certain instances the judges or other officials may not have been acting bona fide in the exercise of their duties, many of the complaints are anecdotal in nature and are, in my view, an abuse of process because they are brought for an improper or ulterior purpose, which is to cause embarrassment and vexation to the defendants and they do not fit within the rubric of inter partes disputes which are justiciable. In many cases, the plaintiff was not personally affected by the actions of which he complains. The remedy of judicial review is there for persons who have genuine complaints about the manner in which public officials exercise their powers. For example, if they act ultra vires SIZE=2 FACE=”Verdana”> or in breach of natural or constitutional justice or fail to carry out their duties towards the plaintiff, such actions are amenable to judicial review and the reliefs of certiorari, mandamus and prohibition are available. But the courts do not exist for the purpose of facilitating individuals to vent their displeasure, and even their anger, at the manner in which public officials carry out their duties.

 

9. Many of the claims made in the statement of claim are vague and imprecise. The complaints are numerous and unconnected with each other, save for general complaints about various defendants failing to carry out their duties properly and acting in a corrupt manner or facilitating corruption.

 

10. On any reading of the statement of claim, the allegations can only be viewed as scandalous or vexatious. See Riordan v. Hamilton and Ors. [2000] IEHC 189 (Unreported), Riordan v. Ireland (5) [2001] 4 I.R. 463. See also Faye v. Tegral Pipes Ltd. [2005] 2 IR 261, where McCracken J. stated at p. 266:

 

“While the words ‘frivolous and vexatious’ are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between the parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless, have no basis for a complaint in law. The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”

11. While completely agreeing with the judgment of McCracken J., I would add that in addition to not permitting the courts to be a forum for lost causes, the courts should not be used to facilitate general abuse of a person or class of persons. The courts are not to be used as a forum for ventilating complaints but, rather, for resolving genuine disputes between parties to the litigation and, where appropriate, the granting of declarations and ancillary relief, based on established right or entitlement.
12. To permit the plaintiff’s action to proceed would be to allow a parody of justice to take place. The claims which he makes are so outrageous and so varied, and the number of defendants so large, that it would be quite impossible to conduct an orderly trial of the issues which he raises. In Hanly v. News Group Newspapers Ltd. [2004] 1 I.R. 472, at 475, Smyth J. stated:

 

“The function of pleadings is to ascertain with precision the matters upon which the parties differ and the points on which they agree and, thus, to arrive at certain clear issues on which both parties require a judicial decision . . . only the material facts and not the evidence on which they are to be proved should be pleaded. Notices for particulars and replies thereto are not pleadings in the strict sense of the word, but merely information exchanged between the parties for their own information.”

13. In Riordan v. Hamilton [2000] IEHC 189, Smyth J. stated at page 5:

“The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used as an opportunity of placing unnecessary or scandalous matters on the record of the court, or as an opportunity of disseminating such matters when they have nothing to do with any dispute between the parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed . . . In the pleadings here, there are allegations which are totally unnecessary to any reasonably balanced or strongly held views of the plaintiff as against the defendant. The imputations of character made here would leave a person open to litigation and defamation, had they not been accorded the protection of the privilege of the court. I need not go through them, but merely highlight further, what I would regard as contemptuous language and scandalous allegations. It is perfectly in order for a litigant to say that a defendant has acted in a particular way. However, what has been imputed here is not only over the top but is being deliberately used for the purpose of trying to advance some view which does not accord with fairness, commonsense, justice, constitutional right or with any modicum of decency.”

What the plaintiff is doing in this statement of claim is adopting a “scattergun” approach by which he hurls accusations and abuse at the numerous defendants, sometimes on his own behalf, but frequently on behalf of others who are not even parties to the proceedings. This is not permissible. The plaintiff has made no attempt to formulate a legal claim in the manner in which this is normally understood. He does not set out what duties each of the defendants owed to him or outline how that duty was breached and what consequences flow from the breach. In many cases, his narrative of complaint does not even relate to matters involving him. Where matters arise relating to third parties, not named as parties to the proceedings, the plaintiff has not established any locus standi to make those claims. In Riordan v. Ireland (5) [2001] 4 I.R. 463 at 473, O Caoimh J. stated:

“I am further of the view that the purpose for which this proposed action is sought to be brought is an improper purpose, namely, the harassment and oppression of the various parties referred to in the proceedings already determined by the Supreme Court and that the proposed action is other than the assertion of a legitimate right. Accordingly, I consider the bringing of this claim will be vexatious.”

In my view, the same could be said of the plaintiff’s claim.

14. Where the extent of the scandalous or vexatious pleading is sufficiently gross and extensive, it seems to me that it is not the function of the court to sift through the material in the statement of claim to see if, perhaps, somewhere within it, a claim can be found in the proper form. The court is entitled to have regard to the document as a whole. There might well be cases where there is an isolated pleading here or there which may be scandalous or vexatious, but the greater part of the document contains pleadings in a proper form. In those cases, the courts can strike out the offending portions of the pleadings. But that is not the case here. This statement of claim is, in fact, a narrative of the plaintiff’s complaints about the judiciary, various public officials and the justice system in general. In the words of Henchy J. in Cahill v. SIZE=2 FACE=”Verdana”> Sutton [1980] I.R. 269 at 286:

 

“It would be contrary to precedent, constitutional propriety and the common good for the High Court . . . to proclaim itself an open house for reception of such claims.”

Access to the courts is a constitutional right and entitles litigants to certain privileges. This carries with it certain obligations. That is why the courts will not permit abuse of process as to do so would bring the system of justice into disrepute.

15. I am quite satisfied that this statement of claim, considered in its entirety, is a document which discloses no reasonable cause of action and is prolix, scandalous, vexatious and an abuse of process. Accordingly, I will direct that the statement of claim be struck out.

 

 

 

Doe v. Armour Pharmaceutical Inc.

[1997] IEHC 139 (31st July, 1997)

 

Judgment of Mr. Justice Morris delivered the 31st day of July, 1997 .

 

1. This Motion is one of twenty-three Motions before the Court. It has been agreed between the parties that this Motion will be treated as a test case ruling the other 22 cases since the same relief is sought in each of the other Motions. It seeks an Order dismissing the Plaintiffs’ claim against the Third named Defendant, both pursuant to Order 19 Rule 28 of the Rules of the Superior Courts and under the inherent jurisdiction of the Court to make such an Order identified in Barry -v- Buckley , 1981 I.R. 306.

 

2. The Plaintiffs in these twenty-three applications are among a group of thirty-two Plaintiffs, each of whom instituted proceedings in the jurisdiction of the United States of America claiming damages against the first three Defendants on the basis that they were haemophiliacs who had received treatment by the use of blood products prepared by the First, Second and Third named Defendants who are pharmaceutical companies in the United States of America and as a result of the negligence of the Defendants suffered personal injuries. The proceedings were stayed in the United States of America because it was deemed proper that the actions should proceed in this jurisdiction and accordingly proceedings were instituted in the jurisdiction of the Irish Courts. In these proceedings the same three Defendants were retained as Defendants but subsequently, an application was made to the join the Fourth and Fifth named Defendants and this application was successful. These Defendants were joined on the basis that it could be established that the Plaintiff had been treated with the blood product manufactured by them.

 

3. The present Motion is brought by the Third named Defendant and in support of this application, it makes the following points:-

 

 

(a) It points to the fact that these are but approximately 50% of the cases which are now pending before the Courts in which they are named as Defendants. It says that in these twenty-three cases, the Plaintiffs have no evidence whatever to establish that they were treated with product for which the Third named Defendant is responsible. The Third named Defendant has by way of Notice of Particulars and otherwise, challenged the Plaintiffs to offer any evidence to the Court that they were so treated. It says that the Plaintiffs have offered no such evidence and it says in the circumstances it should be dismissed out of the case on the grounds that, in the words of Order 19 Rule 28, the action “discloses no reasonable cause of action” against it. It says that it is fortuitous that it appears in the action as a Defendant and this arises only because it was an American company which was sued in the first instance in America simply because it had imported its product into the Republic of Ireland.

 

(b) Not only do the Third named Defendant say that the Plaintiffs are unable to offer any evidence of their product having been administered to any one of the twenty-three Plaintiffs but it has embarked upon an elaborate examination of the dates upon which its product was available in this jurisdiction, the unit count of its product, the unit count administered to each Plaintiff, the dates of such administration and it submits to the Court that as a result of these enquiries, it can be demonstrated that it was an impossibility that any of its product was ever administered to the Plaintiff. In this regard it acknowledges that in a variety of other cases (not now before the Court) it does accept that it is a possibility that its product was administered to these Plaintiffs but in the instant case it says that this is not possible.

 

(c) Counsel for the Third named Defendant has confronted head-on all the criticisms which have been levelled at the Third named Defendant’s conclusions that its product was not administered to the Plaintiffs and he has answered in a convincing and matter-of-fact way, all of the criticisms so as to enforce the suggestion that the Third named Defendant’s Statements are correct and they say that in these circumstances it is improper that the action should be allowed to proceed against them exposing them to the inconvenience and costs of fighting these cases.

 

(d) Counsel for the Third named Defendant has indicated to the Court that it would be happy to accept an Order from the Court dismissing the case against these Defendants but reserving the right to any party to the action to re-join the Third named Defendant as a Defendant if at any stage in the future during the course of the action it should transpire that there is any evidence to associate it with any of these Plaintiffs.

 

4. On behalf of the Plaintiffs, Mr. Cush has submitted that all the information upon which the Third named Defendant bases its application and all the data upon which its calculations are founded has its origin with the Third named Defendant’s servants or agents. This data is not corroborated by a sworn testimony. It is not revealed who compiled the data and information and has in fact sought to throw doubt upon the accuracy of this information. He has moreover made the following point. He says that at the moment he is prepared to accept that he does not have any documentary proof to offer to the Court that any of these Plaintiffs were in fact treated by the Third named Defendant’s product, however, he does not accept that this is the sole method by which the liability of the Third named Defendant can be established. He suggests that it remains open to the Plaintiff to tender oral evidence to the Court upon which the Court may legitimately be asked to draw conclusions, namely, that the Plaintiff was treated with the Third named Defendant’s product as a matter of probability. Accordingly, he submits that it should remain open to the Plaintiffs to have the opportunity of tendering such evidence at the hearing.

 

5. This application is attended by further considerations. Notices of Contribution and Indemnity under the Civil Liability Act, 1964 have been served on the Third named Defendant by the First and Second named Defendants. Accordingly, the case is made by Counsel on their behalf that if the Court were to strike out the case, insofar as the Third named Defendant is concerned, that they, the first and second named Defendants, would be deprived of their respective rights to claim this contribution or indemnity. They accordingly say that irrespective of the capacity of the Plaintiffs to prove their case against the Third named Defendant, it should remain open to them at the hearing to tender evidence to show that the Third named Defendant did provide its product to the Plaintiffs and accordingly the Order should not be made.

 

6. There is a further element to the case and that is that by Order of the 23rd May, 1996, the Fourth and Fifth named Defendants were joined as Defendants. To date no steps have been taken by the Plaintiffs against them other than the delivery of pleadings and accordingly Counsel on behalf of the Fourth and Fifth named Defendants urged the Court to refuse the Order sought on the grounds that they have had little or no opportunity to consider their position and if an Order were made now dismissing the Third named Defendant from the action, it would be necessary for them to apply to have them joined as a Third Party in order to pursue their remedy for contribution or indemnity against it.

 

7. By way of a preliminary point, the attention of the Court has been directed to Hetherington -v- Ultra Tyre Services Limited , 1993 I.L.R.M. 353 in which it was held by the Supreme Court that:-

 

 

“If two defendants are sued and if one of them seeks an application for a non-suit at the conclusion of the plaintiff’s case, it is open to the Judge and probably very desirable in the interest of justice, that he should enquire from the second or other defendants involved in the case as to whether it would be their intention, if they are left in the action, to present a case against the parties seeking a non-suit at that time. If they are going to present a case by evidence or submission against their co-defendant, seeking to blame him, all the requirements of justice are that all that evidence should be heard before final determination of the case.”

8. In the circumstances, they say that this application is premature as it is intended to offer such evidence in this case.

 

9. I take as the starting point in considering this application, the decision of Costello J., as he then was, in Barry -v- Buckley , 1981 I.R. 306, in which the Court identified its inherent jurisdiction to strike out an action if the conclusion is reached that a considerable injustice would result if that step is not taken. However, he held that this is a jurisdiction which “should be exercised with great caution” and Murphy J. in Den -v- Banco Ambrosiano PSA was of the same view 1991 1 I.R. 569 and this view was approved by the Supreme Court.

 

10. In these cases and in Sun Fat Chan -v- Osseous Limited , 1982 1 I.R. 425, it was made clear that the Court would only exercise this jurisdiction in which it was clear beyond doubt that the Plaintiff could not succeed. Such circumstances would clearly envisage that no dispute could arise on issues of fact. If such a dispute exists then it is clear, in my view, that such an issue can only be determined by the trial Judge at the hearing of the action.

 

11. I respectfully agree with the views expressed by Mr. Justice McCarthy in Sun Fat Chan -v- Osseous Limited when he said

 

 

“Experience has shown that the trial of an action will identify a variety of circumstances, perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established that the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our juris prudence and not one to be disowned for its novelty though there may be a certain sense of disquiet at its rigour. The procedure is peculiarly appropriate to actions for the enforcements of contract, since it likely that the subject matter of the contract, would, but for the existence of the action, be the focus of another contract”

 

12. In the present case neither the Plaintiff nor the remaining Defendants accept as matters of fact the facts relied upon by the Third named Defendant in reaching its conclusion that none of these Plaintiffs was treated with its product. No doubt at the hearing the Third nNamed Defendant will embark upon establishing these facts. However, until such time as these facts are established, in my view it is not open to the Court to make the Order now sought.

 

13. It does appear me that if I were decide this Motion with a view to avoiding unnecessary expense and on the basis of what is best for all the parties I would grant the relief sought. It seems to me probable that at the end of the day the Plaintiffs will be unable to establish that they were ever treated with the Third named Defendants’ product and it also seems to me that the other Defendants will fail to obtain contribution or indemnity from the Third named Defendants. In these circumstances I am unable to identify any reason why the Plaintiff and the other Defendants should not agree to the Order now proposed – namely that the proceedings be now discontinued reserving the right to any party to reactivate the proceedings against the Third named Defendant if its involvement is established – however, it is no part of the Court’s function to make such arrangements, save by consent of the parties. All the parties have resisted the making of this Order and accordingly I am of the view that it is not open to the Court in the light of the disputed facts to make the Order sought.

 

14. Accordingly, I refuse the relief sought.

 

 Ennis v. Butterly

[1996] IEHC 51; [1996] 1 IR 426; [1997] 1 ILRM 28 Kelly J

Kelly J.

 

The application

 

1. The defendant seeks to have the plaintiff’s amended statement of claim struck out in its entirety. He seeks such an order pursuant to the provisions of 0. 19, r r. 27 and 28 of the Rules of the Superior Courts, 1986, and the inherent jurisdiction of the court.

 

2. Order 19, r. 27 reads as follows:-

 

“The Court may at any stage of the proceedings order to be struck out or amended any matter in any endorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit , order the costs of the application to be paid as between solicitor and client.”

Order 19, r. 28 reads:-

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in cases of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

3. Apart from these two rules, the court has an inherent jurisdiction to stay proceedings that are frivolous or vexatious or propound a claim which must fail. It is this inherent jurisdiction which has largely been relied upon by the defendant in this application.

 

4. The principles upon which the court exercises this jurisdiction have been considered in a number of cases. In Barry v. Buckley [1981] 306, Costello J. (as he then was) said at p. 308:-

 

“The principles on which the Court exercises this jurisdiction are well established. Basically, its jurisdiction exists to ensure that an abuse of the process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Grierson [1908] 1 K.B. 761 at 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence.”

In Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425 at p. 428, McCarthy J., speaking for the Supreme Court, said:-

“Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought. Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour.”

5. The jurisdiction was again considered by Costello J. in D.K v. King [1994] 1 I.R. 166 where he repeated the principles enunciated by him in Barry v. Buckley. Having expressed the view that the plaintiff’s claims were neither frivolous nor vexatious, Costello J. went on to say at p. 171:-

 

“What I am required to consider therefore is whether any of the claims against all or any of the defendants is so clearly unsustainable that I should strike it out.”

6. His approach to this jurisdiction was considered by the Supreme Court in O’Neill v. Ryan (No. 1) [1993] I.L.R.M. 557. Blayney J., at p. 561, expressly approved the approach of Costello J. in D.K v. King as being correct.

 

7. In view of the fact that this inherent jurisdiction is relied on by the defendant, it is permissible for affidavit evidence to be adduced. A number of affidavits have been filed and I will consider their contents in due course. From the point of view of this application, however, it is conceded by Mr. McDowell on behalf of the defendant that I must assume

 

(a) that every fact pleaded by the plaintiff in her amended statement of claim is correct and can be proved at trial, and

(b) that every fact asserted by her on affidavit is likewise correct and can be proved at trial.

8. This approach necessarily means that, insofar as there may be conflict between matters averred to by the plaintiff and the defendant on their respective affidavits, such conflicts must be resolved in favour of the plaintiff. Adopting this approach, as I do, I now proceed to consider the application.

 

 

The action

 

9. The plaintiff commenced these proceedings by the issue of a plenary summons on the 9th May, 1995. The general endorsement of claim claimed damages for breach of contract, negligent misrepresentation, fraudulent misrepresentation and a sum of £175,000. In addition, it sought a declaration that the plaintiff was entitled, as beneficial owner, to one half of the value of a cheque in the sum of £350,000 dated the 27th September, 1993, and drawn by Maxol Limited on the Ulster Bank at 2/4 Lower O’Connell Street in favour of Choppard International Limited. The endorsement of claim also sought a declaration that the defendant held the sum of £175,000 in trust for the plaintiff or, alternatively, a declaration that the plaintiff was entitled to such a proportion of the cheque as to the court seemed just.

 

10. That summons was followed by a statement of claim delivered on the 30th May, 1995, which prayed for the same reliefs.

 

11. The present motion was initiated on the 27th June, 1995, and thereafter affidavits were exchanged. One of the exhibits to an affidavit of the plaintiff sworn in July, 1995, consisted of an amended statement of claim. I permitted delivery of that amended statement of claim. This accords with the views expressed by McCarthy J. in Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425 where he said that he inclined to the view that if the statement of claim in an action admitted of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed. It is to this amended statement of claim that Mr. McDowell has directed his fire, contending that the plaintiff’s claim is not saved by it. In fact, he says that no part of the statement of claim should survive his attack.

 

12. In the light of this, I must set forth in its totality the amended statement of claim. It reads as follows:-

 

“1. The plaintiff is a married lady with one son but living separate and apart from her husband since about the year 1978.

2. The defendant is a married man with three children but living separate and apart from his wife since about the year 1977.
3. When the plaintiff and defendant first met in September, 1984, the plaintiff was the owner of a successful ladies wholesale fashion business.
4. Between September, 1984, and September, 1985, the plaintiff and the defendant formed a close personal and ultimately intimate relationship; in or about the month of September, 1985, the defendant came to reside with the plaintiff and her son at the plaintiffs residence and from then until about May, 1993, the parties lived in effect as a happy family unit.

 

Particulars

 

(a) In early 1986, the parties rented and later

purchased in their joint names by mortgage loan a house at Castleknock in the City of Dublin;

(b) The parties agreed that if and when

legislation was enacted in the State permitting the dissolution of marriage, they would seek the dissolution of their respective marriages, and would as soon as possible thereafter marry each other;

(c) In early 1987, the defendant purchased for

the plaintiff a diamond engagement ring, and the defendant requested the plaintiff to travel abroad with him for the purpose of securing their respective divorces and re-marriage outside the State;

(d) At the plaintiff’s request, the parties agreed

to await enabling legislation in the State before marrying;

(e) On the advice of the defendant, the

plaintiff’s business was incorporated with limited liability as BE EN Limited, with the plaintiff and the defendant being directors and equal shareholders;

(f) All mortgage payments and household

expenses were paid out of the plaintiff’s personal account, while the defendant provided money, gifts and other luxuries for the plaintiff and her son;

(g) The defendant paid maintenance to his wife

and invested the balance of his money in expanding his business interests for the benefit of himself, the plaintiff and the plaintiffs son, so that the parties might share equally all property and wealth generated by their efforts.

 

5. In or about the month of May, 1993, the plaintiff

learned that the defendant was intermittently cohabiting with his wife and thereupon refused to allow the defendant return to the parties’ home, and returned all of the defendant’s personal property to him at his business address. The defendant thereupon withdrew certain personal guarantees for the liabilities of BE EN Limited, thereby precipitating a cashflow crisis which led to the liquidation of the company.

6. In or about the month of July, 1993, the plaintiff set

about establishing a new fashion business, and proceeded on her own account to market fashion designs.

7. Throughout the months of July, August and

September, 1993, the defendant constantly implored the plaintiff for forgiveness, made professions of love, and apologies. He sent her substantial gifts and representations and warranties as particularised hereunder.

 

Particulars

 

The defendant again asked the plaintiff to marry him, and promised to marry her as soon as possible. He presented her with another “engagement” ring. He implored her to discontinue her business and live full-time at home as might a wife, as a home-marker, housekeeper, companion and carer. He promised that he would pay all family and household outgoings; that the plaintiff would have her own current account; that she would have access to his credit card account; that the proceeds of a cheque in the sum of £350,000 payable to Choppard International Limited (a company owned by the defendant) paid under a solace agreement with Maxol Limited would be their joint property; that the plaintiff would be loved, honoured and cherished by the defendant as a wife, that he would be loyal and faithful to her, and that she would be emotionally and financially secure for life. The defendant further promised the plaintiff that she would become a director and shareholder in Choppard International Limited.

 

8. The said representations were intended to and did

induce the plaintiff to agree to marry the defendant when possible, in the meantime to live with him as a wife might, and, in particular, to discontinue her own business and live at home as a full-time housewife and home-maker.

9. In breach of the said representations and warranties,

the defendant was not loyal and faithful to the plaintiff, did not share any of the profits of Choppard International Limited from the said solace agreement, did not arrange for the plaintiff to become a director or a shareholder in that company.

 

Particulars

 

In or about the month of September, 1994, the plaintiff learned that the defendant was having an intimate relationship with another lady, and she told him that she could no longer consider marrying him. She asked him to leave her home which he did. The defendant told her that he would honour his financial commitments to her but he has not done so, has not shared any of the profits of Choppard International Limited and has provided no income from that company or otherwise to the plaintiff.

 

10. At the time of making the said representations and

warranties, the same being as to his own intentions, the defendant well knew the same to be false; alternatively, the defendant made the same recklessly and without regard to their truth or otherwise.

11. In the premises, the plaintiff has suffered loss and

damage greatly aggravated by the nature of the representations, the deception of her by the defendant, and the circumstances of the case. The plaintiff claims:

 

(i) Damages for breach of contract;

Damages for negligent misrepresentation;

Damages for fraudulent misrepresentation;

Further and other relief;

Costs.”

 

13. It is to be noted that the declaratory relief concerning the beneficial ownership of the £175,000 sought both in the originating summons and the original statement of claim has disappeared out of the amended statement of claim. This was no oversight. In the hearing before me, Mr.O’Loughlin, on behalf of the plaintiff, expressly disavowed any claim as to beneficial ownership of those monies. Consequently, the only reliefs which are now sought in the action arise at common law. No equitable relief is now claimed.

 

 

 

The facts

 

14. The plaintiff and defendant are both married but not to each other. They cohabited with each other as though they were man and wife between September, 1985, and May, 1993. It is common case that the dwelling house at No. 56 Castleknock Park was purchased in November, 1988, in the joint names of the plaintiff and defendant. In 1993, the defendant transferred his half share in that house to the plaintiff.

 

15. In May, 1993, the relationship between the plaintiff and the defendant broke down with the defendant being asked to leave home. This was because he was intermittently cohabiting with his wife.

 

16. Subsequently, the defendant was anxious to re-establish his relationship with the plaintiff. This occurred in September, 1993, and the defendant moved back in to Castleknock Park with the plaintiff.

 

17. In September, 1994, the relationship again broke down. Again, the defendant was requested to leave home and did so. These are matters of fact which are not in dispute between the parties and form the backdrop against which the statement of claim now falls to be examined.

 

 

 

The breach of contract claim

 

 

18. The first relief which is sought in the amended statement of claim is damages for breach of contract. On an examination of the statement of claim, it appears to me that the only contract (apart from the mortgage on 56 Castleknock Park which is no longer relevant) which is pleaded is a twofold one. The first is an agreement to marry. The second is an agreement to live together as man and wife until such marriage would be possible. In consideration of that agreement, the plaintiff discontinued her business and lived as a full-time housewife and home-maker.

 

19. The defendant contends that this twofold claim in contract must fail.

 

20. As to the first, he relies upon the provisions of s. 2 of the Family Law Act, 1981, which abolished the action for breach of promise of marriage. In my view, that enactment is fatal to any claim which is asserted by the plaintiff to derive from the breach by the defendant of an agreement to marry her. Indeed, even before the enactment of the Act of 1981, at common law it had been held in England that a promise by a married person to marry one who knew that person to be already married was unenforceable as being against public policy (see Wilson v. Carnley [1908] 1 K.B. 729, Spiers v. Hunt [1908] 1 K.B. 720, Siveyer v. Allison [1935] 2 K.B. 403). In the instant case, both the plaintiff and the defendant at all times knew that they were each married to someone else. Even before the enactment of the Act of 1981, their agreement to marry each other would have been unenforceable as a matter of public policy. Subsequent to the Act of 1981, there can be, in my view, no doubt but that the defendant is correct when he says that this part of the plaintiffs claim must fail.

 

21. The second contractual arrangement alleged by the plaintiff is set forth at paragraph 8 of the amended statement of claim. It is that, pending marriage, she would “in the meantime, live with him as a wife might and, in particular, discontinue her own business and live at home as a full-time housewife and home-maker”. The defendant contends that an agreement to cohabit, whether pending a forthcoming marriage or not, cannot give rise to enforceable rights. This is so whether the parties agree to live together pending a dissolution of existing marriages or not. It is said that the enforcement of such agreements would be contrary to the public policy of this State. It is furthermore said that the present claim in attempting to enforce this agreement by means of seeking damages for its breach is not actionable as a matter of Irish law. It is furthermore said that the plaintiffs proceedings are, in effect, a claim for “palimony”.

 

22. This expression “palimony” was much used by Mr. McDowell in the course of argument but it was never defined nor was any authority opened on the topic. The Oxford English Dictionary defines it as a slang word of American origin formed by a blend of “pal” and “alimony” and denoting “compensation claimed by the deserted party after the separation of a couple living together out of wedlock”. That it is truly a slang term appears to be borne out by the fact that amongst the, admittedly relatively few, text books on American family law available to me, I fail to find a single instance of the word being used.

 

23. Historically, applications to seek enforcement of cohabitation contracts in the United States have been treated in much the same way as such claims in England. They were invariably rejected either on grounds of immorality or lack of consideration. Things changed somewhat with the decision of the Supreme Court of California in Marvin v. Marvin (1976) 18 Cal. 3d 660. That court concluded, inter alia :-

 

“The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services.

In the absence of an express contract, the courts should enquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedy such as constructive or resulting trusts, when warranted by the facts of the case.”

24. This is the case which appears to have spawned the expression palimony’.

 

25. Since the decision in Marvin v. Marvin, some State courts have been willing to find implied contracts where no express contract existed. Others have trenchantly refused to go down that path. For example, the New York Court of Appeal in Morone v. Morone (1980) 429 NYS 2d 592 said that:-

 

“Finding an implied contract such as was recognised in Marvin v. Marvin . . . to be conceptually so amorphous as practically to defy equitable enforcement, and inconsistent with the legislative policy enunciated in 1933 when common law marriages were abolished in New York, we decline to follow the Marvin lead.”

26. It seems, therefore, that insofar as the jurisdiction where this concept finds it genesis is concerned, the existence of such a claim is by no means universally accepted.

 

27. The position in England and Wales on the other hand appears to be crystal clear. In Windeler v. Whitehall [1990] 2 F.L.R. 505, Millett J. (as he then was) said:-

 

“If this were California, this would be a claim for palimony, but it is England and it is not. English law recognises neither the term nor the obligation to which it gives effect. In this country a husband has a legal obligation to support his wife even if they are living apart. A man has no legal obligation to support his mistress even if they are living together. . . The courts possess neither a statutory nor an inherent jurisdiction to disturb existing rights of property on the termination of an extramarital relationship, however long established the relationship and however deserving the claimant.”

28. In my view, the law in this country is no different and, if anything, would lean more strongly against such a concept having regard to the special position of marriage under the Constitution.

 

29. Agreements by persons to cohabit have long been held to be unenforceable at common law as being injurious to morality and marriage. Mr. McDowell relied on the decision in Beaumont v. Reeve (1846) 8 Q.B. 483 in support of his contention that it would be contrary to public policy to permit the enforcement of the present contract. Whatever may have been the public policy in England in 1846 when that case was decided, this case must be decided upon the public policy of this State.

 

30. That is to be found in the first instance in the Constitution and, in particular, Article 41 thereof. In that Article, the State recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law. The State pledges itself to guard with special care the institution of marriage, on which the family is founded and protect it against attack.

 

In the State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, Henchy J. said:-

“For the State to award equal constitutional protection to the family founded on marriage and the ‘family’ founded on an extramarital union would in effect be a disregard of the pledge which the State gives in Article 41, s. 3, sub-s. 1 to guard with special care the institution of marriage.” (p.622)

31. In that case, the Supreme Court, per Walsh J., said it was:-

 

“Quite clear. . . that the family referred to in [Article 41] is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State.” (p.643)

32. Given the special place of marriage and the family under the Irish Constitution, it appears to me that the public policy of this State ordains that non-marital cohabitation does not and cannot have the same constitutional status as marriage. Moreover, the State has pledged to guard with special care the institution of marriage. But does this mean that agreements, the consideration for which is cohabitation, are incapable of being enforced? In my view it does since otherwise the pledge on the part of the State, of which this Court is one organ, to guard with special care the institution of marriage would be much diluted. To permit an express cohabitation contract (such as is pleaded here) to be enforced would give it a similar status in law as a marriage contract. It did not have such a status prior to the coming into effect of the Constitution, rather such contracts were regarded as illegal and unenforceable as a matter of public policy. Far from enhancing the position at law of such contracts the Constitution requires marriage to be guarded with special care. In my view, this reinforces the existing common law doctrines concerning the non-enforceability of cohabitation contracts. I am therefore of opinion that, as a matter of public policy, such agreements cannot be enforced.

 

33. I am strengthened in this view by the fact that, notwithstanding the extensive reform of family law which has taken place in this country over the last 20 years, nowhere does one find any attempt on the part of the legislature to substantially enhance the legal position of, or to confer rights akin to those of married persons upon the parties to non-marital unions e.g. a right to maintenance. This absence of intervention on the part of the legislature suggests to me that it accepts that it would be contrary to public policy, as enunciated in the Constitution, to confer legal rights on persons in non-marital unions akin to those who are married.

 

34. In the present case, the amended statement of claim makes it clear that the consideration for the second contract was the living together of the plaintiff and the defendant with the plaintiff living with him “as a wife might” and “at home as a full-time housewife and home-maker”.

 

35. In my view, the contract contended for here is unenforceable as a matter of public policy. Whether one calls it palimony or not, it is not capable of enforcement in this jurisdiction. If the plaintiffs claim is truly a palimony one (which I doubt), I am of opinion that Irish law recognises neither the term nor the obligation to which it gives effect. Consequently, it must be struck out. If it is not a palimony claim, it is clearly an attempt to enforce a contract the consideration for which is wifely services being rendered on the part of a mistress. Such contracts were always regarded as illegal and unenforceable and remain so. A claim of this type arising out of such a relationship must, in my view, be struck out.

 

36. In coming to the conclusion above, I have not forgotten the two English authorities which were cited by Mr. O’Loughlin on behalf of the plaintiff. They were Eves v. Eves [1975] 1 WLR 1338 and Tanner v. Tanner [1975] 1 W.L.R. 1346. I do not think that these cases can be of assistance to the plaintiff.

 

Eves v. Eves was concerned with an equitable interest which was alleged to exist in respect of certain real property. No claim in equity is made in the instant proceedings. Such equitable claim as was once asserted has expressly been abandoned. Tanner v. Tanner involved a licence over a premises occupied by an unmarried cohabiting couple. The Court of Appeal, on the facts, implied the existence of a contractual licence. That case is far from the present one. No implied contract is pleaded here. This case involves a straightforward claim for damages for breach of an express contract the principal, if not the only, consideration for which was cohabitation.

37. Even if an implied contract were contended for, the consideration involved would still render it unenforceable on grounds of public policy.

 

38. I hold that the claims for damages for breach of contract must, as a matter of law, fail. They are struck out.

 

39. I turn now to consider the remaining claims in the statement of claim.

 

 

The misrepresentation claim

 

40. The plaintiff also claims damages, for negligent and fraudulent misrepresentation.

 

41. A claim to recover damages for misrepresentation which causes damage lies in the following circumstances:-

 

(a) Where the misrepresentation is made dishonestly,

i.e. fraudulently, in a common law action of deceit.

(b) Where the misrepresentation is made negligently in a

common law action for negligent misstatement.

42. In the course of the hearing, Mr. O’Loughlin relied upon the House of Lords decision in Derry v. Peek (1889) 14 App. Cas. 337. He contended that he has an action against the defendant in deceit.

 

43. That decision regarded actual fraud as being an essential ingredient of the action in deceit. The essence of the action is dishonesty. A merely negligent misrepresentation will not suffice.

 

44. In order to sustain the common law action of deceit, the following facts must be established, i.e. they must be pleaded and proved:

 

1. There must be a representation of fact made by

words or by conduct.

2. The representation must be made with knowledge

that it is false.

3. It must be made with the intention that it should be

acted upon by the plaintiff in the manner which resulted in damage to such plaintiff.

4. It must be proved that the plaintiff acted upon such

false statement.

5. It must be proved that the plaintiff has sustained

damage by so doing.

45. I am of opinion that on the basis of the pleadings before me, these five criteria are met in at least one aspect of the plaintiff’s claim.

 

46. It is alleged (and I must assume that the plaintiff will prove) that the defendant represented to the plaintiff that she would become a director and shareholder in Choppard International Limited and would share in its profits. She contends that she discontinued her business on foot of that representation but the defendant did not arrange for her to become a director or a shareholder in that company nor did she share in its profits. That claim at least appears to me to be capable of being separated from the contractual arrangements alleged to have been made between the plaintiff and the defendant. Mr. McDowell contends that all of the representations which were made were intended to and did induce the plaintiff either to agree to marry the defendant or to cohabit with him as a wife might in the meantime. But under this heading, the plaintiff claims that not merely did she agree to live with the defendant as man and wife but also gave up her business with a view to becoming involved in his. That arrangement is pleaded as part of the cohabitation contract and, insofar as it is, cannot be pursued. But the allegation of misrepresentation stands separate and apart from such contract. It is an allegation of a tort. It can stand separate and apart from the contractual claim. Mr. McDowell contends that if I allow this claim to remain extant, that would be to permit the indirect enforcement of the contract. He says it would permit the plaintiff to arrive at the same situation of benefit simply by framing her action in deceit. No authority was cited to support Mr. McDowell’s contention that the tort claim must suffer the same fate as the contractual.

 

47. It is possible that the action of the plaintiff in abandoning her business may have been induced as a result of misrepresentations on the part of the defendant and insofar as that claim is advanced as an alleged tortious wrong, it appears to me that it must be permitted to proceed to trial. Whatever reservations I may have, I cannot at this juncture say that the plaintiffs claim in this regard must fail. That is the test which 1 must apply.

 

48. If the claim for fraudulent misrepresentation is permitted to go to trial, so also must the claim for negligent misrepresentation since that, in my view, is also made out on the pleadings. I cannot at this stage say that it must fail.

 

 

Conclusion

 

49. In the result, the plaintiff’s claim for damages for breach of contract will be struck out but the claim in respect of damages for misrepresentation will not.

 

 

Ewing v. Kelly

[2000] IEHC 58 JUDGMENT of O’Sullivan J. delivered the 16th day of May, 2000.

1. In this Judgment I am dealing with Motions brought by each of six of the nine Defendants in this action in which they seek Orders dismissing the Plaintiff’s claims against them. The majority of these Defendants invoke Order 19 Rule 27, Order 19 Rule 28 and the inherent jurisdiction of the Court, that is, the majority seek an Order striking out the pleadings on the basis that they are unnecessary or scandalous or that they tend to prejudice, embarrass or delay a fair trial of the action (Rule 27), or they say the pleadings disclose no reasonable cause of action (Rule 28) or they say that upon a general review of the case, including pleadings and evidence, I should conclude that there is no possibility that the Plaintiff can win his case and therefore in the exercise of my inherent jurisdiction I should strike out the Plaintiff’s claims.

 

2. I would point out at the outset that the words “unnecessary”, “scandalous” and “embarrass” in this rule have a particular meaning which derives from their context in the Rule book and that this meaning is not the usual meaning of these words; accordingly, legal submissions employing these terms may tend to sound hurtful, aggressive or insensitive in the mouths of lawyers in applications such as the present one in a way which is not necessarily intended.

 

3. I would also say at the outset that an application such as the present one is dealt with at a technical level; that is by reference to established principles of pleading and by reference to concepts of legal causation and recoverable loss, rather than on the merits of any matters in contention which may be raised or alluded to in the application or in the papers.

 

4. Thus, for example, in considering these motions I am not concerned with deciding and do not determine the suggestion for example, that the Plaintiff is irrational, violent, obsessional or unintelligent, or the suggestions from the other side alleging institutionalised racism or the more serious allegation linking the activities of some of the Defendants with the unfortunate death of the Plaintiff’s father. My only concern is, rather, to reach conclusions on the relatively technical questions of pleading and the processing of the claim as indicated above.

 

5. I have had the benefit of comprehensive submissions from Counsel representing each of the six Defendants concerned and also a lengthy submission partly in written form and partly delivered orally in Court by the Defendant and I am grateful for the assistance these have given me.

 

6. The law in dealing with these applications is well established and clear and need not be repeated here extensively by me.

 

7. The main principles of law may be summarised, not exhaustively, as follows:-

 

 

8. Insofar as the applications are based on the allegation that the pleadings disclose no reasonable cause of action I must assume that all of the relevant matters pleaded by the Plaintiff will be established by him; I must also take account of any amendment of the actual pleadings which could “save” the case being made by the Plaintiff. If, as in this case, the Defendants have made it clear that they intend to plead the Statute of Limitations and such a defence is one which in the circumstances must inevitably succeed, then I consider that I should also take that into account in this application.

 

9. Again, if issues raised between the same parties have already been finally dealt with on the merits by a Court of competent jurisdiction, then again the law of estoppel makes it clear in my view that such issues should not be tried again and the relevant pleadings accordingly struck out.

 

10. Insofar as these applications are grounded on the inherent jurisdiction of the Court, if I came to the conclusion that it is inconceivable, for whatever reason, that the claim must fail, then I should strike it out at this stage, but, bearing in mind that the Court should be very slow to exercise such a jurisdiction.

 

11. Finally, where the applications are grounded on the allegation that the pleadings are unnecessary or scandalous or tend to embarrass, prejudice or delay a fair trial I must have regard to the relevance or not of the material on the issues raised.

 

12. The foregoing is the briefest of summaries of the applicable principles of law which I have said is well established.

 

 

Introduction

13. Broadly speaking the Plaintiff’s case originates from a land transaction whereby the first Defendant in 1986 acquired land from the Plaintiff’s father surrounding the home of the Plaintiff. The Plaintiff seeks in these proceedings to have that transaction set aside and makes comprehensive allegations of various kinds of wrongdoing against several of the Defendants who at one time or another acted for him or his father as their Solicitor, against the Law Society, and against the first Defendant as current owner and occupier of these lands and against the last three Defendants as representing the State.

 

14. I now turn to deal with the cases made by each of the Defendants in the same sequence as they were dealt with at the hearing of these motions.

 

 

The Fourth Defendant

15. This Defendant is The Law Society and the claim in broad terms is that it failed in its obligation to provide the Plaintiffs with a comprehensive list of Solicitors who would be prepared to act in their case.

 

16. In making this application to have the Plaintiff’s claims struck out this Defendant relies on two broad grounds namely

 

 

(a) Section 36(1) of the Solicitors’ (Amendment) Act, 1994 which requires that a Plaintiff must establish that this Defendant has not acted in good faith.

 

17. In my view this Plaintiff has no conceivable basis for a case that this Defendant did not act in good faith.

 

 

(b) Further this Defendant says that the bulk of the material before me shows that the Society’s involvement is merely to make available in accordance with its usual practice to the Plaintiff the names of three Solicitors from a list of same who would be prepared to act for the Plaintiff’s in the proceedings referred to.

 

18. In my view there is no conceivable basis for a claim made out by the Plaintiffs on the pleadings and accordingly, the claim must be struck out as against this Defendant.

 

 

The Fifth Defendant

19. The Plaintiff’s claim against this Defendant is for

 

(a) Damages arising from the death of the late William Ewing

(b) Loss of enjoyment of life of Robert Ewing; and

(c) For an account and return of monies paid by William Ewing

 

20. In my view having considered the voluminous material placed before me, no cause of action has been made out against this Defendant for these or any reliefs.

 

21. There are, further, allegations or certainly imputations that the Plaintiff’s father was inadequately served by this Defendant in his professional capacity, but, once again, on a review of any material before me, I am driven to the conclusion that no such case could conceivably succeed. I must, therefore, strike out the claim as against this Defendant.

 

 

The First Defendant

22. Many of the complaints now raised in these proceedings have already been raised and finally determined in proceedings entitled Anthony Kelly -v- William Ewing and Robert Ewing (Nos E21/88 and E31/1988). I have been furnished with a full record of these proceedings and it is quite clear that a number of issues now sought to be raised in the present proceedings were raised and dealt with in the earlier cases. I am satisfied that the following issues raised in these present proceedings have already been dealt with in the earlier cases:-

 

 

1. Undue influence on the Plaintiff’s father (Statement of Claim at paragraph 12);
2. That an illegal and unequal transfer took place (Statement of Claim paragraph 12),
3. Inequality of bargaining power (Endorsement of Claim paragraph 3)
4. Coercion (Endorsement of Claim paragraph 4)
5. Breach of contract (Endorsement of Claim paragraph 5)
6. Claim of entitlement to lands (Statement of Claim paragraph 11)
7. Agreement void – no time limit (Statement of Claim paragraph 16)
8. Fraud (Statement of Claim paragraph 19)
9. Abuse of trust (Statement of Claim paragraph 22), and
10. Coercion, by legal proceedings (Statement of Claim paragraph 26)

 

23. As between the Plaintiff and this Defendant I consider that these issues are governed by the principles of issue estoppel and cannot now be raised again. I have considered the evidence and also the case of S C F Finance Company Limited -v- Masri & Anor (No 3) (1987: 1: Q.B.: 1028) in reaching the foregoing conclusion. I deal with the balance of the claims against the Defendant as follows:-

 

 

11. Evasion of Land Commission consent.
12. In my opinion no reasonable cause of action is made out in this regard.

 

 

12. Libel.
13. In my opinion no reasonable cause of action as made out in this regard given that the occasions pleaded clearly enjoy the benefit of qualified privilege.

 

 

13. Wrongful death.
14. No case is made out on the pleadings for this serious and distressing allegation.

 

 

14. Conspiracy.
15. No reasonable cause of action is made out having regard to the overall material available before me.

 

 

15. Fraud on the Revenue.
16. Again, having regard to all the material available before me no reasonable cause of action is made out in this regard.

 

 

29. In addition to the foregoing I am obliged to conclude having regard to the overall volume of material placed before me that the litigation is extremely onerous to this Defendant and in the circumstances I consider that I am further obliged to strike out the proceedings as against this Defendant pursuant to the inherent jurisdiction of the Court.

 

 

Sixth Defendant

30. The case made against this Defendant concerns alleged failure and frustration in regard to the conduct of the Plaintiff’s and the Plaintiff’s father’s earlier civil proceedings.

 

31. This Defendant submits that the intervention of a Court Order breaks the chain of causation between any alleged wrongdoing and the result, with the consequence that there can be no loss in respect of which the present Plaintiffs could recover and therefore the Plaintiff’s father could have no complaints. With regard to the present Plaintiff it is submitted that this Defendant was entitled on the material before me to proceed upon the basis that she was acting for William Ewing, accepted her instructions from him and therefore that these proceedings disclose no cause of action at the suit of this Plaintiff against this Defendant. In my view this submission is correct. It is not open to this Plaintiff to re-litigate his father’s case or to attempt to reopen the instructions given by his father to this Defendant. No reasonable cause of action is disclosed and therefore I must strike out the claim against this Defendant.

 

 

Second Defendant

32. Regarding the several complaints made against this Defendant it is submitted that these proceedings are statute barred given that they commenced in May, 1999 and the matters pleaded against this Defendant occurred between 1975 and 1988. In addition Counsel for this Defendant adopts the submissions already referred to in this judgment in relation to the exercise by me of my inherent jurisdiction. It is also submitted that this Plaintiff has no locus standi to make claims on behalf of his father.

 

33. In my opinion these submissions are well-founded. It is inconceivable that the Plaintiff’s case can succeed against this Defendant and therefore I must strike it out.

 

 

Third Defendant

34. Similar points were made on behalf of the third Defendant who acted for this Plaintiff’s father between May and October, 1988.

 

35. It seems to me, similarly, that there can be no answer to a plea that the case is statute barred against this Defendant. Accordingly, I strike it out.

 

 

The Seventh, Eighth and Ninth Defendants

36. These Defendants are in a different situation. They are facing a motion for judgment in default of defence. Their submission was to have the time enlarged to enable them to file a late defence.

 

37. As I explained to the Plaintiff in the course of the hearing it is the virtually invariable practice of the Court to grant such liberty once it appears that a defence might be available to a Defendant, albeit, perhaps, that the enlargement of time would be granted on terms.

 

38. Accordingly, I propose to give these Defendants two weeks from today’s date to file their defences.

 

39. In conclusion, I wish to repeat what I said at the beginning, namely, that in dealing with the applications I am confined to a consideration of technical issues which are concerned with pleading, the legal concepts of a cause of action, legal causation and recoverable loss, rather than with any evaluation of the matters which are clearly of concern to the Plaintiff and are the subject of his complaint, but which are, in my opinion, incapable of being made the subject of justiciable controversy in legal proceedings in these Courts. I wish to say to the Plaintiff – although it is, of course, gratuitous of me to do so – that the justice which he seeks, and in which he has expressed confidence is not available at the behest of any Court on this earth so far as I am concerned but it may indeed, be available in some more exalted, perhaps infinite, dispensation. It is clear that the Plaintiff has put enormous time and energy into these proceedings and equally that my decisions will be difficult for him to cope with.

 

40. But apart from the Plaintiff I must also bear in mind the interests of the other parties to this litigation – the six Defendants who have brought these applications. Litigation is onerous and takes a heavy toll of all involved in it. It is my duty if I am convinced, as in this case I am, that a Plaintiff’s case has no conceivable hope of success, to strike it out when asked to by the Defendant rather than let it proceed to the cost and pain of all parties involved and with no conceivable legitimate gain. I would add that in reaching my judgment on these applications I have taken into account the vast bulk of documentation and its contents prepared by the Plaintiff and the fact that much of it is irrelevant to any conceivable justiciable issue which could be raised between the parties.

 

41. It follows from my decision that the Plaintiff’s motions for judgment against these Defendants in this case which are before me must inevitably fall with the case itself and these therefore I must also dismiss.

 

 Fagan v. Burgess

[1997] IEHC 19 Barron J

 

1. This action, insofar as it relates to the first four Defendants, relates to the beneficial ownership of shares in the Third named Defendant. As regards the Fifth named Defendant, it is a claim for damages for wrongful disclosure of confidential and/or privileged information. The Statement of Claim refers to two specific matters:-

 

 

(1) that privileged correspondence was included in an Affidavit sworn by the Fifth named Defendant in other proceedings in which she was acting as his Solicitor in which Allied Irish Banks Plc. was plaintiff and the Plaintiff, May Malone and Greendale Developments Limited, were defendants;

(2) that in relation to the present proceedings she used confidential information given by the Plaintiff to her in relation to his present claim in order to advise the transfer of property from the Third named Defendant to the Fourth named Defendant. The Plaintiff has also claimed that other cases of wrongful disclosure would become apparent following discovery of documents.

 

2. The hearing of the present application focused entirely on Notices for Particulars and replies thereto in relation to improper disclosure. The case of the Fifth named Defendant, in essence, was that no disclosure other than in the A.I.B. proceedings had been shown and that any claim in relation to such allegation should be litigated separately. It was also submitted that voluntary discovery had been offered and refused, and that no application for discovery had been made in the proceedings.

 

3. From the documentation, it is clear that apart from the A.I.B. proceedings, the only allegation is the second one contained in the Statement of Claim. While, it appeared originally to be contended that further disclosures would become apparent following discovery, the latest replies to Notices for Particulars refer to “in the event” of any such becoming apparent. Accordingly, the claim under this heading relates solely to the disclosure of how the Plaintiff intends to prove his case.

 

4. The Fifth named Defendant submits that in fact there was no valid claim since answers to particulars are contradictory. I propose to set out the relevant material. By a letter for particulars dated the 10th May, 1995 written on behalf of the First and Second named Defendants, the Plaintiff was asked inter alia:-

 

“7. Please state whether the Plaintiff contends that the Fifth named Defendant was retained solely by him in his personal capacity. If the Fifth named Defendant was retained by the Plaintiff on behalf of any other party, please identify same.”

 

5. The reply to that question given on the 23rd June, 1995 was as follows:-

 

 

“The Plaintiff retained the Fifth named Defendant in his personal capacity. The Plaintiff’s wife also retained the Fifth named Defendant, Greendale Developments Limited also retained the Fifth named Defendant. Dorcorn Developments also retained the Fifth named Defendant. The Plaintiff and the First named Defendant jointly retained the Fifth named Defendant. The Plaintiff on occasions was accustomed to discussing with the Fifth named Defendant matters in which she was retained, not by the Plaintiff, but by the other specified parties.”

 

6. On the 20th July, 1995 the same Defendants sought further particulars of this answer as follows:-

 

 

“7. The Plaintiff has identified the parties by whom the Fifth named Defendant was retained. The Plaintiff states that he was accustomed to discussing with the Fifth named Defendant matters in which he was retained, not by the Plaintiff, but by the other parties. Please identify which of the other parties specified the Plaintiff is referring to and give particulars of the matters referred to if same relate to Greendale Developments Limited, the First and the Third named Defendants.”

 

7. The Plaintiff replied on the 1st November, 1995 as follows:-

 

 

“7. The Plaintiff discussed with the Fifth named Defendant no matter concerning Greendale Developments Limited, the First named Defendant and the Third named Defendant.”

 

8. On the basis of these questions and answers, the Fifth named Defendant submits that there is no claim to answer. In an Affidavit sworn by the Plaintiff in reply to one sworn by the Fifth named Defendant on the 3rd October, 1996, the Plaintiff explains his answer of the 1st November, 1995. So far as it is material, these averments are contained in paragraph 4 of his Affidavit, the date of swearing of which is left blank, as follows:-

 

 

“My understanding of this query (that contained in the letter dated 20th July, 1995) was that I was being asked whether I had discussed with the Fifth named Defendant any matters concerning Greendale Developments Limited, the First named Defendant and the Third named Defendant jointly, and the reply thereto was entirely correct, i.e, that I had discussed with the Fifth named Defendant “no matter” concerning these parties jointly. No transaction ever took place or was envisaged in which Greendale Developments Limited, the First named Defendant and the Third named Defendant jointly, had an input.

 

However, it would not be correct to infer from No. 7 of the replies to the notices for further and better particulars that I never discussed with the Fifth named Defendant any matter concerning Greendale Developments Limited, the First named Defendant or the Third named Defendant, I would have discussed the affairs of these various parties with her on separate occasions to derive such an inference would be entirely inconsistent with, inter alia, the specific allegation in the Statement of Claim herein…….”

 

(The underlining is that of the Plaintiff in his Affidavit.)

9. No allegation of disclosure other than that contained in the Statement of Claim is set out in this Affidavit.

 

10. These latter averments do not assist the Plaintiff. They are merely an admission that in his answer of the 1st November, 1995, he was not being candid. Nevertheless, there are two basis of claim against the Fifth named Defendant, one which has no relationship to the claim against the other four Defendants and one which has.

 

11. I do not propose to strike out these claims. It is a matter for the trial Judge as to the manner in which and the time at which they should be heard. Nor do I propose to strike out the pleadings for failure to reply adequately to the Notices for Particulars. It is clear that the Plaintiff cannot go beyond the Statement of Claim. He will be confined to these two allegations.

 

12. Accordingly no Order will be made on the Motions herein.

 

 

Fagan v. McQuaid

[1998] IEHC 69

 

JUDGMENT of Mr. Justice O’Higgins delivered the 12th day of May 1998 .

 

This is the Defendant’s Motion to strike out the proceedings pursuant to

1. Order 19 Rule 28 of the Rules of the Superior Court or alternatively pursuant to the inherent jurisdiction of the Court to do so.

 

2. The Plaintiff’s action is to set aside an Order of the High Court made on

 

the 12th day of March, 1996 and an Order of the Supreme Court dated the 20th day of February, 1997 affirming the High Court Order, on the grounds that the Orders were procured by fraud, to wit the perjury of a witness in the proceedings. The Orders sought to be set aside were made in proceedings under Section 298 of the Companies Act entitled:

3. In the Matter of Greendale Developments Limited (in liquidation) and

 

4. In the Matter of the Companies Acts, 1963-1990. The proceedings were heard over 3 days commencing 30th January, 1996 before the then President of the High Court, Mr. Justice Costello who delivered judgment on the 12th March, 1996. The matter was appealed to the Supreme Court and was argued over a number of days. The judgment of the Supreme Court was delivered by Keane J. on 20th February, 1997.

 

 

THE LAW

5. It is not disputed that the Court has jurisdiction to strike out or stay proceedings in an appropriate case either pursuant to Order 19 Rule 28 of the Rules of the Superior Court or pursuant to its inherent jurisdiction.

 

6. The Court’s jurisdiction to strike out a Plaintiff’s claim which is frivolous or vexatious or as an abuse of the process is usefully summarised in the judgment of Murphy J. in the case Bruno Tassan Din and Arbourfield Ltd. Plaintiffs -v- Banco Ambrosiano S.P.A. and Others 1991 1 I.R. page 569 at page 572. He said as follows:-

 

 

“There is no room for debate as to approach which this court should take in dealing with an application of that nature. It is set out clearly in a series of decided cases.

In Blair -v- Crawford [1906] 1 I.R. 578 at 586 Pallas C.b. said:

‘….in acting under that summary jurisdiction to stay proceedings upon the ground that they are an abuse of the process of the Court, and before making a summary order to stay, which deprives a plaintiff of that which is, prima facie, his legal right, i.e. his right of having his action brought to trial, the Court ought to be astute to see that there is no real question capable of being tried’…………….

In Barry -v- Buckley [1981] I.R. 306 Costello J. advised the same cautious approach in staying proceedings and also adverted to the right to refer to documentation other than the pleadings of the parties in the following terms at p. 308 of the judgment :-

‘But apart from Order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practise (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Court does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff’s case must fail, then it should be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant'”

 

7. Later in the same judgment Murphy J. said as follows:-

 

“Put another way the application to dismiss the present action on the grounds that it is vexatious or an abuse of the process 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 (p. 575). ”

 

8. In the same judgment at page 582 the learned judge went on:-

 

 

“Again in the ampthill peerage case 1977 AC 547 Lord Wilberforce in considering the nature of the fraud or collusion which would justify setting aside a judgment of the Court commented (at P. 571) as follows:

‘.. – What is fraud for this purpose? Learned Counsel for John Russell without venturing on a definition suggested that some kind of equitable fraud, or lack of frankness, was all that is meant, but I cannot accept so anaemic an ingredient. In relation to judgments, and this case is surely afortiori or at least analogous, it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and a declaration must be obtained by it. Authorities as to judgments make clear that anyone wishing to attack a judgment on the grounds of fraud must make his allegation with full particularity, must when he states it be prepared to prove what he alleges and ultimately must strictly prove it ‘ (emphasis added)

9. The Authorities therefore establish the following propositions:

 

(a) A judgment obtained by fraud in any court may be set aside

(b) In adjudicating on an application to have the proceedings stayed, as in the present case, the Court must proceed on the assumption that the Plaintiff will be able to prove the matters contained in the Statement of Claim.

(c) The Court must not adjudicate on the merits of the case, but must judge as to whether, if the Plaintiff proves those allegations, he has a reasonable chance of success.

 

10. A number of legal issues were argued before me for consideration in applying the principles set out above.

 

1. In order to set aside a judgment for fraud does that fraud have to be the fraud of the successful party or his agents?
2. If the fraud has to be the fraud of a successful party to the litigation – do different considerations apply to a court appointed Liquidator?
3. Does the material on which the application to set aside the judgment is based, have to consist of facts discovered since the judgment, and which could not reasonably have been ascertained beforehand?
4. Is the material before this court capable of being “new evidence”?
5. Having regard to the decision of the High Court and the decision of the Supreme Court is the matter res judicata?

 

11. There were further grounds on which it was argued that judgment

 

should be set aside. It was contended that the trial was in contravention of Article 6.1 of the

12. Convention in Human Rights insofar as the trial was unfair because of the refusal to grant an

 

adjournment in the High Court. It was also submitted that the decision of the Supreme

13. Court on the ultra vires point was per incurium. I declined to adjudicate on these points on

 

the basis that they are matters that have been argued before and adjudicated on by the

14. Supreme Court and were not, therefore, appropriate matters for my consideration.

 

15. It seems appropriate to see what part of the judgment obtained by the Liquidator is in dispute in these proceedings, and to examine those matters to ascertain whether the judgment obtained in respect of these sums was dependant on the evidence of Mr Burgess which is alleged to be perjured. If it appears that the evidence of Mr Burgess sought to be impugned could not reasonably be held to have had decisive bearing on, or could not reasonably have altered the judgment obtained, the motion of the Defendants should succeed regardless of the determination of the other legal issues. If, on the other hand, the challenged evidence of Mr Burgess, as set out in the statement of claim, could be held to give the Plaintiff a reasonable chance of success in having the judgment obtained set aside, the Plaintiff is entitled to continue his proceedings (subject to being able to surmount the other legal obstacles). Dr Forde argues that this is an incorrect approach, and that if any part of the judgment was or could be held to have been obtained by fraud the whole of the judgment must be set aside. He relies on a passage in Jonesco and Beard 1930 Appeal Cases at p. 298 whereat page 301 Lord Buckmeister said “Fraud is an insidious disease and if clearly proved to have been used so that it might deceive the court, it spreads to and infects the whole body of the judgment” . That case, however, concerned a dispute between two parties about a claim for a share of eight named horses. In addition the Plaintiff claimed that money was due to him for the sale of two other racehorses. The alleged fraud there would contaminate both parts of the judgment since it was inextricably tied up with the veracity of a party. The situation seems to me quite different however, where, (as in this case), some parts of the judgments are not, and cannot be, attributable to any of the evidence sought to be impugned. In my view, the findings of the High Court affirmed on appeal by the Supreme Court, and which are not in any way dependant on the matters alleged in the Plaintiff’s claim, should be differentiated from matters allegedly dependant on the Plaintiff’s claim. In that context the matters agreed to be at issue between the parties are as follows:

 

 

1. Cheque payments made on behalf of Mr. and Mrs. Fagan £145,357.
2. Legal fees discharged by the company on behalf of Mr. and Mrs. Fagan

(part of) £26,098.

3. Credit card expenses of Mr. Fagan discharged by the company £30,487.
4. Payments made by the company to Mr. Fagan’s brother, to Stephen Fagan trading as Classical Architectural Stone, and a number of payments to Ulster Bank for the benefit of Mr. Fagan £34,189.
5. Springfield monies (part of) £129,714.58.

 

16. I propose to deal with these matters seriatim.

JUDGMENT of Mr. Justice O’Higgins delivered the 12th day of May 1998 .

 

This is the Defendant’s Motion to strike out the proceedings pursuant to

1. Order 19 Rule 28 of the Rules of the Superior Court or alternatively pursuant to the inherent jurisdiction of the Court to do so.

 

2. The Plaintiff’s action is to set aside an Order of the High Court made on

 

the 12th day of March, 1996 and an Order of the Supreme Court dated the 20th day of February, 1997 affirming the High Court Order, on the grounds that the Orders were procured by fraud, to wit the perjury of a witness in the proceedings. The Orders sought to be set aside were made in proceedings under Section 298 of the Companies Act entitled:

3. In the Matter of Greendale Developments Limited (in liquidation) and

 

4. In the Matter of the Companies Acts, 1963-1990. The proceedings were heard over 3 days commencing 30th January, 1996 before the then President of the High Court, Mr. Justice Costello who delivered judgment on the 12th March, 1996. The matter was appealed to the Supreme Court and was argued over a number of days. The judgment of the Supreme Court was delivered by Keane J. on 20th February, 1997.

 

 

THE LAW

5. It is not disputed that the Court has jurisdiction to strike out or stay proceedings in an appropriate case either pursuant to Order 19 Rule 28 of the Rules of the Superior Court or pursuant to its inherent jurisdiction.

 

6. The Court’s jurisdiction to strike out a Plaintiff’s claim which is frivolous or vexatious or as an abuse of the process is usefully summarised in the judgment of Murphy J. in the case Bruno Tassan Din and Arbourfield Ltd. Plaintiffs -v- Banco Ambrosiano S.P.A. and Others 1991 1 I.R. page 569 at page 572. He said as follows:-

 

 

“There is no room for debate as to approach which this court should take in dealing with an application of that nature. It is set out clearly in a series of decided cases.

In Blair -v- Crawford [1906] 1 I.R. 578 at 586 Pallas C.b. said:

‘….in acting under that summary jurisdiction to stay proceedings upon the ground that they are an abuse of the process of the Court, and before making a summary order to stay, which deprives a plaintiff of that which is, prima facie, his legal right, i.e. his right of having his action brought to trial, the Court ought to be astute to see that there is no real question capable of being tried’…………….

In Barry -v- Buckley [1981] I.R. 306 Costello J. advised the same cautious approach in staying proceedings and also adverted to the right to refer to documentation other than the pleadings of the parties in the following terms at p. 308 of the judgment :-

‘But apart from Order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practise (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Court does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff’s case must fail, then it should be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant'”

 

7. Later in the same judgment Murphy J. said as follows:-

 

“Put another way the application to dismiss the present action on the grounds that it is vexatious or an abuse of the process 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 (p. 575). ”

 

8. In the same judgment at page 582 the learned judge went on:-

 

 

“Again in the ampthill peerage case 1977 AC 547 Lord Wilberforce in considering the nature of the fraud or collusion which would justify setting aside a judgment of the Court commented (at P. 571) as follows:

‘.. – What is fraud for this purpose? Learned Counsel for John Russell without venturing on a definition suggested that some kind of equitable fraud, or lack of frankness, was all that is meant, but I cannot accept so anaemic an ingredient. In relation to judgments, and this case is surely afortiori or at least analogous, it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and a declaration must be obtained by it. Authorities as to judgments make clear that anyone wishing to attack a judgment on the grounds of fraud must make his allegation with full particularity, must when he states it be prepared to prove what he alleges and ultimately must strictly prove it ‘ (emphasis added)

9. The Authorities therefore establish the following propositions:

 

(a) A judgment obtained by fraud in any court may be set aside

(b) In adjudicating on an application to have the proceedings stayed, as in the present case, the Court must proceed on the assumption that the Plaintiff will be able to prove the matters contained in the Statement of Claim.

(c) The Court must not adjudicate on the merits of the case, but must judge as to whether, if the Plaintiff proves those allegations, he has a reasonable chance of success.

 

10. A number of legal issues were argued before me for consideration in applying the principles set out above.

 

1. In order to set aside a judgment for fraud does that fraud have to be the fraud of the successful party or his agents?
2. If the fraud has to be the fraud of a successful party to the litigation – do different considerations apply to a court appointed Liquidator?
3. Does the material on which the application to set aside the judgment is based, have to consist of facts discovered since the judgment, and which could not reasonably have been ascertained beforehand?
4. Is the material before this court capable of being “new evidence”?
5. Having regard to the decision of the High Court and the decision of the Supreme Court is the matter res judicata?

 

11. There were further grounds on which it was argued that judgment

 

should be set aside. It was contended that the trial was in contravention of Article 6.1 of the

12. Convention in Human Rights insofar as the trial was unfair because of the refusal to grant an

 

adjournment in the High Court. It was also submitted that the decision of the Supreme

13. Court on the ultra vires point was per incurium. I declined to adjudicate on these points on

 

the basis that they are matters that have been argued before and adjudicated on by the

14. Supreme Court and were not, therefore, appropriate matters for my consideration.

 

15. It seems appropriate to see what part of the judgment obtained by the Liquidator is in dispute in these proceedings, and to examine those matters to ascertain whether the judgment obtained in respect of these sums was dependant on the evidence of Mr Burgess which is alleged to be perjured. If it appears that the evidence of Mr Burgess sought to be impugned could not reasonably be held to have had decisive bearing on, or could not reasonably have altered the judgment obtained, the motion of the Defendants should succeed regardless of the determination of the other legal issues. If, on the other hand, the challenged evidence of Mr Burgess, as set out in the statement of claim, could be held to give the Plaintiff a reasonable chance of success in having the judgment obtained set aside, the Plaintiff is entitled to continue his proceedings (subject to being able to surmount the other legal obstacles). Dr Forde argues that this is an incorrect approach, and that if any part of the judgment was or could be held to have been obtained by fraud the whole of the judgment must be set aside. He relies on a passage in Jonesco and Beard 1930 Appeal Cases at p. 298 whereat page 301 Lord Buckmeister said “Fraud is an insidious disease and if clearly proved to have been used so that it might deceive the court, it spreads to and infects the whole body of the judgment” . That case, however, concerned a dispute between two parties about a claim for a share of eight named horses. In addition the Plaintiff claimed that money was due to him for the sale of two other racehorses. The alleged fraud there would contaminate both parts of the judgment since it was inextricably tied up with the veracity of a party. The situation seems to me quite different however, where, (as in this case), some parts of the judgments are not, and cannot be, attributable to any of the evidence sought to be impugned. In my view, the findings of the High Court affirmed on appeal by the Supreme Court, and which are not in any way dependant on the matters alleged in the Plaintiff’s claim, should be differentiated from matters allegedly dependant on the Plaintiff’s claim. In that context the matters agreed to be at issue between the parties are as follows:

 

 

1. Cheque payments made on behalf of Mr. and Mrs. Fagan £145,357.
2. Legal fees discharged by the company on behalf of Mr. and Mrs. Fagan

(part of) £26,098.

3. Credit card expenses of Mr. Fagan discharged by the company £30,487.
4. Payments made by the company to Mr. Fagan’s brother, to Stephen Fagan trading as Classical Architectural Stone, and a number of payments to Ulster Bank for the benefit of Mr. Fagan £34,189.
5. Springfield monies (part of) £129,714.58.

 

16. I propose to deal with these matters seriatim.

 

 

1. THE SUM OF £145,357 CHEQUE PAYMENTS MADE ON BEHALF OF MR. AND MRS. FAGAN
2. It is not in dispute that cheques to the value of £255,894 were identified by Mr. Fagan himself in his Statement of Affairs in the proceedings under Section 298 of the Companies Act as being cheque payments made to or on behalf of Stephen Fagan and Mai Malone. From this sum, prima facie due, the Plaintiff deducted a sum of £77,800 in respect of monies paid to Stephen Fagan from 1st June, 1989 to the 8th August, 1994 in respect of wages and a further sum of £32,737 in respect of payments made by Stephen Fagan trading as Classical Architectural Stone leaving a balance of £145,357. Mr. Fagan claimed that extra monies were due to him as wages. He had no documentation to support his claim and PAYE and PSRI was paid on the basis of a £1,200 salary. He said in his Affidavit and in evidence that an agreement was made that he be paid £2,000 per month, and that the Liquidator only gave him credit for the £1,200 a month which was actually paid and not the balance due to him. Mr Burgess in his evidence denied any such agreement and said that the £1,200 was the sum agreed. The President of the High Court at page 7 of his judgment said:

 

 

“The Liquidator in my opinion correctly disallowed this claim. There is no evidence to support it and I accept the evidence of Mr. Burgess that the company never agreed to pay the wages now claimed by

Mr. Fagan. The deduction proposed by the Liquidator is therefore the correct one”.

 

18. While it is reasonable to suggest that the rejection by the Liquidator of the claim for £2,000 a

 

month could stand without the evidence of Mr. Burgess (in view of the finding that there was

no evidence to support it, and since there is no documentation to support it), nevertheless it

seems to me that the Burgesses’ evidence could have been a factor in the decision. However,

in the Supreme Court the following statement of law was made in the Section 298

proceedings by Keane J. at page 35 of the judgment:-

 

“The authorities proceed on the basis that the corresponding sections in England for the Liquidator an expeditious summary remedy to recover monies or property of the company wrongfully spent or misapplied by an officer and that to allow cross-claims by the officer to be litigated on such an application would be inconsistent with the nature of the remedy provided.

 

I am satisfied that the submission made on behalf of the Liquidator is correct and that, even if the sums claimed by Mr. Fagan were recoverable against the company, they could not properly be set off against the sums found to be owing by him to the company”.

 

19. On the basis of that decision the sum claimed for additional wages could not be recovered in

 

the Section 298 proceedings as is set off and accordingly Mr. Burgess’ evidence could not

have been relevant or decisive.

 

20. This is the position notwithstanding the fact that these matters were not dealt with in the “set

 

off” portion of the decision of the High Court and the decision of the Supreme Court.

 

 

O’Keeffe v. Kilcullen

[1998] IEHC 101

O’Sullivan J

 

JUDGMENT of O’Sullivan J. delivered on the 24th day of June 1998

 

1. This is an application on behalf of the third named Defendant for an Order dismissing the Plaintiff’s action against this Defendant for want of prosecution pursuant to Order 27 Rule 1 of the Rules of the Superior Courts and further for an Order in the alternative that the Plaintiff’s action against this Defendant be dismissed pursuant to Order 19 Rule 28 of the said Rules on the grounds that the proceedings do not in any event disclose any reasonable cause of action against this Defendant.

 

2. With regard to the first ground, I agree with the submission of Miss Dunne S.C. on behalf of the Plaintiff that I should not dismiss the Plaintiff’s action on this basis because this action is now in the hands of Solicitor and Counsel in compliance with the Order of Mr. Justice Johnson.

 

3. With regard to the alternative claim, namely, that the Plaintiff’s action should be dismissed as disclosing no reasonable cause of action, I accept the following propositions of law as submitted by Miss Dunne S.C. who refers me in particular to the judgment of Kelly J. in Bernadette Ennis -v- Colm Butterly ( 1996:1:IR:426 and in particular page 431 ) namely, that in dealing with this application I must assume

 

(a) that every fact pleaded by the Plaintiff in her Statement of Claim is correct and can be proved at trial, and

(b) that every fact attested by her on Affidavit is likewise correct and can be proved at trial.

 

4. This means that I must accept fully all averments pleaded and all assertions deposed to on the Plaintiff’s behalf even where these are traversed in opposing pleadings or are contested on Affidavit.

 

5. I must, in other words, deal with this application solely upon the basis of the case, including evidence and pleadings, submitted on behalf of the Plaintiff. In relation to the standard of proof, furthermore, I accept, as submitted by Miss Dunne S.C., that the threshold at this stage is low from the point of view of the Plaintiff.

 

6. Even accepting all of this, as I must and do, however, Counsel for the third Defendant, Mr. Gleeson, says that any alleged negligence and/or breach of duty on the part of this Defendant could not conceivably have caused the loss and harm of which the Plaintiff complains in these proceedings.

 

7. This arises because, it is submitted, the Plaintiff was free to cross-examine the third Defendant, in relation to any alleged inaccuracies, shortcomings or errors in her report in the course of the earlier proceedings before Blayney J., so that any harm or loss which is now complained of by the Plaintiff in these proceedings did not directly flow from any such limitations in the report (or evidence) of the third named Defendant, but rather from the judgment of the learned trial Judge.

 

 

8. It goes without saying that the third named Defendant in these proceedings cannot in any way be held liable for the conduct of the proceedings before Blayney J., including the granting of, refusal of, or length of adjournments therein.

 

9. The relief claimed in these proceedings by the Plaintiff against the third Defendant is damages, interest, and costs.

 

10. In my view the submission made on behalf of the third Defendant is well founded: it follows that a finding of negligence or breach of duty on the part of the third Defendant based on the facts and pleadings relied on by the Plaintiff in these proceedings could not possibly result in an award of compensatory damages against the third Defendant. It would, at best, be a case of injuria sine damno.

 

11. I also wish to make clear that I am making no such findings on this application against the third named Defendant.

 

12. In these circumstances I consider that I should accede in principle to the application made on behalf of the third named Defendant and should make an Order striking out such parts of the Statement of Claim as assert a cause of action against this Defendant.

 

13. It seems to me that the paragraphs which should be struck out are paragraphs 12, 13, 14 and 15 (together with the particulars of negligence set out in paragraph 15) but I would ask Counsel to consider this and if not in agreement to revert to me.

 

14. I should also clarify that I am making the above Order on the basis of the inherent jurisdiction of the Court rather than specifically in reliance on the provisions of Order 19 Rule 28 and for the following reason:

 

15. Where a Court makes a finding in favour of a Plaintiff on the basis of injuria sine damno (which, as I say, is the very best the Plaintiff could do in the present case in my view) the Court would normally make an award of nominal damages.

 

16. Nominal damages means a sum of money that may be spoken of but has no existence in point of quantity, the purposes of such damages being twofold, namely, either to assert a right or as a “peg” on which to hang an Order for costs.

 

17. The Plaintiff in the present case seeks compensatory damages (together with interest) and as I say she could not possibly succeed in obtaining an award under this head. It would be quite wrong and unjust to the third Defendant, in my view, if the Plaintiff’s case against her were permitted to proceed merely to enable the Plaintiff to generate an entitlement to an Order for costs of the action against the third Defendant. That being the case, I consider that the Order which I now make should be made in the exercise of my inherent jurisdiction as it entails the exercise of an element of discretion on my part.

 

 

O’Neill v. Ryan & Ors

[1989] IEHC 3; [1990] ILRM 140

JUDGMENT of Lynch J. delivered on the 24th day of November 1989

 

Introduction and the Facts

This is a motion brought by the last four defendants that the plaintiff’s action as against the said defendants be dismissed or stayed under the inherent jurisdiction of the court and under 0. 19 r. 28 of the Rules of the Superior Courts on the grounds that the plenary summons and statement of claim disclose no reasonable cause of action against the said defendants and that such action (if any) as is disclosed by the pleadings is not maintainable at the suit of the plaintiff personally and is bound to fail.

 

On such a motion it seems to me that the proper approach is to study carefully the statement of claim in order to see exactly what is alleged and what is claimed therein and to assume that all allegations made therein will be established. Then, having made that assumption, I must decide whether or not the statement of claim discloses any reasonable cause of action vested in the plaintiff against the last four defendants claim for damages and other relief for breach of contract and wrongful dismissal of the plaintiff from his office as chief executive of the second defendant. That claim is made only against the first and second defendants: the other defendants, being the last four defendants (the moving parties in this motion) are not concerned with it at all.

 

The statement of claim makes claims against the last four defendants singly, collectively, and collectively with the first defendant for alleged breaches of Articles 85 and 86 of the Treaty establishing the European Economic Community (the Treaty) and for alleged conspiracy causing damage to the plaintiff. It is these claims which are the subject of the last four defendants’ motion to dismiss or stay and the terms of the statement of claim in relation to them must therefore be considered in detail.

 

No allegation of any wrongdoing is made against any of the last four defendants in the first 16 paragraphs of the statement of claim. Those paragraphs contain descriptions of all the parties to the action and also, in the case of the plaintiff, an averment that he is the owner of 7.2% of the issued share capital of the second defendant and was chief executive of the second defendant until 6 September 1988. Those paragraphs also contain allegations in relation to the plaintiff’s claim against the first and second defendants for damages for breach of contract and wrongful dismissal.

 

Paragraph 17 of the statement of claim is as follows:

 

As a consequence of the success of the second named defendant’s business arid the introduction of serious competition for the first time on air routes between Ireland and the United Kingdom, the third named defendant adopted anti-competitive practices and policies which infringed the rules on competition of the European Economic Community and in particular Articles 85 and 86 of the EEC Treaty. The plaintiff pleads that the third named defendant holds a dominant position in the air services market between Ireland and the United Kingdom and has and continues to adopt illegal and unlawful policies in confronting the competition presented by the second named defendant. The following are pleaded, inter alia, as particulars.

(a) Abusing a dominant position within the common market (or in a substantial part thereof) and affecting trade between member states by directly and indirectly imposing unfair selling prices contrary to Article 86(2)(a) of the EEC Treaty. Predatory pricing policies were adopted by the third named defendant on routes where there was competition with the second named defendant.

(b) Abusing a dominant position within the common market or in a substantial part thereof and affecting trade between member states by directly and indirectly imposing unfair trading conditions contrary to Article 86(2)(a) of the EEC Treaty. Without any market requirement, the third named defendant provided excess capacity on routes directly competing with the second named defendant including routes which the third named defendant had earlier declared to be uneconomic and where the third named defendant had requested government subsidies as a condition for the operation of these routes.

(c) Abusing a dominant position within the common market or a substantial part thereof and affecting trade between member states by limiting production and markets to the prejudice of consumers contrary to Article 86(2)(h) of the EEC Treaty. The third named defendant maintained much higher prices on routes where there was no competition from the second named defendant. On routes where there was such competition from the second named defendant, the third named defendant adopted predatory pricing policies including the selling of seats at uneconomic prices.

(d) Abusing a dominant position within the common market or a substantial part thereof and affecting trade between member states by taking selective actions against the second named defendant in breach of Article 86 of the EEC Treaty. The third named defendant offered certain ‘free’ gifts as consumer fidelity incentives on routes which compete with those of the second named defendant including free hotel accommodation and free car hire.

It is quite clear that the allegations in paragraph 17 of the statement of claim are of wrongs committed by the third defendant against the second defendant.

 

Paragraph 18 of the statement of claim is as follows:

 

The plaintiff further pleads that as a consequence of advices and meetings between the first, fifth and sixth named defendants their respective servants or agents advices that were unlawful and prohibited by the competition rules of the European Economic Community were furnished to the third and fourth named defendants so as to enable the said defendants deal with a deregulated air transport market and/or the threats posed by the presence of genuine competition for the provision of air services within and without the State. The plaintiff pleads that subsequent to the establishment of the second named defendant as a genuine competitor with the third named defendant at a date which cannot be specified until discovery herein, secret meetings took place between the first, fifth and sixth named defendants their respective servants or agents of the one part and the third and fourth named defendants their respective servants or agents of the other part. The plaintiff pleads that the said meetings dealt with and discussed matters prohibited by the competition rules of the European Community. Prior to discovery herein, the following are pleaded inter alia as particulars.

(a) Entering into agreements, decisions or concerted practices which affect trade between member states and which have as their object or effect the prevention restriction or distortion of competition within the common market by sharing markets or sources of supply in breach of Article 85(1)(c) of the EEC Treaty.

(b) Entering into discussions concerning agreements decisions and concerted practices affecting trade between member states and which have as their object or effect the prevention restriction or distortion of competition within the common market in contemplating matters specifically prohibited by the competition rules of the European Economic Community and in particular Articles 85 and 86 thereof.

(c) Giving advice to the third and fourth named defendants which have as their inevitable consequence the adoption of policies which are in breach of the competition rules of the European Economic Community and in particular Articles 85 and 86 thereof. The first, fifth and sixth named defendants their respective servants or agents furnished the third and fourth named defendants with advices in competition strategy and policy which infringed the competition rules aforesaid. The plaintiff pleads that the said advices were used in part by the third and fourth named defendants in adopting the anti-competitive practices against the second named defendant as herein before particularised.

I am satisfied that the true meaning of paragraph 18 is that the first, fifth and sixth defendants unlawfully advised the third and fourth defendants to implement policies and practices of competition with the second defendant for air transport business which were contrary to the competition rules of the Treaty.

 

Paragraph 19 of the statement of claim is as follows:

 

The plaintiff has suffered loss and damage as a consequence of the alleged unlawful actions of the first, third, fourth, fifth and sixth named defendants. The value of the plaintiff’s shareholding in the second named defendant has been greatly reduced. In the premises the plaintiff claims damages for breach of directly applicable provisions of Community law.

This paragraph speaks for itself and makes it quite clear that the damage alleged to be suffered by the plaintiff is the alleged reduction in value of his shareholding in the second defendant by the damage allegedly caused to the second defendant by the alleged wrongful conduct of the first defendant and the last four defendants.

 

Paragraph 20 of the statement of claim is as follows:

 

The plaintiff further pleads that the actions of the first, fifth and sixth named defendants of the one part and the third and fourth named defendants of the other part to advise and recommend the unlawful and anti-competitive means of confronting competition in the air transport sector together with the secret meetings that took place between the said parties referred to in paragraph 18 herein and the damage thereby suffered by the plaintiff amounts to a conspiracy on the said defendants’ part. The plaintiff pleads that as a consequence of the unlawful means utilized by the said defendants to advance their business interests the plaintiff has suffered loss and damage. In the premises the plaintiff pleads that the first, third, fourth, fifth and sixth named defendants their respective servants or agents wrongfully and maliciously conspired and combined amongst themselves to injure the plaintiff. The particulars pleaded in paragraphs 17 and 18 herein are repeated mutatis mutandis as particulars of the unlawful means alleged in respect of the said conspiracy.

On a first reading of this paragraph it might seem to allege a tortious conspiracy directly to injure the plaintiff. A closer reading of the paragraph however and in particular the reference back therein to paragraphs 17 and 18 as the particulars of the allegations made in paragraph 20 makes it quite clear to me that the plaintiff is not alleging any direct damage to himself but rather damage by the reduction in value of his shareholding in the second defendants by the damage allegedly caused to the second defendants by the alleged wrongful conduct of the first defendant and the last four defendants. This construction of paragraph 20 is reinforced by the prayer or claim in paragraph 24 at subparagraph (1) which is as follows:

 

A declaration that the advices guidance or directions furnished aforesaid and the meetings held between the first named defendant, the fifth named defendant and or the sixth named defendant their respective servants or agents and the third named defendant and the fourth named defendant their servants or agents amount to a conspiracy agreement combination or concerted practice between the said parties to damage the value of the shareholding in the second named defendant including those shares held by the plaintiff.

Paragraphs 21 and 22 of the statement of claim, while complaining of the loss and damage suffered by the second defendant and the alleged reduction in value of its shares by the alleged unlawful conduct of the third defendant are actually directed against the first defendant only as is paragraph 23 which relates to the alleged wrongful dismissal of the plaintiff from his post of chief executive of the second defendant allegedly at the behest of the first defendant.

 

The last paragraph of the statement of claim is paragraph 24 which contains the prayers or claims and I have already quoted subparagraph (i) thereof. It is not necessary to quote any of the other subparagraphs except subparagraph (e) which is as follows:

 

Damages for conspiracy against the first named defendant, third named defendant, the fourth named defendant, the fifth named defendant and the sixth named defendant.

Clearly this subparagraph must be read in conjunction with subparagraph (i) already quoted above and therefore the damages referred to are the damage to ‘the value of the shareholding in the second named defendant including those shares held by the plaintiff’.

 

The motion to dismiss or stay the plaintiff’s action as against the four last defendants was grounded on four affidavits which are to all intents and purposes identical. I quote paragraph 3 of the affidavit of Oisin O’Siochru filed on behalf of the third defendants:

 

In any event, I have been advised by Aer Lingus solicitors McCann Fitzgerald and believe that the plaintiff has no locus standi to maintain these proceedings against Aer Lingus. I say and believe that the plaintiff in these proceedings is seeking to make a case against Aer Lingus in respect of alleged wrongdoing by Aer Lingus, GPA and others against Ryan Air Ltd the second named defendant. I also say and believe that as appears from paragraph 1 of the statement of claim the plaintiff is an individual shareholder in Ryan Air Ltd holding a mere 7.2% of the issued share capital thereof. In that context I am advised by Aer Lingus solicitors and believe that the plaintiff as an individual shareholder is not entitled to bring an action in this Honourable Court complaining of wrongs allegedly done to Ryan Air Ltd. If any such action is to be brought ( so I am advised and believe) it can only be at the suit of Ryan Air Ltd.

In reply to the affidavits filed on behalf of the last four defendants the plaintiff’s solicitor filed an affidavit paragraph 4 of which is as follows:

 

I beg to refer to the affidavit of Oisin O’Siochru. The said affidavit merely denies the allegations of wrongdoing against Aer Lingus plc and apart from advancing a legal argument on an alleged lack of locus standi makes no attempt whatsoever to deal with the substantial matters alleged in respect of the said defendant. I am advised that the plaintiff has the locus standi to institute these proceedings and that the said averment is based on a misinterpretation of community law. I am advised that the plaintiff has a cause of action as a private individual and natural person (as distinct from a legal person) and can claim a legitimate interest in respect of the matters complained of in these proceedings that allege breach of community law. I say that the plaintiff is a substantial private investor and shareholder in Ryan Air Ltd. I say and am advised that the 7.2% shareholding in the said defendant gives him standing to institute proceedings in respect of the matters complained of in the statement of claim herein. As a substantial shareholder and investor in the second named defendant the plaintiff complains that certain anti-competitive and illegal practices adopted by Aer Lingus in meeting the genuine competition introduced into the Irish market for the first time in Ryan Air has damaged and reduced the value of the plaintiff’s shareholding in the said undertaking. I am advised that the provenance of the plaintiff’s cause of action derived from the competition law of the European Communities and in particular the rules on competition contained in Articles 85 to 94 of the EEC Treaty. I say and am advised that the fact that a similar cause of action might also be instituted by Ryan Air Ltd against Aer Lingus in no way alters the position of the plaintiff or the cause of action instituted against the said defendant.

The submissions

Counsel for the last four defendants (the moving parties) submitted that the plaintiff’s claim against them was only as a shareholder in the second defendant and accordingly having regard to the rule in Foss v Harbottle (1843) 2 Hare 461 to the effect that an individual shareholder cannot bring an action that should properly be brought if at all by the company the claim did not lie at the suit of the plaintiff. Counsel further submitted that although Articles 85 and 86 of the Treaty had direct effect in Irish law and must therefore be enforced by Irish courts, nevertheless the articles should be enforced in the same manner and subject to the same limitations as would apply to an analogous claim under Irish national law. Consequently the rule in Foss v Harbottle should be applied to claims based on alleged breaches of Articles 85 and 86 as much as to claims based on alleged tortious conspiracy. Counsel for the last four defendants cited the authorities referred to in the first schedule to this judgment.

 

Counsel for the plaintiff (the respondent in the motion) submitted that the plaintiff is entitled as a natural person to seek to enforce Articles 85 and 86 of the Treaty and that the limitations of the rule in Foss v Harbottle did not apply to such a claim especially where, as he alleges in this case, the breaches of the articles caused damage to himself Counsel further submitted that the plaintiff was entitled to maintain his claim for damages for conspiracy causing loss and damage to himself and also for the declarations as claimed in the statement of claim. Counsel submitted that the jurisdiction to make declarations such as those sought in the statement of claim was much more widely accepted in Ireland than in the United Kingdom and that the plaintiff is therefore entitled to prosecute a claim for such declarations. Counsel for the plaintiff cited the authorities referred to in the second schedule to this judgment.

 

Conclusions

As is apparent from what I have already said, the plaintiff’s claim against the last four defendants is made solely as a shareholder in the second defendant for relief in respect of alleged wrongful conduct of the last four defendants (together with the first defendant in certain respects) causing damage to the second defendant and thereby to the plaintiff by reducing the value of the plaintiff’s shareholding in the second defendant. The plaintiff’s former status as chief executive of the second defendant has nothing to do with this claim: it is as shareholder only and not as a former officer of the second defendant that the plaintiff claims against the last four defendants.

 

In order to test the validity of the plaintiff’s claim against the last four defendants it is appropriate to consider what would necessarily follow if it is valid. A holder of 100 shares in a very large public company trading internationally throughout Europe with a capital of one hundred million shares would be entitled to maintain an action against one or more other companies large or small if he honestly believed that such other company or companies were seeking to limit his company’s international trade by unfair means contrary to the competition rules of the European Community and/or by conspiring so to do. Many such actions could be brought by individual shareholders even though the directors of the allegedly wronged company, for reasons that seemed to them to be commercially valid, did not consider that any such action should be brought by the company at all.

 

It was submitted however on behalf of the plaintiff that the rule in Foss v Harbottle does not apply to a cause of action based on a breach by other parties of the competition rules of the Treaty causing damage to the company in which the plaintiff is a shareholder. It cannot be doubted but that it is the duty of national courts to enforce and give effect to directly applicable provisions of the Treaty such as the competition rules and in particular Articles 85 and 86. I quote from the judgment of the European Court of Justice in the case of Rewe v Hauptzollamt Kiel [1981] 2 ECR 1805, 1841:

 

The system of legal protection established by the Treaty, as set out in Article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available before the national courts for the purpose of ensuring observance of community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law.

It is therefore clear that I must give effect to Articles 85 and 86 of the Treaty but it is also well settled that effect must be given by the national courts in like circumstances and subject to like limitations as would be applied by the national courts to an analogous cause of action in national law, it being clearly understood however that no limit which would wholly or substantially negative the enforcement of Articles 85 and 86 in Irish law could be applied. I quote from Halsbury (4th ed.) vol. 51 para. 3.71 at p.448:

 

Where an individual or trader wishes to enforce Community law against national authorities before national courts, the basic principle remains that, in the absence of any relevant Community rules, normal national remedies should be used provided that they do not make it practically impossible to exercise enforceable Community rights, and that these national rules are non-discriminatory and subject to the overriding obligation on national courts to protect directly effective rights under Community law. Hence the relevant national limitation periods apply if they comply with these conditions. However, whilst in a claim for restitution of sums wrongly paid to the national authorities the national courts may take account of the fact that those charges were actually passed on to the plaintiff’s customers so as to prevent the unjust enrichment of the plaintiff, if national law so provides, they cannot impose an excessive burden of proof that such charges were not passed on to the customers even if such a burden would be imposed in relation to an analagous claim arising under national law. On the other hand, if recovery for an overpayment is available on grounds of equity in relation to a national tax, it should also be available in relation to an overpayment made under Community law.

The rule in Foss v Harbottle does not wholly or substantially negative the effectiveness or enforceability of Articles 85 and 86 in Irish law. Breaches of those articles can be challenged by the company which is the victim of the breaches. The rule merely prohibits persons who are not directly affected by the breaches from maintaining an action which is more properly to be maintained, if at all, by the company in which such persons are shareholders. The desirability of avoiding a multiplicity of actions perhaps in many cases contrary to the will of the directors and/or the majority of shareholders is obviously a major factor in the thinking underlying the rule in Foss v Harbottle and demonstrates the sound sense of that thinking.

 

I am of the opinion that the plaintiff’s present action against the last four defendants is a classic case to which the rule in Foss v Harbottle applies and I accordingly dismiss the plaintiff’s action as against the last four defendants.

 

 

 

 

 

 

 

Price & Anor -v- Keenaghan Developments Ltd

[2007] IEHC 190

 

 

Clark J

 

12. This correspondence tends to confirm that the plaintiffs were prospective purchasers in the early stages of negotiations and who did not consider themselves bound to complete a purchase. While they were without doubt disappointed when they saw that their negotiations were going no further and at the lost time and expense incurred in chasing their dream, they were not prepared to match or exceed the price offered by the third party. On the 13th May, 2006, the first plaintiff who is a solicitor wrote to the estate agents in the following terms ……

“While there is no point in crying over spilt milk, we would ask in the circumstances that if the proposed sale of the house does not proceed for any reason we be given first refusal on it and as and when a further house or houses facing the water are to be built that we be advised and given an opportunity to purchase. In this regard, could you please enquire of the developer what are the general intentions in regard to the two large and one possible smaller site which remain. We would have a preference for a larger one as the design of No. 12 rather than the price was the main issue.”

13. A few days later however the disappointed tone had hardened into an allegation for the first time that the developer and their agents had no right to sell the property to another party. In a letter written by another solicitor in the same firm it was stated that;

“as a concluded oral contract existed where clear and precise terms were proposed by you and accepted by our clients under which our clients would be entitled to elect during the stipulated three week period to acquire the property at the asking price with the agreed modifications and such further modifications as the developer might agree .”

No reference was made to the letter of the 8th May, 2006, where an offer for €450,000 was made provided the price included a ten meter berth.

This allegation was repeated in the pleadings and subsequent affidavits A plenary summons was issued on May 19th, 2006, and a lis pendens was registered against the property on 7th, June 2006.

14. Following issue of the proceedings, the defendants notified the plaintiffs’ solicitor that if the proceedings were not withdrawn an application would be brought to strike out those proceedings on the basis that they were unsustainable. Subsequently the existence of the contract was fully denied and the Statute of Frauds was pleaded. It was pleaded in reply that the furnishing of the plans to the estate agents on May 4th, 2006, was a sufficient act of part performance to satisfy the requirements of the Statute of Frauds.

 

15. On these facts, the defendant developer seeks to have the lis pendens vacated in order that the sale to the third party can be completed and he asks that the proceedings for specific performance be struck out as an abuse of process because the plaintiffs’ action has no reasonable chance of success.

 

16. It is well established that the court has the power to strike out proceedings in appropriate cases. The power is fully set in O.19, r. 28 of the Rules of the Superior Courts but is confined to pleadings which on their face disclose no reasonable cause of action. It is equally well established that the court has inherent jurisdiction to strike out proceedings. This jurisdiction is exercised where it is clear that the action pleaded has no reasonable prospect of success.

 

 

17. Both parties agreed that such power to strike out proceedings exists and that it should only be exercised in clear cases where the court is convinced that the plaintiff’s claim must fail. Both parties referred me to the decision of Costello J. in Barry v. Buckley [1981] IR 306 and to other agreed decisions on the issue of striking out actions. Each party laid different emphasis on the same judgments: Sun Fat Chan v. Osseous Ltd. [1992] 1 IR 425; Supermacs Ireland Ltd. v. Katesan(Naas)Ltd. [2000] 4 IR 273; Jodifern Ltd. v. Fitzgerald [2000] 3 IR 321.

 

18. The plaintiffs argued through their counsel that the action should be allowed to proceed as even an apparently weak or innovative case should be permitted to proceed to trial provided that the pleadings revealed some recognised remedy and as an action for specific performance was a real remedy, the proceedings could not be considered vexatious, frivolous or a breach of process and the defendant’s motion should therefore be refused.

 

The defendant urged on me that to allow the plaintiffs to proceed on their meritorious claim which would ultimately fail was in effect permitting them to freeze the sale of the lands for an unconscionable period. This is a feature of actions for specific performance well recognised in the many decisions opened to me and in particular the case of Sun Fat Chan v. Osseous Ltd. [1992] 1 IR 425 As the late McCarthy J. said in that case when reviewing the authorities in relation to the inherent power of the court to strike out proceedings at p. 429 :

 

“The procedure is peculiarly appropriate to actions for the enforcement of contracts, since it likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract”.

 

This and other cases warn that whereas a court has such a jurisdiction it is one to be used cautiously.

19. In the case of Barry v. Buckley [1981] IR 306 Costello J. said that

“A disappointed purchaser, by instituting proceedings for specific performance and by registering a lis pendens against the land which he alleges he has purchased, can effectively prevent a re-sale of the lands for a considerable time—perhaps extending over several years. Obviously substantial injustice could thereby result, both to the owner of the land and to a subsequent innocent purchaser. In suitable cases, the Courts should be able to provide a speedy means for determining the issues between the vendor and the first purchaser. It seems to me that such a means is to hand. A vendor who is sued by a purchaser for specific performance may bring a motion (which is heard on affidavit) to stay or to strike out the proceedings, and for an order directing the lis pendens to be vacated. In clear cases the Court can so order: its jurisdiction arises in two ways……

He then describes Order 19 procedures and goes on to state at p. 308 of the judgment:

 

“But, apart from order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case…. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Grierson [1908] 1 K.B. 761 at p. 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant. Having done so, the Court can also order that the lis pendens be vacated.”

 

 

In that case Costello J. made his decision on the basis of agreed facts whereas the facts are disputed in this case. In particular it is disputed that the developer had agreed with the plaintiffs to allow them an exclusive three week moratorium on negotiations with any other parties for the sale of No. 12 Acres Cove. However an examination of the agreed correspondence from the plaintiffs demonstrates no dispute on critical facts. The dispute arises from the meaning attributed by the plaintiffs to the negotiations and discussions between them and the developer’s agents.

 

20. The essential elements of a concluded contract are absent on the letters and emails generated by the plaintiffs and it is clear that they did not at any stage consider themselves bound to purchase the property at Drumshambo during the period when they were awaiting the developer’s response to their proposed variations to the internal layout of the house. The price was not agreed, the feasibility of the new layout was not agreed, the inclusion or otherwise of a berth was not agreed. The fact that the plaintiffs were also interested in another property was referred to twice while the negotiations were proceeding. If the plaintiffs believed themselves bound by a concluded contract to purchase the house in Drumshambo, they would not have referred to their option to purchase a house in Cavan.

 

21. In the circumstances I am satisfied that any court faced with the same correspondence would have no difficulty in finding that there was no concluded agreement at all.
22. It was agreed by both parties that there was urgency in the case as tax benefits under a rural development scheme to either purchaser would expire on the 31st December, 2006.

 

23. In view of the urgency in the matter and in the knowledge that the prospect of an early hearing was not possible, I notified the parties on the 20th December, 2006, that I had concluded that the plaintiffs’ proceedings have no reasonable chance of succeeding and made an order striking out the proceedings and vacating the lis pendens registered against Folio LM5481.

 

24. Thus the clear authority opened to me by both parties is Supermacs Ireland Ltd. v. Katesan(Naas)Ltd. [2000] 4 IR 273. That authority indicates that when a court is asked to lock out a plaintiff from arguing his case, it must be vigilant to ensure that both parties have an opportunity to advance or rebut the application. If there is an arguable case or where the pleadings can be remedied by or dismissed, or judgment to be entered accordingly, as may be just. However where as in this case, an examination of the facts contained in the affidavits reveals that the plaintiffs has no chance of success although the pleadings advance a known and recognised remedy, the court should grasp the nettle and strike down such unmeritorious proceedings. I therefore order that the proceedings be struck out and the lis pendens vacated.

 

Quinn Insurance Ltd & Ors -v- Tribune Newspapers PLC & Ors [2009] IEHC 229 Dunne J

 

In the course of the arguments before me, reference was made to O. 19, r. 3 of the Rules of the Superior Courts, which provides as follows:

 

 

“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel, they shall be signed by him; and if not so settled, they shall be signed by the solicitor, or by the party, if he sues or defends in person.”

 

The purpose of pleadings, generally, is probably best set out in a passage from the judgment in the case of Mahon v. Celbridge Spinning Company Ltd. [1967] I.R. 1, a decision of the Supreme Court in which Fitzgerald J. at p. 3 thereof stated:

 

“The whole purpose of a pleading, be it a statement of claim, defence or reply, is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. In other words, a party should know in advance, in broad outline, the case he will have to meet at the trial.”

 

There is no doubt whatsoever that a party is entitled to know the nature of the case being made against them. However, the role of particulars is not to require a party to furnish detailed particulars of specific aspects of the case. It is sufficient that the issues between the parties should be adequately defined and that the parties should know in broad outline what is going to be said at the trial of the action. In this regard, reference was made to the case of McGee v. O’Reilly [1996] 2 I.R. 229, in which Mahon v. Celbridge Spinning Company Ltd. [1967] I.R. 1, was followed. The case of ASI Sugar Ltd. v. Greencore Group plc., High Court (Finnegan P.) 11th February, 2003, is also of note, where it was stated by Finnegan P.:

 

“The function of pleadings is to define with clarity and precision the issues of fact and law between the parties. Where issues are so defined, each party will have given fair and proper notice to his opponent of the case he has to meet and each party will be enabled to prepare his own case for trial. Discovery can be directed to the issues and the delay and expense thereby incurred, minimised: this is particularly important in a case such as the present where discovery, even with the issues so defined, will be expensive. Further, this will enable the court to be aware of the issues before it and the trial judge will thereby be better enabled to control the hearing and confine the same within the limits of the pleadings. See McGee v. O’Reilly [1996] 2 I.R. 229.”

 

The issue in that case arose in the context of a competition case and was whether the plaintiff had adequately replied to a notice for further and better particulars.

Finally, I want to refer briefly to a passage from the case of McGee v. O’Reilly [1996] 2 I.R. 229. That was a case in which the plaintiff was claiming damages for medical negligence arising out of treatment afforded to him by the defendants. The statement of claim averred that the first named defendant had called to the plaintiff’s home, but had not examined him and had simply advised his parents to continue with existing medication. The defence averred that he had examined the plaintiff and advised that he be brought to hospital. The plaintiff sought detailed particulars of the examination and advice. The defendant refused to answer and a motion to compel replies was brought and refused. In the Supreme Court, the appeal was dismissed and, having followed the judgment in Mahon v. Celbridge Spinning Company Ltd. referred to above, Keane C.J. commented as follows at page 234 of the judgment:

 

 

“Thus, so far as this part of the case is concerned, the issues are defined between the parties which will be confined at the trial to the matters relevant to those issues. There is no ground on which it could be suggested that the trial of this action could conclude with the plaintiff having been taken at a disadvantage by the introduction of matters which could not fairly be ascertained from the defence. At the very least, the plaintiff knows in broad outline what is going to be said at the trial in relation to the visit on 22nd October, 1987.

In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of pleadings and particulars, while of critical importance in ensuring that the parties know the case that is being advanced against them, and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross-examination before the trial judge.”

 

 

I think the nature and purpose of particulars is clear from the authorities referred to above and there was no issue between the parties as to the principles of law in relation to the purpose for which particulars may be sought and the circumstances in which orders for particulars may be made.

It is the plaintiffs’ contention that the particulars sought herein are required so as to allow them to know which of the first named plaintiff’s employees are alleged to have acted corruptly, when, and in what circumstances. They say that in order to prepare fairly for the trial, they need to have details. It is not sufficient for them to rely on general allegations of corruption, but they are required to know what witnesses would be necessary to rebut the plea of justification. In that regard, it is their contention that the particulars in respect of the plea of justification are not sufficient to allow the plaintiff to deal with the matters raised in the plea of justification. They contend that not to provide the particulars sought herein would amount to a trial by ambush.

 

By way of response, the defendants contend that they have given a broad outline of the case being made in respect of the plea of justification, and that there is no obligation to go beyond that. It is contended that although the defendants had not been expressly asked to name the witnesses that would be called in support of the plea of justification, that was the effect of what had been asked in the notices for particulars. Mr. Kennedy, on behalf of the defendants, referred to the decision in the case of Cooney v. Browne [1985] I.R. 185, in which an issue arose as to particulars in relation to a rolled up plea. Henchy J., in the course of the judgment in that case, stated at p. 191 of his judgment:

 

 

“Thus, where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”

 

Mr. Kennedy accepted that that was the statement of principle applicable to the facts of this particular case, but that the requirement identified in that case was not as onerous as suggested on behalf of the plaintiffs herein.

There was some discussion in the course of the arguments before me as to the practice prevailing in this jurisdiction as contrasted with that of the United Kingdom in relation to the plea of justification. The most obvious difference between the jurisdictions is that under the Rules applicable in the jurisdiction of England and Wales, it is necessary that a defendant, in pleading justification, must furnish full and detailed particulars of the facts and matters upon which the plea is based. Mr. McDowell S.C. referred to a discussion on this divergence of practice in Cox on ‘Defamation Law’ at pp. 149-150, together with the analysis set out therein of the decision in the case of McDonagh v. Sunday Newspapers t/a The Sunday World [2005] 4 IR 528. Mr. Dowell argued that what is sought herein is not the names of witnesses. This is a case where serious allegations have been made against his clients, but he contends that what has been provided is a “rough” outline of the allegations against the plaintiffs and that it is not sufficient to provide a “rough” outline of the allegations. He contends that the information provided thus far falls far short of the level of particularity required. It is not fair for the plaintiffs to be put in the position of learning for the first time, in the course of the trial, the specific incidents of wrongdoing alleged against them.

 

I think it is clear from the outline of the arguments I have set out, that the issue I have to consider is whether the defendants have, in fact, provided a broad outline of the case being made in justification against the plaintiffs, or are the plaintiffs attempting, by means of the notices for particulars, to force the defendants to disclose the names of the witnesses who will be giving evidence on their behalf at the trial of the action.

 

In that context, it seems to me that it would be of assistance to consider some of the other authorities to which I was referred in the course of the arguments. The first of those to which, I think, it would be useful to refer, is the decision in the case of Doyle v. Independent Newspapers (Ireland) Ltd. [2001] 4 I.R. 594. In that case, a newspaper article had referred to the plaintiff, a former coach of the Irish rugby team, as having been “ostracised by the decision making core of the team”. It was held by the Supreme Court that the High Court judge was wrong, in principle, in requiring a party to furnish in advance to the other party the names of the witnesses he was going to call in relation a specific plea in his defence or in a statement of claim. The particulars sought in that case asked which senior players had lost confidence in the plaintiff and the manner in which the plaintiff was ostracised by the senior players. In the course of his judgment, Keane C.J. at p. 597, said as follows:

 

 

“In the present case, as matters stand, the plaintiff will be informed of the manner in which it is alleged that he was ostracised or shunned by senior players in the team because that has been so ordered by the High Court and not appealed from, and it must be assumed that the defendants will comply, as they must, with that order. Given that this is a relatively specific allegation that is made in the article, confined to what must, on any view, be a relatively small number of people, I would have thought that the pleading could not be described as so general or imprecise that the plaintiff in this case could not know what case he will have to meet in the trial. The defendants have undertaken the burden of establishing and, of course, the onus of proof will be on them, that the plaintiff was, in truth, shunned or ostracised by senior members of the Irish rugby squad, the decision making core of the Irish rugby squad during the course of his tenure of the position of rugby coach, indeed, confined to two particular seasons stretching, one supposes, over three years. That is what they will have to establish and not merely that, they will have to establish the specific incidents which are being relied upon in support of that statement in the article, because that is what they have been directed to furnish. When those particulars are furnished, as they must be, I would find it difficult to see how it could be said that the pleading was now so general or imprecise, that the plaintiff did not know what case he has to meet at the trial. What will be lacking, of course, undoubtedly, are the actual names of the players concerned.

The cases in which a court will actually order a defendant to say what witnesses he is going to produce at the trial are extremely rare and unusual, and even allowing for the somewhat unusual features of the law of defamation, it does not appear to me that this is a case where a party must be ordered to say precisely what witnesses he is going to call. It should be observed that these would not necessarily be players, members of the squad. If the defendants are, they say they are, going to prove the manner in which the coach was being ostracised by his players, that could be somebody at a restaurant, somebody at a hotel, somebody who happened to be in the same room as him who was not a player himself or herself, but who thought he saw some conduct which would amount to ostracism or shunning of the manager, clearly related to a poor performance by him as the coach.

 

That is what the evidence may be; obviously, the court does not know and the plaintiff does not know, at this stage, what specific witnesses are going to be produced, but then, that is the nature of adversarial litigation and there is certainly no general principle requiring one party to furnish in advance to the other the names of the witnesses he is going to call in relation to a specific plea in his defence, or in a statement of claim, as the case may be.”

 

 

Mr. McDowell, in the context of this case, has accepted that he is not entitled to a list of witnesses, but he says that the claims managers and solicitors involved in the alleged practices complained of should be identified.

Reference was also made to the decision of the Supreme Court in the case of Johnston v. Church of Scientology & Ors., (Unreported, 7th November, 2001) in which an issue arose as to an allegation that the defendants had pressurised the plaintiff into paying money to the defendants. Particulars were raised in relation to the form that pressure was alleged to have taken, and in the course of the judgment, Keane C.J. stated at p. 3 of the judgment as follows:

 

 

“How the plaintiff responds to that is, of course, a matter for her, but it seems to me reasonable that the plaintiff should be asked to indicate what form that pressure is alleged to have taken, because it is, clearly, at the heart of the plaintiff’s case. That, I emphasise, does not necessarily mean that the plaintiff is obliged to give particulars down to the day, the minute or whatever, that a particular phone call was made to her or a particular letter written to her. If you come to paragraph 9 of the statement of claim, you see the precise allegation of pressure being particularised where it says, in particular, representatives of the defendant would telephone the plaintiff regularly at work and at home and have accused her of being selfish and of thinking only of herself. There, the defendants, in my view, know the case that is being made against them in relation to that, and it does not really bring matters particularly further to say that this happened on 1st November, 1990, or on 3rd February, 1991. It is an allegation, of course, of conduct pursued over a particular period of time in the form of telephone calls to her work or to her home.

In the earlier part of the statement of claim where that same phrase is used, exerting great pressure or bringing pressure to bear upon the plaintiff, it is not particularised in that fashion and, in my view, the defendants are entitled to have particulars given as to what is the nature of the pressure in those circumstances alleged to have been brought against the plaintiff. In other respects, I am satisfied that the defendants, in the particulars they have sought, are really seeking matters which really only relate to evidence which will have to be given by the plaintiff at the trial, if she is to make out, in evidence, the pleas she has brought against the defendants.”

 

 

Mr. Dowell also relied on a decision in a case of Hickinbotham v. Leach [1842] 10 MW 362, at p. 511, where Parke B. stated:

 

“It is a perfectly well established rule in cases of libel or slander, that where the charge is general in its nature, the defendant, in a plea of justification, must state some specific instances of misconduct imputed to the plaintiff . . . in some of those cases, the statement in the plea was not so specific as it is here, but still this is not specific enough: the plea should have stated the description of the goods, or at least the names of the pawnbrokers with whom they were pledged. As it is, the statement is so general that the plaintiff cannot know with what he is intended to be charged. The defendant is bound to give him information of some specific acts with which he intends to charge him. This plea does not do that, and is therefore bad. With respect to the cases which have been referred to, of actions for not accounting for monies, the reason for the exception in those cases is, that there, the charge is for not accounting for an aggregate sum received; and it held to be sufficient, in order to avoid multiplicity of pleading, to assign a general breach, that the defendant received differs sums of money, which he did not pay over. None of those decisions have any application to cases of libel or slander. The plea is therefore bad, and the judgment must be for the plaintiff.”

 

In reliance on that authority, Mr. Dowell contends that the defendants must set out in summary form the basis of the plea in justification. It is not sufficient to make a generalised plea alleging corruption or unlawful or unethical conduct. There must be some degree of particularity in order to enable the plaintiffs to deal with the plea.

I was referred to the decision in Cooney v. Browne [1985] I.R. 185, by Mr. Kennedy, on behalf of the defendants. The case concerned a “rolled up plea”, but the purpose of particulars was considered in that case, and a passage from the judgment of Henchy J. at p. 191 of the judgment is of some assistance, where he stated:

 

 

“The matter, therefore, falls to be decided on principle. The determining considerations seem to be these. Where particulars are sought for the purpose of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason: see Order 19, rule 6(3). Where the particulars are sought for the purpose of the hearing, they should not be ordered unless they are necessary or desirable for the purpose of a fair hearing. ‘The object of particulars is to enable the parties asking for them to know what case he has to meet at the trial, and so to save unnecessary expense, and avoid allowing parties to be taken by surprise’: Spedding v. Fitzpatrick [1888] 38 Ch. Div. 410 at p. 413, thus, were the pleading in question so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular items of evidence) which he will have to deal with at the trial.”

 

Mr. Kennedy contended that the principle to be derived from that judgment is that the plaintiffs are entitled to such particulars as will inform them of the range of evidence which they will have to deal with at the trial. However, he contends that the effect of what he has been asked to do by reason of the form of particulars in this case is to supply the names of witnesses, something which is not permitted as it clear from the decision in the case of Doyle v. Independent Newspapers (Ireland) Ltd.

I was also referred to the decision in McDonagh v. Sunday Newspapers [2005] 4 IR 528. That decision was analysed at length in ‘Defamation Law’ by Neville Cox, referred to above. It was a libel action which concerned an article in which the plaintiff was described as criminal engaged in drug dealing and money lending. The defence pleaded justification. The application before the High Court concerned the issue of discovery. Although justification was pleaded, no particulars of justification had been set out in the defence or in the affidavit grounding the application for discovery. Mr. McDowell, on behalf of the plaintiffs, acknowledged that that decision made it clear that although O. 19, r. 3 of the Rules of the Superior Courts required a defendant to plead in summary form the material facts upon which a plea was based, the degree of particularisation was not as extensive as provided for in the law of England and Wales.

 

Macken J. noted in that case, at p. 541:

 

 

“On the question whether the defendant is obliged to particularise a plea of justification in the defence itself, this is not a requirement under the rules of procedure in this jurisdiction, if what is being considered are details or particulars of the type usually sought pursuant to a request for the same, and if one is speaking of a specific rule requiring particulars in the sense in which this word is used in the Rules of the Superior Courts, or in the case law. It is undoubtedly the case that it would be helpful if such appeal were, in fact, particularised in a defence, but, as a matter of law, I do not accept that this is required . . . however, that does not resolve the matter, either in relation to the pleadings or in relation to the question of the entitlement to discovery where the defence, as here, consists of an admission of the meanings attributable to the words spoken and a simple plea of justification . . . while it is undoubtedly true that particulars, such as are required in the United Kingdom, and such as may have been required under the old law in Ireland, are not now required in this jurisdiction to be included in a defence in a libel action, nevertheless, material facts to support the plea of justification are required . . .

I am satisfied that counsel would not put a plea of justification other than in accordance with their obligations in that regard. However, here, the plea of justification is in the most general terms, being pleaded simpliciter, and in respect of all of the meanings contended for by the plaintiff. In that regard, the law, well prior to the change in statutory or procedural practices in the United Kingdom, made it clear that such a plea of justification, simpliciter, is a mere repetition of a libel, and that in order to secure discovery, such a plea must, in any event, be particularised.”

 

 

Mr. Kennedy contrasts the facts of that case with the present case and points out that unlike the McDonagh case, the defendants herein have pleaded the material facts relied on in support of the plea of justification.

Macken J. went on to say in the course of her judgment at p. 550:

 

 

“In the earlier case law, what appears to have been required before discovery was granted was actual evidence of the justification plea. I am not satisfied that a defendant must disclose his hand, by presenting actual evidence in detail in order to be entitled to discovery and more recent jurisprudence would not support such a constraint on a defendant. It is sufficient in order to do justice between the parties and maintain the appropriate balances between a defendant’s entitlement to plead the truth in substance, and in the fact of the words used, and the plaintiff’s right to have his good name adequately vindicated, and knowledge of the case he has to meet when there is a plea of justification, if material facts have not been pleaded is available to the court in the affidavit grounding a discovery application.

Provided, therefore, that a defendant in such a case can “particularise” his plea of justification, which, in the present case, concerns several separate and unrelated types of crime and the comments thereon by means of such material facts or in the form of details or particulars averred to on affidavit, it is not necessary that actual evidence be disclosed to the court.”

 

 

Thus, by way of contrast with that case, Mr. Kennedy again asserts that the defendants have pleaded the material facts in paragraph 5 of the defence in relation to the plea of justification.

Reference was also made in the course of Mr. Kennedy’s submissions to the decision in the case of Cooper Flynn v. RTE [2000] 3 I.R. 344. The plaintiff, in that case, had sued RTE and a journalist for libel in respect of a series of broadcasts which allege that she, the plaintiff, had induced the third named defendant and others to participate in a scheme aimed at evading tax. The first and second named defendants had obtained non-party discovery relating to the scheme, but with the names of the participants in the scheme excised. They now sought the disclosure of the names of those involved. Inspection of the discovered documents had taken place, but the documents were made available for inspection in a redacted form with the names and addresses of the customers involved expunged. The application before the court sought disclosure of the documentation in an unredacted form. Although the application in that case arose in the context of the discovery process, some of the issues that arose in that case are of relevance to the matters at issue in the present case.

 

In the course of his judgment in that case Kelly J. made a number of observations which have some relevance to the issues arising in the case before me. It is important to bear in mind, having regard to the facts of that case, that the motion to obtain disclosure of the names and addresses of the customers concerned was brought against a non-party to the proceedings, namely, National Irish Bank, the plaintiff’s former employer, and this raised the important issue of a bank’s duty of confidentiality to its customers. The first point noted by Kelly J. in the course of his judgment at p. 347, was that although the defence was the subject of a notice for particulars, “no application has ever been made to the court with a view to requiring the first and second defendants to identify persons, other than the third defendant to whom such representations were allegedly made by the plaintiff”.

 

As I have already mentioned, the issue in that case arose in the context of inspection following the making of discovery. Order 31, rule 18(2) of the Rules of the Superior Courts, deals with applications for orders for inspection and provides:

 

 

“An order shall not be made under this rule if, and so far as the court shall be of opinion that it is not necessary, either for disposing fairly of the cause or matter or for saving costs.”

 

Much of the consideration in that case, therefore, turned on the question as to whether the inspection in the form sought, that is, with disclosure of the names and addresses, was “necessary for disposing fairly of the cause or matter”.

A number of comments made by Kelly J. in the course of his judgment in Cooper Flynn v. RTE, are of assistance. At p. 355, he commented:

 

 

“. . . I have come to the conclusion that an inspection of these customers’ files in an unredacted form which will disclose their identity to the representatives of the first and second defendants, will confer a litigious advantage upon them. It will make known to them the names of persons who, on the basis of the testimony put before me, may well be able to give evidence in their favour upon their plea of justification. To deny them this entitlement would not be conducive to the fair disposition of this action. It must be borne in mind that the plaintiff has full knowledge of both the identity and the commercial affairs of her clients, whereas the first and second defendants have only a very limited knowledge of the identity of such persons.”

 

He continued at p. 355:

 

“In the present case, there is a plea of justification in respect of which particulars, apparently satisfactory to the plaintiff (no application seeking better particulars having been brought before the court) have been provided. There is no suggestion that counsel, in signing the plea of justification, behaved other than in accordance with their obligations in this regard, but that does not mean that the first and second defendants are not entitled to seek support for their case from documents revealed in the course of discovery.”

 

In this regard, the views of Neil L.J. in McDonald’s Corporation v. Steel [1995] 3 All ER 615 at p. 621 are relevant:

 

‘It is true that a pleader must not put a plea of justification (or, indeed, a plea of fraud) on the record, likely, or without careful consideration of the evidence available or likely to become available. But, as counsel for the plaintiffs recognised in the course of the argument, there will be cases where, provided a plea of justification is properly particularised, a defendant will be entitled to seek support for his case from documents revealed in the course of discovery, or from answers to interrogatories’.

In my view, this is one such case.”

 

 

Finally, Kelly J. commented:

 

“The making of an order of the type of which I propose in this case, does not appear to me to be unfair or oppressive insofar as the plaintiff’s rights are concerned. There is, in my view, no substance to the contention that this disclosure will give rise to what her counsel described as an ‘ambush’. The present position is that she knows the identities of these customers and their dealings with her employer. The defendants have very little information pertaining to the identity of these clients. As the defendants have pleaded justification, they will have to prove it. The likelihood is that they will have to give evidence first in the trial, and all of the witnesses whom they call will be open to cross-examination by the plaintiff. None of the bank’s customers whose identities are divulged to the defendants and who are called in support of the plea of justification will come as any surprise to the plaintiff. In that regard, she is in a happier position than many plaintiffs who may have to contend with surprise testimony which may be called against them from witnesses of whom they have never heard. I therefore do not see that the disclosure of this information imperils the plaintiff’s entitlement to a fair trial. The converse would, however, be the case – a failure to allow inspection of the type sought would imperil the defendant’s entitlement. To put it another way, a refusal of this order would be to the litigious disadvantage of the first and second defendants, and to the considerable advantage of the plaintiff in a manner that would be unfair.”

 

There are some areas of distinction between the facts of the present case and the facts of Cooper Flynn v. RTE. As I have mentioned already, the first and second named defendants in that case had pleaded justification and were the parties looking for the names and addresses of potential witnesses with a view to interviewing them. In that case, the potential witnesses were the former clients of the plaintiff and would have been known to her. Kelly J. therefore rejected the contention that she would have faced trial by “ambush”. However, as Kelly J. noted, the refusal of the order would have put the first and second named defendants in that case at a considerable disadvantage.

Having referred at length to the authorities opened to me in the course of argument, it seems that certain principles can be derived from those authorities. It goes without saying that a party is entitled to know the case being made against them. If necessary, particulars may be ordered to clarify the issues or to prevent the party from being taken by surprise at the trial of the action. However, a party is only entitled to know the broad outline of the case that he/she will have to meet. A party is not entitled to know the evidence that will be given against them in advance of the hearing. Further, it is not usual to order the names and addresses of witnesses to be furnished in advance of the hearing of an action.

 

The absence of particulars in relation to a plea of justification may result in an order to furnish such particulars, although the level of specificity is not as great in this jurisdiction as is required in the jurisdiction of England and Wales. The Rules in England and Wales do require a party pleading justification to set out the particulars of justification in their defence. The Rules of the Superior Courts do not impose a similar requirement on the party pleading justification in this jurisdiction, although it has been noted in a number of decisions that a party pleading justification should not do so lightly or without consideration of the evidence available to support such a plea.

 

Finally, the names and addresses of potential witnesses may be ordered in circumstances where not to do so would be to the litigious disadvantage to the party pleading justification and to the considerable advantage of a plaintiff in a manner that would be unfair. The overriding principle in deciding whether to order replies to particulars which would have the effect of disclosing the names and addresses of potential witnesses, should be the need to ensure a fair trial for both parties to the litigation.

 

It is now necessary to consider those principles in the light of the facts of this case. The allegations complained of by the plaintiffs centre around the conduct of the insurance business of the first named plaintiff. The articles complained of, as noted previously, allege, inter alia, that the first named plaintiff offered solicitors sweeteners to settle claimants’ cases quickly; recruited serving Gardaí to investigate claims and claimants; the first named plaintiff adopted a strategy whereby serving members of the Gardaí were instructed to approach the plaintiffs’ solicitors to offer them a bonus to recommend a reduced settlement to their clients. It is in that context that the plaintiffs contend that they could be the subject of ambush at trial as they do not know the names of the claims managers who are alleged to have conducted the affairs of the first named plaintiff in the manner alleged; they do not know the names of the serving Gardaí alleged to have been employed by them, and they do not know the names of the claimants who are dealt with in the manner alleged. Thus, they seek the particulars at issue herein.

 

Given the plea of justification in this case, there is a strong possibility that the defendants will be required to give evidence first. I have no doubt that the memorandum previously referred to will be at the heart of the case being made by the defendants in justification. The plaintiffs have put in issue the genuineness of that document. The defendants rely on it as part of their plea of justification. They do so in circumstances where they maintain that the memorandum was written by the fourth named Plaintiff and purported to set out the strategy of the first named Plaintiff in reducing costs by settling claims as quickly as possible. If that document is found not to be genuine, it is difficult to see how the defendants’ plea of justification will be sustained, given the reliance placed on it by the defendants. The plaintiffs herein have been furnished with particulars of the plea of justification made herein as set out by the defendants in their defence. I am satisfied that they have been given a broad outline of the material facts relied on by the defendants. That is no more nor less than they are entitled to having regard to the principles outlined above. Reading through the articles complained of herein and the quotations from the memorandum, it is clear that the allegations in relation to the use of serving members of the Gardaí and the allegations in relation to unlawful and unethical practices are derived from the contents of the memorandum. I have little doubt that the defendants would find it extremely difficult to identify the names and addresses of the serving members of the Gardaí alleged to have been employed by the first named plaintiff. I am also of the view that it would be difficult for the defendants to identify particular claims managers of the first named plaintiff involved in such activities. Equally, I think it would be very difficult for the defendants to ascertain the means of claimants who may have been affected by such alleged practices. To do so, the defendants would have to have full access to the first named plaintiff’s files and records. On the other hand, it seems to me that it would be a relatively straightforward matter for the first named plaintiff to establish if it had, in fact, employed serving members of the Gardaí for the purposes outlined. It should also be relatively straightforward for the first named plaintiff to ascertain from its own enquiries within its own business whether or not it made use of information improperly obtained on its behalf. I find it very difficult to understand how the plaintiffs could be at a disadvantage compared to the defendants herein by reason of the absence of the names and addresses of the witnesses sought in the particulars herein.

 

I am certainly not of the view that without the particulars sought herein, the plaintiffs will be subject to trial by ambush. The plaintiffs and, in particular, the first named plaintiff, must be aware of the manner in which it conducted its business. It knows the identity of its claims managers and I have no doubt it is in a position to establish whether or not it employed serving members of the Gardaí to investigate claims and claimants. They have been furnished with a broad outline of the case being made against them. As far as I can see, the only parties who will be at a significant litigious disadvantage in this case would be the defendants if required to furnish the particulars sought herein as they could not reasonably be expected to provide the particulars without access to the first named plaintiff’s files and records. In the circumstances, I am not disposed to order the particulars sought herein in question 1 of the notice for particulars. I am satisfied that the absence of the particulars at issue herein could not give rise to an unfair trial. Finally, I should note that the particulars sought at paragraph 1A are no longer required.

 

The only other outstanding issue relates to question 3A. Question 3A relates to the plea of qualified privilege and the specific question is in the following terms:

 

 

“Please furnish full and detailed particulars of the ‘public interest’ referred to in the articles published by the defendant.

Answer: The public interest is already referred to and particularised in the particulars to paragraph 7 of the defence.”

 

 

As far as this response is concerned, I am satisfied that the defendants have identified with sufficient particularity the nature of the public interest they rely on. Accordingly, I do not think it is necessary to furnish any further reply to that question. In the circumstances, I am satisfied that I should not make an order for the reliefs sought herein.

 

 

(M.) v. R. (P.)

[2005] IEHC 228 Quirke J

APPLICATION TO SET ASIDE LEAVE OR STRIKE OUT PROCEEDINGS.

 

On behalf of the respondent Mr. Corrigan S.C. claims that, on the evidence, the applicant’s claim discloses no cause of action and is bound to fail.

 

In the alternative he argues that the order of this Court made on 12th December, 2003, granting the applicant leave to seek the reliefs sought herein should be set aside because, on the evidence, no “substantial ground …” within the meaning of s. 23(3)(1)(a) of the Act of 1995 exists which empowered the court to grant that leave.

 

He says that the order was made on foot of an ex parte application and can be set aside after consideration of all of the evidence which is relevant.

 

In support of his contention he relies upon the decision of the Court of Appeal in the case of Holmes v. Holmes [1989] FAM 47 (C.A.) and in particular the following extracts from the judgment of Purchas L.J:

 

“the phrase ‘substantial ground for the making of an application for such an order’ is clearly central to the issues in this application …[i]n particular when the court comes to consider such an application, it will have to take into account under s. 16(1) whether in all the circumstances of the case it will be appropriate for such an order to be made by a court in England and Wales. If it is not satisfied that it would be appropriate (and that is a positive onus), the court shall, as a matter of mandatory instruction, dismiss the application.

In my judgment that section reflects the fundamental rule of comity as between competent courts dealing with matters of this kind. Of course s. 16 is to be considered on the application itself. Mr. Bond very properly drew the distinction between the criteria which the court should take into account if it decides to entertain the application and those which the court has to consider on the application for leave to make the application. Nevertheless, if on the application for leave to apply it is clear that if leave were given the application must founder at the first hurdle of s. 16(1), then it would clearly be wrong for the court to grant leave to apply in the first instance. So it is not possible to isolate the considerations which arise under this group of sections”.

Later in his judgment Purchas L.J. observed that:

 

“. . . the purpose of this Act is generally apparent, namely, that it is there to remit hardships which have been experienced in the past in the presence of a failure in a foreign jurisdiction to afford appropriate financial relief. The obvious cases are those jurisdictions where there simply are not any provisions to grant financial relief to wives or children or, maybe husbands and children. In such cases, although the dissolution of the marriage has taken place in a foreign jurisdiction according to foreign laws, then the courts in this country are empowered by Parliament to step in and fill the gap. For my part I do not believe that the intention of Parliament in passing this Act was in any way to vest in the English courts any power of review or even correction of orders made in a foreign forum by a competent court in the whole matter had been examined in a way exactly equivalent to the which examination which would have taken place if the application had been made in the first instance in the courts here. That is not the object of this legislation at all”.

I would respectfully adopt the foregoing passages as applicable to the similar provisions of the Act of 1995 within this jurisdiction.

 

However, in the instant case it has not been established that the application for relief “must founder at the first hurdle ..”

 

The “first hurdle” within this jurisdiction is s. 26 of the Act of 1995 which provides that the court shall not “. . . make a relief order unless it is satisfied that in all of the circumstances of the particular case it is appropriate that such an order should be made by the court . . . “.

 

On the evidence, the court in Spain did not consider the question of the applicant’s upkeep, maintenance or welfare or that of N. No request was made for the court to do so. The court did not conduct any enquiry into or examination of the financial means and circumstances of the applicant or of the respondent at the time when the divorce was granted. Accordingly the respondent’s means and resources were not disclosed to the court or to the applicant or to her advisors.

 

Ms. Pilar de Paz stated clearly that, having regard to the nature of the proceedings before the court in Spain in October, 1996, Spanish law now precludes the applicant from making any further application for maintenance or other payments from the respondent.

 

Must this court, on those uncontested facts, inevitably conclude that it is not “appropriate” to make a relief order in favour of the applicant?

 

In these proceedings the applicant is not seeking to review or to rectify a decree of divorce which has been obtained under the civil law of Spain and is recognised as valid in this State. The applicant is seeking specific relief pursuant to legislative provisions made in this jurisdiction which are intended to provide relief where it is alleged that hardship, inequity and injustice has resulted from the grant of a Decree of Divorce in another jurisdiction which cannot be rectified by any relief available within the courts within that jurisdiction.

 

In this case it cannot be suggested that the court in Spain in 1996 examined the issues which are before this court “. . . in a way exactly equivalent to the examination which would have taken place if the application had been made in the first instance in the courts here . . .”.

 

There was no provision for divorce within this jurisdiction in 1996.

 

Accordingly an application for divorce could not have been made on that date within this jurisdiction.

 

The provisions of Part II of the Family Law (Divorce) Act, 1996 require inter alia that where an application is made for a decree of divorce within this jurisdiction the court must be satisfied that… “…such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family,…” (see s. 5(1)(c) of the Act).

 

However, on 14th October, 1996, that Act had not come into full force and effect.

 

It follows that no examination was conducted by the court in Spain in 1996 in a way which was equivalent to any similar examination required by Irish law 1996.

 

Section 23 (3) (a) of the Act of 1995 precludes an application for relief of the type which has been sought in the absence of leave granted ex parte. It provides that “the court shall not grant such leave unless it considers that there is a substantial ground for so doing…”.

 

Referring to the identical provisions of s. 13 of the Matrimonial and Family Proceedings Act, 1984 Russell L.J. declared (in Holmes v. Holmes [1989] Fam. 47 (C.A.)) that “[p]rima facie the order of the foreign court should prevail save in exceptional circumstances, and a good case for any interference with it or adjustment of it or any supplementation of it should be apparent before any leave is granted under s. 13 where the foreign court is properly seized of the dispute, as it was in this case. So far as is possible, duplicity of proceedings should be avoided in this as in all other fields in the interests of the parties and their children as well as in the interests of justice and the comity of nations.”

 

I am satisfied that there are “exceptional circumstances” present in this case.

 

Those circumstances include the failure of the respondent to disclose the means and resources available to him at the date of divorce, the applicant’s current reduced circumstances and means of livelihood and, in particular, the fact that, on the evidence, no remedy is now available to the applicant under the civil law of Spain where the decree of divorce was granted.

 

The “ultimate objective” of the legislation in England was declared by Bodey J. to be “… to provide for a very small residuum of cases where the English Court, bearing in mind all the warnings and cautions set out in the authorities, nevertheless feels that the outcome achieved in the foreign jurisdiction is simply not a just one as between the parties … [t]hat must ultimately turn on the circumstances of each individual case and raise issues essentially of fact and degree.”) See A .v. S. (Financial Relief after Overseas U.S. Divorce and Financial Proceedings) [2003] 1 F.L.R. 431 (at p. 451).

 

I am satisfied that it will be “appropriate” for the court to intervene in the manner contemplated by s. 26 of the Act of 1995 only in exceptional circumstances and when the court is satisfied by way of evidence, that the outcome achieved in foreign proceedings has been unfair or unjust in the circumstances and that no remedy is available to the applicant within the foreign jurisdiction.

 

The case made out on behalf of the applicant in the instant proceedings must be deemed sufficient to require this court to enquire whether the outcome of the divorce in Spain was a fair and just outcome in the circumstances.

 

Accordingly this court is satisfied that the applicant has proved that a

 

” substantial ground” exists for the grant to the applicant leave to seek the relief which has been sought in these proceedings. Accordingly the court declines to set aside the order dated 12th December, 2003, granting leave.

The court is satisfied also that the applicant’s claim as constituted discloses a reasonable cause of action and is not vexatious or frivolous within the meaning ascribed legally to that term.

 

The court, therefore, declines to strike out the claim on those grounds.

 

 

Riordan v. Hamilton

[2002] IESC 65

 

Judgment delivered the 9th day of October, 2002 by Murray, J.

1. This matter concerns proceedings issued by the Plaintiff against members and former members of the Supreme Court in which he seeks to impugn certain previous judgments and decisions of this court.
2. An application was successfully made in the High Court by the Chief State Solicitor on behalf of the Defendants, firstly for an order striking out the Plaintiff’s claim on the grounds that it constitutes an abuse of the process of the court, secondly an order striking out the claim on the grounds that it discloses no reasonable cause of action and thirdly for an order restraining the Plaintiff from issuing any further proceedings against the Defendants in the above type proceedings or any person holding the office of a judge of the Supreme Court without leave of the court. Finally, the High Court ordered that the pleadings be struck out as containing unnecessary and scandalous matter. The plaintiff appeals against the Order of the High Court.
3. The Plaintiff has issued these proceedings because he is dissatisfied with the final judgments given by this court in proceedings in which he was a party and to which, it hardly needs to be said, the defendants were not a party. His dissatisfaction with having his claims in previous proceedings rejected by the court is often expressed in the pleadings in language which is intemperate and tendentious. One of the earlier findings of the court of which he complains in his Statement of Claim was that he “appears to take the view that those who act in the manner inconsistent with his interpretation of the Constitution are not only mistaken but corrupt.” (381/97). Unfortunately, this still appears to be the case, one example of which is to be found in paragraph 18 of his Statement of Claim which states “Any judge who grants a divorce is a corrupt judge.”
4. However, the fundamental point here is that he seeks to challenge previous judgments of this court and obtain declarations that they are wrong. Of this the Plaintiff said at the hearing of the appeal “that is the whole basis of my case plus I am claiming damages.” He appears to have considered that by adding a claim for damages he was entitled to reopen those issues in these proceedings. Of course that is patently wrong. The judgments and decisions of which he complains are final and conclusive as regards the issues in those proceedings pursuant to Article 34.4.6 of the Constitution. Those issues cannot now give rise to a claim for damages and in any event a claim for damages as an additional form of relief cannot affect the res judicata nature of those decisions.
5. The learned High Court judge firstly had regard to Order 19, rule 28 which provides as follows: –

“The Court may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.”

6. This is not the first occasion on which this Plaintiff has sought, unsuccessfully, to litigate once again issues which have been the subject of a final order and judgment of this court. On reading of the long Statement of Claim delivered by the Plaintiff, which raises issues already and finally decided in proceedings between the Plaintiff and other parties, it is manifest that the Plaintiff’s action is both frivolous and vexatious and discloses no reasonable cause of action. Nothing which the Plaintiff has said during the course of the hearing of this appeal (which essentially reflected the argumentative nature of the pleadings) disclosed any ground for taking any other view.

 

7. In my view, the learned High Court judge was perfectly entitled to come to the conclusion which he did, namely that these proceedings constitute an abuse of the process of the court and he was entitled to dismiss them on that basis.
8. Exercising the inherent jurisdiction of the court, the learned High Court judge also struck out the Plaintiff’s claim on the grounds that it disclosed no reasonable cause of action and had no reasonable prospect of success. In respect of that conclusion he stated “The position here is that these matters have already been litigated. There is no new matter and this is an effort to re-litigate the same matters and to effectively ask this court to review the decision of the Supreme Court or to ask another judge to embark on a hearing at a later stage. In my opinion it is neither open nor would it be appropriate to do so in this case.”
9. He had before him the affidavit of Lawrence A. Farrell, Chief State Solicitor, filed on behalf of the Defendants herein, to which there was no replying affidavit and had regard to the Statement of Claim of the Plaintiff. The trial judge was perfectly entitled to make that finding on foot of that affidavit and the Statement of Claim. In those circumstances he was correct in striking out the Plaintiff’s claim on the grounds that it discloses no reasonable cause of action and has no reasonable prospect of success.
10. As regards the order restraining the Plaintiff from issuing certain kinds of proceedings without leave of the court, the learned High Court judge relied on the dictum of Costello J. in McSorley -v- O’Mahony (The High Court, unreported) 6th November, 1996, “It is an abuse of the process of the court to permit the court’s time to be taken up with litigation which can confer no benefit on a Plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a Defendant and which can confer no gain on a Plaintiff.” While every citizen has a right of access to the courts, it is in the public interest and in the interest of the proper use of public resources in the administration of justice that in exceptional circumstances this right be regulated by the courts. In my view, in the circumstances of this case, the learned High Court judge exercised his discretion properly in deciding to make such an order and I do not consider that any of the arguments made by the Plaintiff in this appeal disclose a basis for impugning the exercise of that discretion.
11. Finally as regards the order striking out the statement of claim, the learned High Court judge correctly stated that “The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used for an opportunity of placing unnecessary or scandalous matters on the record of the court or as an opportunity of disseminating such matters when they having nothing to do with any dispute between the parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed.” Like the learned High Court judge I do not think it is necessary to spend time reciting the lengthy Statement of Claim but he was correct to regard it as containing “contemptuous language and scandalous allegations” to advance a view which does not accord with ” fairness”, “constitutional right or with any modicum of decency.”
12. For the foregoing reasons, I consider that the Plaintiff’s appeal should be rejected.
13. One other matter, the Defendants are incorrectly described in the title to these proceedings in the plenary summons issued on the 13th day of September, 1999 and should, by order, be amended as in the title of this written judgment. There should also be an order dismissing the Plaintiff’s appeal.

 

 

 Ruby Property Company Ltd. v. Kilty

[1999] IEHC 50 McCracken J

THE LEGAL PRINCIPLES

37. It does seem to be clearly established that the Court has an inherent jurisdiction to dismiss a claim where under certain circumstances the Court comes to the view that the action cannot succeed. The general principle was set out by Costello J. in Barry v. Buckley (1981) I.R. 306 at page 308 where he said:-

 

 

“But apart from Order 19, the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34/37 and the Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the Plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Greerson at page 765.

This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the Plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to the Defendant”.

 

38. That case concerned an action for specific performance, and the proceedings were struck out on the basis, as set out at page 310:-

 

 

“The agreed facts established beyond any doubt that the Defendant’s Solicitor had made it abundantly clear in his first letter (dated the 5th January 1981), that there would be no binding contract between the parties until the written contract had been signed by both parties and the deposit paid. That remained the situation. No written contract was signed and no deposit paid. Therefore, there was no concluded contract in existence which can now be specifically enforced and this action must plainly fail”.

 

39. This case was considered by the Supreme Court in Sun Fat Chan v. Osseous Limited (1992) 1 I.R. 425. This again was a specific performance action, and the principles set out in Barry v. Buckley were not disputed before the Supreme Court. McCarthy J. went so far as to say, at page 428:-

 

 

“Since the matter has not been debated, I express no view upon the decision in Barry v. Buckley save to comment that applying the underlying logic, a defendant may be denied the right to defend an action in a plenary hearing if the facts are clear and it is shown that the defence is unsustainable”.

 

40. He went on to say that the High Court should be slow to entertain an application of this kind and grant the relief sought. He then added at the bottom of page 428:-

 

“I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour. The procedure is peculiarly appropriate to actions for the enforcement of contracts, since it is likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract”.

 

41. It should be noted that in both these cases the decision to strike out was made on agreed facts or on undisputed documents. In a similar application in Ennis v. Butterly (1997) 1 ILRM 28, it was actually conceded by Counsel for the Defendant that the Court must assume that every fact pleaded by the Plaintiff in the Statement of Claim is correct and can be proved at the trial and that every fact asserted by the Plaintiff on affidavit is likewise correct and can be proved. While I think that concession may have been somewhat rash, it is quite clear that the Court can only exercise the inherent jurisdiction to strike out proceedings where there is no possibility of success. If there is a dispute on facts on affidavit which is not resolved by admitted documents, then it will be virtually impossible for a defendant to have proceedings struck out as being unsustainable. The remedy sought by the Defendant is a remedy which has the effect of shutting out a citizen’s right of access to the Courts, which is a right which is very closely guarded and protected by the Courts themselves, and by the Constitution. Therefore, if the Defendants are to succeed in this motion, they must show that on facts which either are not in dispute, or are disputed on grounds which can only be considered as frivolous of vexatious, the Court should allow the action to proceed.

 

 

CONCLUSIONS – THE CLAIM AGAINST THE FIRST DEFENDANT

42. There is evidence in the form of a valuation given less than four months after the sale that at that time these premises were worth a sum more than 50% greater than that achieved in the sale to the Second Defendant. I am certainly not going to determine on a motion like this whether the effect of that evidence is that the actual sale that took place was or was not at an under value. It is arguable from the evidence before me that it was in fact an under value. There is a further matter which also concerns me in this regard. I have quoted at length in this judgment from correspondence between the Solicitors for the Plaintiffs and the Solicitor for the Receiver. The Receiver was at all times requested by the Plaintiffs to advertise these premises for sale. He received the same initial advice from his own estate agents, although this does appear to have altered subsequently. It must have been quite clear to the Receiver at all times that there was going to be a very considerable surplus arising on this sale, which of course would belong to the First Plaintiff, and the Receiver was in law the agent of the First Plaintiff. This is a somewhat unusual situation in that the First Plaintiff is not an insolvent company, and therefore monies received by it from the sale of these premises will be an asset of the company, and indeed if the company is wound up, of its shareholders. While I am not making any decision on the matter, as it was not argued before me, I certainly think it is open for consideration by the Court as to whether in those circumstances the Receiver has some form of obligation at least to consider representations made to him by the company as to how to conduct the sale, provided he is satisfied it will, in any event, realise enough to discharge the debenture holder in full.

 

43. In my view, therefore, it could not be said that this action must fail as against the Receiver insofar as it alleges a sale at an under value, but I do think that it must fail insofar as it seeks to challenge the Receiver’s right to sell the property.

 

 

CONCLUSION – THE CLAIM AGAINST THE SECOND DEFENDANT

44. As I have already indicated, any challenge to the validity of the appointment of the Receiver in these proceedings must fail, and the Receiver was entitled under the terms of the debenture to sell the premises. The Second Defendant was invited to make an offer by way of tender for the premises, and did so, and in due course a contract was entered into based on that offer, and the sale was ultimately completed. Even if this was a sale at an under value, or if the Receiver is in breach of Section 316A of the Companies Act, 1963, there is no suggestion that the Second Defendant in any way conspired with any other party to acquire the property at less than its full value. I have no doubt that the Second Defendant is a bona fide purchaser for value of this property, and its title cannot be challenged. The Statement of Claim also includes a claim for damages for trespass against the Second Defendant, but such a claim could only succeed if the Second Defendant has not got good title to the property, and as I have found that the Second Defendant does have title, there could be no claim for damages against it. Accordingly, I would propose to strike out all claims against the Second Defendant.

 

 

POSITION OF SECOND AND THIRD PLAINTIFFS

45. Mr. Hogan S.C., on behalf of the Plaintiffs, has acknowledged that the Second and Third Plaintiff were joined purely as a precaution in case the point was taken that the first Plaintiff, being in receivership, could not maintain these proceedings. That point has not in fact been taken, and in any event I am quite satisfied that a company in receivership at all times retains its legal entity, and, subject to the provisions of the debenture, retains the right to maintain proceedings such as these. Accordingly, the Second and Third Plaintiffs are not in fact necessary parties to these proceedings, but as they are not separately represented, I cannot see that their presence as Plaintiffs in any way prejudices the Defendants’ case.

 

 

CONSEQUENCE OF DELAY

46. I am aware that there was a motion brought by the Plaintiffs before the death of the Third Plaintiff to join ICC Bank Plc as a co-defendant. That motion never proceeded, but it has been intimated to me that a similar motion is still being contemplated. I would like to make it quite clear that I am refusing to strike out these proceedings on the grounds of delay expressly on the terms that no motion to add ICC Bank Plc as a defendant is brought, and the proceedings are concluded as rapidly as possible between the existing parties. It should be said that this does not in any way preclude the Plaintiffs from suing ICC Bank Plc in separate proceedings should they see fit to do so.

 

 

Salthill Properties Ltd & Anor -v- Royal Bank of Scotland & Ors

 

[2009] IEHC 207

 

Clarke J

3. Legal Principles

3.1 The Banks’ motion is based alternatively on Order 19 or on the inherent jurisdiction of the court. It is well established that a court may dismiss in limine proceedings which constitute an abuse of the process of the court. In the leading case on the matter, Barry v. Buckley, Costello J., at p. 308 of his decision, stated:-

 

“…the Court has an inherent jurisdiction to stay proceedings and, on applications made to exercise it, the Court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically its jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley L.J. in Goodson v. Grierson at p. 765. This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice”

 

3.2 The Banks submit that this is a “clear case” where the intervention of the court at this stage of the proceedings is necessary in order to avoid further injustice to them. The Banks further submit that these proceedings come under the principle of interest reipublicae ut sit finis litium, the public interest requires finality in law suits. In Bula v. Crowley (No.4) [2003] 2 IR 430, Denham J., applying this principle stated as follows, at p. 464, of her decision:-

 

“It is clear that the application was in essence a second application for a stay, which had already been refused by the High Court and from which there had been no appeal to the Supreme Court. It was an attempt to set up the same case again. I am satisfied that it was in fact inappropriate to apply to the court for this order. The dictum of Lord Halsbury L.C. in Reichel v. MacGrath [1889] 14 App. Cas. 665 was referred to by counsel. That dictum was cited with approval by Keane J. in Belton v. Carlow County Council [1997] 1 I.R. 172 at p. 182 and by this court in McCauley v. McDermott [1997] 2 I.L.R.M. 486 at p. 497. The dictum was:-

‘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 adopt and apply this law.”

 

It does not seem to me, however, that this line of authority puts the matter any further than the “dismiss as being bound to fail” jurisprudence. If a case sought to be made is bound to fail because it has, in substance if not in form, already been decided, then it will be dismissed. If it is truly a new case then it will, subject to the point addressed in the next paragraph, not be dismissed.

3.3 The rule in Henderson v. Henderson (1843) 3 Hare 100, also operates to preclude a party from raising a matter in litigation which might have been brought forward in earlier litigation but was not. The Banks argue that Salthill and Mr. Cunningham are seeking to re-litigate issues which have previously been determined against them, and / or which were omitted from previous litigation, and which, in one case, are the subject of an appeal to the Supreme Court. The Banks point to the fact that this Court has previously dismissed the secret profit claim at the end of the plaintiffs’ evidence in the main trial, due to the absence of a prima facie case. In the judgment of 6th March, 2009, dismissing the plaintiffs’ claim in the main trial, I stated, at p.160 of that decision, that:-

 

 

“There is, therefore, no evidence that First Active, when actually selling as mortgagee in possession, received any sum by way of uplift in the form of an arrangement fee for its own benefit and in such a manner that the relevant uplift would not have accrued to reduce the Cunningham Group’s liabilities. The factual basis for a claim under this heading does not, therefore, arise on the evidence and for those reason I was satisfied that First Active was entitled to a non-suit.”

 

3.4 Salthill and Mr. Cunningham argue that an application to strike out proceedings pursuant to Order 19, or on foot of the inherent jurisdiction of the court, looks solely to the pleadings and does not rely on affidavit evidence and that in such an application a court should proceed on the basis that any statement of fact contained in the pleading sought to be struck out is true and can be proved by the party concerned. It was further submitted that a court must show some restraint in strike out proceedings, and should only make such an order in clear cases where there is no dispute as to the relevant facts. Reliance was placed on the following statement of McCarthy J. in Sun Fat Chan v. Osseous [1992] 1 I.R. 425, at p. 428 to the effect that:-

 

“Experience has shown that the trial of an action will identify a variety of circumstance perhaps not entirely contemplated at earlier stages in the proceedings: often times it may appear that the facts are clear and established but the trial itself will disclose a different picture.”

 

3.5 Salthill and Mr. Cunningham further submitted that the jurisdiction should not be exercised when there is a dispute between the parties as to the facts. Reliance is placed in that regard on the statement of Keane J., refusing an application to strike out, in Lac Minerals v. Chevron Corporation (Unreported, High Court, Keane J., 6th August, 1993) at para.14.12:-

 

“It appears to me that, in these circumstances, it is not possible to say with the degree of confidence which the authorities suggest should be present in the mind of the Judge when deciding an application of this nature that, no matter what may emerge on discovery or at the trial of the action, the inconsistency will be resolved only in a manner which will be fatal to the plaintiff’s contentions.”

 

3.6 It should also be noted that, in Ruby Property Co Ltd v. Kilty (Unreported, High Court, McCracken J., 1st December, 1999), McCracken J. stated at p. 26 of his judgment that “it is quite clear that the court can only exercise the inherent jurisdiction to strike out proceedings where there is no possibility of success.”

3.7 Salthill and Mr. Cunningham further argue that the court cannot treat a dismiss application in the same manner as a non-suit application. As no defence has been served and no discovery has taken place, it was submitted that the court cannot consider whether or not the plaintiffs have made out a prima facie case.

 

3.8 It is clear, therefore, that while a jurisdiction to dismiss proceedings on the basis that they are bound to fail does exist, it is a jurisdiction to be sparingly exercised and only in clear cases. It does, of course, follow that among the bases that can be put forward for suggesting that proceedings are bound to fail, is a contention that the issue sought to be litigated has already been determined by a court of competent jurisdiction so that the case is bound to fail in that a plea of res judicata or issue estopple is bound to succeed. To the extent, therefore, that the Banks seek to place reliance on previous rulings in the Moorview proceedings, it is necessary to assess whether those rulings involve findings which are fatal to the current proceedings. Likewise to the extent that the Banks place reliance on the rule in Henderson v. Henderson, it follows that it is necessary for the court to consider whether the relevant plea could and should have been maintained in the previous proceedings, and in so doing to have due regard to the comments of Hardiman J. in A. v. the Medical Council [2003] IESC 70, to the effect that the rule in Henderson v. Henderson is not an inflexible rule, but must always admit of a general consideration of whether it would be appropriate, in all the circumstances, to allow the party concerned to seek to litigate a point which might have previously been litigated in other proceedings.

 

3.9 So far as the general question of whether proceedings are, on their merits, bound to fail it seems to me that it is necessary to address the question which arose for debate between the parties as to the approach which the court should take to the evidence as presented on an application to dismiss such as that with which I am involved. It has often been noted that an application to dismiss as being bound to fail may be of particular relevance to cases involving the existence or construction of documents. For example, in claims based on written agreements it may be possible for a party to persuade the court that no reasonable construction of the document concerned could give rise to a claim on the part of the plaintiff, even if all of the facts alleged by the plaintiff were established. Likewise, a defendant in a specific performance action may be able to persuade the court that the only document put forward as being a note or memorandum to satisfy the Statute of Frauds, could not possibly meet the established criteria for such a document. More difficult issues are likely to arise in an application to dismiss when there is at least some potential for material factual dispute between the parties capable of resolution only on oral evidence. At this end of the spectrum, it is difficult to envisage circumstances where an application to dismiss as bound to fail could succeed. In between are a range of cases which may be supported to a greater or lesser extent by documentation.

 

3.10 However, it is important to emphasise the different role which documents may play in proceedings. In cases, such as the examples which I have given earlier, involving contracts and the like, the document itself may govern the legal relations between the parties so that the court can consider the terms of the document on its face and may be able to come to a clear view as to the legal consequences flowing from the parties having governed their relations by the document concerned.

 

3.11 However, there are other cases where documents are not vital in themselves save that they may cast light on the underlying facts which may be at the heart of the proceedings concerned. Correspondence, minutes of meetings, memoranda and the like, do not, of themselves, create legal relations between the parties. Rather they purport to reflect facts such as what was said at meetings, what was communicated from one party to another or the like. Parties may explain or seek to clarify what might otherwise appear to be the natural meaning of such documents. At the end of the day, it will be what view the court takes as to what actually happened that will determine the facts on the basis of which the court will come to its judgment. Contemporary documentation is often a very valuable guide to such facts, but such documentation is not necessarily determinative. It is important, in that context, not to confuse cases which are dependent on documents themselves with cases where documents may be a guide, albeit often a most important guide, to the underlying facts which need to be determined in order to resolve the issues between the parties.

 

3.12 It is true that, in an application to dismiss proceedings as disclosing no cause of action under the provisions of Order 19, the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim. However, I would not go so far as to agree with counsel for Salthill and Mr. Cunningham, to the effect that the court cannot engage in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the court. A simple example will suffice. A plaintiff may assert that it entered into a contract with the defendant which contained certain express terms. On examining the document the terms may not be found, or may not be found in the form pleaded. On an application to dismiss as being bound to fail, there is nothing to prevent the defendant producing the contractual documents governing the relations between the parties and attempting to persuade the court that the plaintiff has no chance of establishing that the document concerned could have the meaning contended for because of the absence of the relevant clauses. The whole point of the difference between applications under the inherent jurisdiction of the court, on the one hand, and applications to dismiss on the factual basis of a failure to disclose a cause of action on the other hand is that the court can, in the former, look to some extent at the factual basis of the plaintiff’s claim.

 

3.13 However, it seems to me that counsel for Salthill and Mr. Cunningham is correct when he says that the court need not and should not require a plaintiff to be in a position to show a prima facie case at the stage of an application to dismiss, in order that that application should fail. There have been many cases where the crucial evidence which allowed a plaintiff to succeed only emerged in the course of the proceedings. At the level of principle, this is likely to be particularly so in cases alleging fraud or other similar wrongdoing which is likely to be clandestine, if present, and where a plaintiff may only be able to come across admissible evidence sufficient to prove his case by virtue of the use of procedural devices such as discovery and interrogatories. That is not to say that it is legitimate for a party to instigate such proceedings when the party concerned has no basis for so doing. However there is, in my view, a significant difference between circumstances where a plaintiff has a legitimate basis for considering that it may have a claim at the time of commencing proceedings, on the one hand, and a situation where that party has, at that time, available to it, admissible evidence which it can put before the court to establish a prima facie claim, on the other hand.

 

3.14 It is clear from all of the authorities that the onus lies on the defendant concerned to establish that the plaintiff’s claim is bound to fail. It seems to me to follow that the defendant must demonstrate that any factual assertion on the part of the plaintiff could not be established. That is a different thing from a defendant saying that the plaintiff has not put forward, at that time, a prima facie case to the contrary effect.

 

3.15 To the extent, therefore, that the Banks’ application is not based on matters having been allegedly previously determined, or being caught by the rule in Henderson v. Henderson, it seems to me that I should assess the factual allegations put forward on behalf of Salthill and Mr. Cunningham, not on the basis of whether those parties have shown that they have evidence which, if accepted, would lead, arguably, to success in the proceedings but rather whether the Banks have established that it is impossible that any such evidence will be produced at trial.

 

3.16 In the light of those general principles, I propose to consider each of the separate areas of the case in turn.

 

 

Shannon Preservation and Development Co. Ltd. v. E.S.B.

[2000] IEHC 136

 

O’Sullivan J

14. As I have noted, that approach found favour with the majority of the Supreme Court in the Lancefort appeal, albeit its application in that case by the High Court Judges was not approved.

 

15. In stating his conclusions on the locus standi issue, Keane J (as he then was) in Lancefort not only accepted as a general proposition that companies limited by guarantee owning no property affected by a challenge to planning permission may be entitled to locus standi in proceedings of this nature but further accepted that there may be circumstances in which it would be wrong in principle to deny standing to such a body even though it was not in existence at the time of the impugned decision.

 

16. In considering the issue he was prepared to assume in favour of the persons concerned in the formation of the plaintiff company in Lancefort that they were genuinely concerned to ensure that good planning decisions were made in Dublin and elsewhere and that they incorporated the appellant with that objective in mind. He considered that the case being made was merely formal or technical and without substance in actual environmental terms and cited with approval the English decision in R. -v- Inspector of Pollution Ex. P. Greenpeace Limited (No. 2), (1994:4:AER:329) where a challenge to the locus standi of Greenpeace was rejected by a Court which pointed out that they had a genuine interest in the matter raised and had 2,500 supporters in the area of the plant who might not otherwise have an effective means of bringing their concerns before the Court.

 

17. Whilst acknowledging the concern of potential defendants that plaintiff companies can be formed “ … simply to afford residents’ associations and other objectors immunity against the costs of legal challenges” , Keane J (as he then was) went on to say:-

 

 

“Our law, however, recognises the right of persons associating together for non-profit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi . While shielding the members against an Order for costs in the event of the company becoming involved in litigation may well be a consequence of limited liability, it is not necessarily the only reason why citizens concerned with issues as to the environment may decide to incorporate themselves as a company. It must also be remembered, that, in the case of such a company, the High Court may order security for costs to be provided…”

 

18. The foregoing citations set out, I believe, the principles which I must apply in considering the present application.

 

19. The evidence on Affidavit for the Plaintiff is that the fishing clubs and organisations represented by the Plaintiff company in the manner I have already described “ … comprise a total of well over 2,000 anglers who I say on a daily/weekly basis carry out not just fishing activities on the Shannon but are involved in all aspects of seeking to preserve, promote and develop the fishing activities on the Shannon for a very considerable period of time”. Two of the six subscribers to the Memorandum are stated to have express authorisation from the Defendant to carry out eel fishing activities on the River Shannon and other members of the Plaintiff company are stated to have salmon fishing licences from the Defendant. It is stated that the company was formed to avoid the necessity of bringing proceedings with 2,000 anglers making the application in their own name and it is explicitly averred that the with the backing of 2,000 individuals that the Plaintiff company fully intends to discharge any Costs Order that may be made against (it).

 

20. It is clear in my view that the case made in these proceedings differs from that under consideration in Lancefort in that a very real and substantial environmental issue is directly raised by the Plaintiff in the present proceedings whereas Keane J (as he then was) observed in Lancefort that:-

 

 

“… It has not been shown that this (alleged illegality) had the slightest adverse effect on the attainment of the objectives of the directive and the regulations which implemented it in this State.”

 

21. Insofar, therefore, as it is appropriate to examine the merits of the case when considering the locus standi of the plaintiffs to make it, the present case can be clearly distinguished from that of the applicants in Lancefort.

 

22. It may be said that the Plaintiff company itself cannot have a lengthy “ history” of environmental involvement since it was only formed on the 6th October, 1999 some seven weeks prior to the initiation of these proceedings. It is clear, however, that the individuals behind the company have a longer involvement and are supported by in excess of 2,000 individuals who clearly have a long history of environmental involvement and interest in the issues raised in this case which in turn directly concern matters of substantial environmental public as well as private interest.

 

23. I must conclude, therefore, that the Plaintiff does have locus standi and accordingly reject the Defendant’s primary submission on this motion.

 

24. With regard to the Defendant’s alternative claim for an Order directing the Plaintiff to provide security for costs, I note that the Plaintiff is a company limited by guarantee and I assume that these are not open or unlimited guarantees since if that were the case I would inevitably have been so informed in the able submission of their Counsel.

 

25. Not only, therefore, would I accede to this alternative application of the Defendant in the exercise of my discretion, but I should make it clear that in reaching my conclusion on locus standi I have borne in mind the fact that an application is being made by the Defendant in the alternative for just such an Order.

 

26. Accordingly, I decline to dismiss the Plaintiff’s claim as sought by the Defendant but direct the Plaintiff to furnish security for costs and put a stay on all further proceedings until such security has been so furnished.

 

 

 

Sugg -v- Legal Aid Board [2009] IEHC 348  Feeney J

 

Order 19, rule 28 of the Rules of the Superior Courts provides that a court may order a pleading to be struck out on the grounds that it discloses no reasonable cause of action or answer and that, in any case where the action or defence is shown by the pleadings to be frivolous or vexatious, the court may order that an action be stayed or dismissed or that judgment may be entered accordingly.

 

In the regularly quoted case of Barry v. Buckley [1981] I.R. 306 Costello J. stated at p. 308 as follows:

 

“The court can only make an order under this Rule when a pleading discloses no reasonable cause of action on its face.”

That is the position in this case. No reading of the plaintiff’s statement of claim identifies any matter which discloses a reasonable cause of action. Even if the court were to consider the application on the wider basis of the inherent jurisdiction of the court, the decision would be the same. The inherent jurisdiction of the court, that is, the power to dismiss pursuant to Rule 28, has been interpreted restrictively. The courts also possess an inherent jurisdiction or power to strike out claims on similar grounds. In exercising this jurisdiction, the court is not limited to considering the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case. This inherent jurisdiction may be used to dismiss an action on the basis that on admitted facts, it cannot succeed.

O’Higgins C.J. identified in the case of McCabe v. Harding [1984] I.L.R.M. 105 at page 108/109, that where vexation is established by undisputed facts which explain the nature of the claim made or pleading that the court has an inherent jurisdiction to strike out the proceedings. The rationale behind that jurisdiction had been was identified by Costello J. in the following terms in Barry v. Buckley at p. 308 where he stated:

 

“Basically, its jurisdiction exists to ensure that an abuse of process of the courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail.”

In arriving at that view, Costello J. relied on the statement of law by Buckley Lord J. in the case of Goodson v. Grierson [1908] 1 K.B. 761 at 765.

The court is aware that this inherent jurisdiction should be exercised sparingly and only in clear cases. As was stated by McCarthy J. in Sun Fat Chan v. Osseous Ltd [1992] I.R. 425 at 428:

 

“Generally, the High Court should be slow to entertain an application of this kind.”

However, as in the case herein where there is no evidence to support the claim and it is clear that the claim must fail, then the court should proceed to strike out. As stated by Macken J. in the case of Supermacs Ireland Ltd v. Katesan (Naas) Limited (an Unreported decision of 15th March, 1999) “… while the facility to strike out a case in limine on grounds that it cannot possibly succeed is one from which the court should shirk.”

Mr. Sugg has embarked on yet another action which is bound to fail. He has identified the desire to have questions answered concerning his wife’s treatment but a court does not and cannot consider the issue of the desire to have questions answered but must look to whether or not a legal claim has been made which identifies a cause of action. Absent a reasonable cause of action, the court has no power to address or consider any matters.

 

This Court is satisfied that the defendant has established an entitlement both under O. 19, r. 28 and under its inherent jurisdiction to have this claim struck out and the court will so order.

 

 

Supermac’s Ireland Ltd. v. Katesan (Naas) Ltd.

[2000] IESC 17

 

geoghegan J

 

3. On the hearing of the appeal there was no dispute between the parties as to the legal principles to be applied to the inherent jurisdiction to strike out proceedings. A large number of cases, starting with Barry v. Buckley [1981] IR 306 were presented to the court in a Book of Cases but they were not really opened to any extent. However I think it important to refer briefly to the latest of those cases Jodifern Limited v. Fitzgerald and in particular to the judgment of the Supreme Court delivered by Barron J. on the 21st December, 1999. In the fourth page of his judgment Barron J. says the following:-

“Every case depends upon its own facts. For this reason, the nature of the evidence which should be considered upon the hearing of an application to strike out a claim is not really capable of definition.

One thing is clear, disputed oral evidence of fact cannot be relied upon by a defendant to succeed in such an application. Again, while documentary evidence may well be sufficient for a defendant’s purpose, it may well not be if the proper construction of the documentary evidence is disputed. If the plaintiff’s claim is based upon allegations of fact which will have to be established at an oral hearing, it is hard to see how such a claim can be treated as being an abuse of the process of the court. It can only be contested by oral evidence to show that the facts cannot possibly be true. This however would involve trial of that particular factual issue.

Where the plaintiff’s claim is based upon a document as in the present case then clearly the document should be before the court upon an application of this nature. If that document clearly does not establish the case being made by the plaintiff then a defendant may well succeed. On the other hand, if it does, it is hard to see how a defendant can dispute this prima facie construction of the document without calling evidence and having a trial of that question.”

4. Although the issue in that case seems to have been abuse of the process of the court the same principles would equally apply to an issue as to whether there was or was not a reasonable cause of action. It will be important to bear these dicta of Barron J. in mind when applying the legal principles to this case.
5. At the hearing of the appeal before this court, counsel for the Appellant Mr. Cush argued that the Plaintiff could not succeed in the action in that in relation to the sixth property, the subject of the action, there was allegedly never a concluded agreement or alternatively that if there was, there was no note or memorandum thereof sufficient to satisfy the Statue of Frauds. He further argued that the Plaintiff could not succeed on the basis of part performance both because there was no concluded agreement in the first instance and because such agreement as there was in relation to the particular property in question had not been partly performed.

 

 

Hardiman J

 

The Present Motion

By their present Motion the Defendants assert that the proceedings are unsustainable. It is said they amount to an abuse of the process of the Court and should be struck out in the exercise of the Court’s inherent jurisdiction.

There was no dispute between the parties as to the legal principles to be applied in considering this Motion. These have been extensively set out in the judgment of the learned

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trial judge and I need only say that I agree with what she says. The position is aptly summarised in Lac Minerals v Chevron Corporation (1995) ILRM 161 as follows:-

“The Judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the Plaintiffs contention.

This clearly, is a very difficult hurdle for the Defendants to clear.

On behalf of the Defendants, Mr Cush S.C. put his case with incisive brevity. He submitted that there was no concluded oral agreement between the parties and that, even if there was a concluded oral agreement, it is unenforceable because there is no sufficient note or memorandum to satisfy the Statute of Frauds. He says that the parties, in the persons of Mr Sweeney and Mr McDonagh had got together with a professional mediator to work out an agreement in principle but no more than that. The entire history of the transaction, he says, has to be read against the background of the correspondence between the solicitors all of which is marked “subject to contract”.

More specifically, Mr Cush submits that there was no agreement in relation to deposit or to completion dates. He agrees that there may have been a concluded agreement in relation to price but said that the other two matters are essential to a full agreement. He also points out that there is no provision in the alleged agreement to resolve the position about the sitting tenant in the Naas premises and in particular no agreement as to what would happen if vacant possession was not obtained. In fact, vacant possession was obtained in early 1998.

Mr Cush stated that the core of his case was the failure, as he alleged, to reach any agreement on the question of deposit. He relied heavily on the judgment of this Court in Boyle v Lee (1992) 1 IR 555.

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For the Defendants, Mr McCann asserted that there was both a concluded agreement and a sufficient note or memorandum. He further submitted that, in any event, there was sufficient evidence of part performance of the contract: as the Plaintiffs see it, the contract has been five sixths performed.

Deposit

It is convenient to deal first with the question of deposit because this is the core and height of the Defendants case.

In Boyle v Lee, Finlay C.J. held that the parties had agreed that there would be a deposit but left it to their respective solicitors to agree the amount and form of it. In those circumstances, the learned Chief Justice said:-

“The amount of a deposit to be made, even if a purchaser is willing to make a deposit of the appropriate amount, or to the usual amount then experienced in transactions in Dublin, is too important apart of a contract for the sale of land in the large sum of £9O, 000 to be omitted from a concluded and complete oral agreement unless the parties in such an agreement had agreed that no deposit would be paid.” (p.571)

It seems clear that this passage, if and insofar as it suggests that one can never have a concluded agreement for the sale of land without agreement as to the payment of a deposit, represented a considerable development of what the position had previously been. Both Barrett v Costelloe (High Court 13th July 1973 unreported) and Black v Kavanagh (1973)108 ILTR 91 had stated that it is not essential for a concluded agreement that there should be a stipulation in relation to a deposit. In the latter case Gannon J. having held that neither party attached any importance to the matter of the payment of a deposit or its amount, said:

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“The question of whether or not a deposit should be paid was not considered by the parties to be material matter, and in my opinion is not an essential term of such a contract.”

The Plaintiffs’ answer to the submission based on Boyle v Lee is first to distinguish that case on its facts and to contend that the evidence here is open to the interpretation that there was to be no deposit. This, Mr McCann said, could be decided as a matter of interpretation of the words and conduct of the parties: there is no necessity for an express agreement that there would be no deposit. Secondly, the Defendant contends that it is not obvious (and he need go no further for the purpose of this Motion) that the passage quoted above from Finlay C.J. represented the view of the majority. If it did, it would represent a substantial change in the pre-existing law: there is ample scope for argument, it was contended, that the judgment of O’Flaherty J. which is pivotal on the point having regard to the views expressed by McCarthy and Egan J.J., did not go as far as the Chief Justice on the question of deposit.

There is no doubt that an agreement in relation to deposit is usual in concluded agreements for the sale of land. But the cases prior to Boyle v Lee demonstrate that it is not invariable. The evidence on affidavit falls well short of certainty in relation to what if anything was agreed on this point and it must not be forgotten that the agreement was between Franchisor and Franchisee and involved the sale of assets other than real property in addition to the premises themselves. In such an agreement, I believe there is at least scope for contention that a deposit may not have been considered essential. It seems to me that the factual position will be a good deal clearer after discovery and, more importantly, oral

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evidence, and I could not say that I am confident that, no matter what transpired at the trial, the Defendant would necessarily win.

Furthermore, since there is scope for the view that the parties agreed nothing whatever about a deposit, it seems to me at least arguable that Boyle v. Lee is distinguishable in the present circumstances. The circumstances of that case were that there had been an express agreement that there would be a deposit. It is not manifestly clear that the judgment of the Chief Justice in that case was intended to apply to other circumstances. It is also in my view arguable that the judgment of Finlay C.J. did not represent the view of a majority. On a motion such as this it is neither necessary nor desirable to go further than saying that I am not convinced that the Defendant must win no matter what happens at the trial. It is noteworthy that Boyle v Lee was itself a decision of this Court after a full hearing in the High Court and Finlay C.J. was careful, at page 563 of the Report, to set out precisely what the oral evidence on this topic had been. In my view it would be necessary to hear the evidence in this case before a final decision can be made as to what if anything was agreed between the parties on this topic, what may be implied from what they did and from other facts and to hear legal argument based on that evidence.

Completion Date

Mr Cush also contends that the absence of agreement as to completion date is a fatal defect in the proposition that there was a concluded agreement. In relation to the Naas premises there was a statement on affidavit that completion was to be after vacant possession had been obtained; there was no reference to a completion date at all in relation to the other five properties. He further submitted that there was no evidence on the basis on which a completion date could be implied.

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In Boyle v Lee, Egan J. at page 593 of his judgment stated that:

“It has long been established that where no time for performance is agreed the law implies an undertaking by each party to perform his part of the contract within a time which is reasonable having regard to the circumstances of the case: Simpson v Hughes(1896) 66 LJ Ch. 143.”

This is a long standing and, to my knowledge, unchallenged statement of the law. Accordingly, it cannot be said with certainty that, if the other essentials of a concluded agreement are present, the Plaintiffs case is bound to fail by reason of the non-specification of a completion date.

Vacant Possession

Mr Cush contended that, in order to construe the November agreements as constituting a completed agreement for the sale of land, one has to construe the evidence as committing the Defendant to getting vacant possession. This is no where stated. He further points out that the evidence is silent on the question of what was to happen if vacant possession was not obtained.

In paragraph 5 of his affidavit the mediator, Mr Chambers, says that the second named Defendant pointed out during discussions that the Naas property had a sitting tenant and that there was a court case pending in relation to that person’s entitlements. He goes on:

“As a result of this difficulty and because of the fact that vacant possession was not available, a sum of money was agreed to accommodate the eventuality of allowing this property out of a deal. In other words figures were agreed for either five properties or alternatively six properties.”

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This is at variance with the Defendants contention that no provision was made about the eventuality that vacant possession was not obtained. It is unnecessary to go further than holding that there is clearly an evidential issue on this matter. There is also a legal issue which may arise as to the significance of the fact that vacant possession was, in fact, subsequently obtained. Furthermore, there is a distinction between the elements necessary to constitute a completed agreement on the one hand and the consequences of failure to honour such agreement in relation to vacant possession on the other. It is at least arguable that the parties failure to reach any agreement (if that is found to have occurred) on the question of vacant possession would merely have exposed the Defendant to a claim for damages, if vacant possession had not been obtained.

Subject to Contract

Mr Cush submitted that all discussions between Mr McDonagh, Mr Sweeney and Mr Chambers should be interpreted “against the background” of the correspondence between solicitors all of which was “subject to contract”. This, he says, colours all dealings between the second named Plaintiff and the second named Defendant.

In my view it is plainly arguable that the use of this rubric by the solicitors does not preclude the existence of a “done deal” between the parties themselves, which the Plaintiffs contend for. Insofar as it is contended that the Plaintiff is estopped by the use of the rubric from asserting a completed and enforceable agreement, this seems to me to be plainly a matter for evidence at the trial. I did not understand this point to be vigorously pressed on the hearing of the appeal.

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No Note or Memorandum

The learned trial judge held that she had to approach this question on the assumption that the Plaintiffs will prove that Mr Chambers was acting as the Defendants agent. I agree with that finding.

The Defendants submissions as to deposit, completion and vacant possession have already been summarised. The contention that the purported memorandum fails to record one or more of these matters must await a finding, after evidence has been heard, as to what was in fact agreed on these topics.

Mr Cush says, however, that of the two documents produced by Mr Chambers, only the first in time is signed: he says that if two documents are to be read together, and only one is signed, it is imperative that the signed document must be the last in point of time “for it would be absurd to hold that a person who signed a document could be regarded as having signed another document which was not in existence when he signed the first” (McQuaid v Lynam (1965) IR 564 at 570)).

The same case, however, is also authority for the proposition that where an oral agreement is intended to be the contract “evidence may be given of an agreed variation even if there is a memorandum or note of the contract but not of the variation “. In my view it is at least arguable that this is the case here and certainly oral evidence will be necessary in order further to explore the contention. The nub of the Plaintiffs case is that there was a “done deal “, as it is expressed, orally arrived at. There is a considerable similarity between the two documents and the variations apparently came about as a result of discussions or correspondence between the parties accountants as to the best way to effect the transaction. In my view it is not possible to be confident that discovery will not reveal further or other

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documents on the topic of the variation and this too is a matter suggesting that the case go to trial.

Part Performance

On the topic of part performance, the issue as it can be discerned at present comes down to whether, as the Plaintiff, contends there was an overall contract to sell the six premises, the goodwill and other items for £4,000,000. The alternative, for which the Defendant contends is that there were six individual transactions so that the completion of five of them has nothing to say to the sixth.

It seems to me obvious that it is at least possible that the evidence as a whole will disclose an overall transaction with the individual considerations, the subdivision thereof into various headings and the individual modes of completion tailored by the parties professional advisers so as to be mutually beneficial from a tax point of view and otherwise. Indeed, this proposition seems compatible with the background set out in Mr McDonagh’ s affidavit of a decision to end the dispute which had arisen about the Defendants involvement with “Mother Hubbards” by the severance of their entire business connection. In all these circumstances I cannot say that I am confident that the Plaintiffs’ contention must necessarily fail.

Conclusion

For these reasons I would dismiss the appeal and affirm the order of the learned trial judge.

 

Talbot -v- Hibernian Group PLC & Anor [2007] IEHC 385 Irvine J

 

Order 19 Rule 28 of the Rules of the Superior Courts provides as follows:-

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

In addition to the aforegoing the court has an inherent jurisdiction to stay or strike out pleadings where no action is disclosed. Principally the court makes such an order to ensure that there is no abuse of the courts process.

The second named defendant, for the purposes of this application, contends:-

1. a) That the plaintiff’s claim discloses no reasonable cause of action;
2. b) That the action is frivolous and vexatious;
3. c) That the pleadings delivered by the plaintiff are prolix;
4. d) That the endorsement of claim should be struck out or amended so as to ensure that the same does not prejudice, embarrass or delay the trial of the action.

The second named defendants have conceded that the plaintiff’s proceedings do not constitute an abuse of process but submits to the court that no reasonable cause of action is disclosed and that the proceedings are frivolous and vexatious insofar as the second named defendant is concerned.

The principles that the court ought to apply when deciding whether or not to strike out proceedings pursuant to its inherent jurisdiction are to be found in the decision of McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] IR 425. The court must be slow to strike out proceedings on a preliminary application and must not do so unless it is satisfied that the pleadings can not be amended to permit of a bona fide cause of action to be pursued.

Insofar as the court’s jurisdiction under O. 19 r. 28, Baron J. in Farrelly v. Ireland stated that:-

“If [a plaintiff] has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.”

SIZE=2 FACE=”Arial”>For the purposes of the court deciding to exercise either its inherent jurisdiction or the jurisdiction conferred upon it under O. 19 r. 28 of the Rules of the Superior Courts the court must accept and proceed on the basis that any statements of fact contained in the pleadings sought to be struck out are true and can be proved by the party concerned.

This court is of the belief that the claim being made as against the second named defendant is one which is bound to fail even if the court is to accept fully all of the facts pleaded by the plaintiff in his statement of claim. Whilst the court must give the plaintiff the benefit of his ability to prove the facts pleaded at the trial, the court does not have to accept the truth of the assertions, implications and inferences which it is asked to draw from these facts. For example, whilst the court, for the purposes of this application, may have to accept that Mr. Gerry Shanahan negotiated a deal which was unfavourable to the union’s members including the plaintiff, the court does not have to accept as fact that his actions resulted from a deliberate conspiracy or collusion with the Hibernian Insurance Company. Similarly, whilst the court must accept that the plaintiff will prove as fact that Mr. Shanahan procured a position in the Hibernian Insurance Company for his wife’s nephew, it does not have to accept as fact that this amounts to proof of the corruption alleged against Mr. Shanahan. Further, even in the event of the plaintiff being in a position to establish such corruption in terms of such appointment the same would not afford Mr. Talbot any cause of action against Amicus. The height of the evidence which Mr. Talbot will be in a position to adduce a trial will be his own evidence and the court cannot accept that he has any possibility of establishing claims of this nature even if he were in the position to overcome issues such as the statute of limitations and other formal objections to his claim.

The terms frivolous or vexatious as referred to in the Rules of the Superior Courts have meanings very different from every day parlance. Those terms can be used to describe proceedings which may in some alternative form have already been dealt with by a competent court or where the court cannot conclude that the plaintiff might reasonably be expected to obtain judgment. The words are also deemed to apply to actions which tend to be rolled forward into another action involving much the same complaints.

The court has considered the decision of McCracken J. in Fay v. Tegral Pipes Ltd. [2005] 2 IR, Dykun v. Odishaw [Unreported, Alberta Court of Queens Bench Judicial District of Edmonton, 3rd August, 2000] Denis Riordan v. An Taoiseach & Ors.,

11th May, 2001 and Flanagan v. Kelly, 26th February, 1999. The court is satisfied that the plaintiff has failed to disclose a reasonable cause of action as against the second named defendant. The court further concludes that the plaintiff’s action is frivolous and vexatious within the meaning of O. 19, r. 27 of the Rules of the Superior Courts and further concludes that exercising its inherent jurisdiction to claim against the second named defendant should be dismissed.

The court has taken into account in reaching its conclusions all of the facts pleaded in the plenary summons and statement of claim and has had regard to the possible inferences which the court has been asked to draw therefrom. The court in deciding whether or not the proceedings are vexatious or an abuse of process and/or whether the same disclose any reasonable potential cause of action has taken into account the periods of time covered by the plaintiff’s complaints and the fact that the plaintiff has litigated previously many of the matters in dispute in the current proceedings in different fora.

Whilst the court has not been asked to draw any conclusions from the most recent pleadings delivered by the plaintiff it does appear that the most recent statement of claim sets out much more clearly, than on previous occasions, the plaintiffs complaints against the first named defendant and also the quantification of his losses which he alleges arises therefrom. The same cannot be said of the plaintiffs claim against Amicus which remains completely amorphous, and is not pleaded in accordance with the Rules of the Superior Courts. The plaintiff’s pleadings against the second named defendant failed to set out facts which are adequately particularised so as to support any maintainable cause of action.

The court will accordingly dismiss the proceedings against the second named defendant. The court will make an order providing for the second named defendants costs of the proceedings as against the plaintiff and will grant a stay on such an order which will only be lifted in the event of the plaintiff instituting fresh proceedings under a new record number against Amicus Limited, the union.

The court will therefore accede to the relief sought by the second named defendant at paras. 1 and 2 of its Notice of Motion dated 22nd February, 2007. The first named defendant is to have three weeks for the delivery of its amended defence.

 

 

 

 

Weldon v. Mooney

[2001] IEHC 3

 

 

 

O’Caoimh J

 

2. This matter comes before the Court on an application made on behalf of the Defendants pursuant to Order 19 Rule 28 of the Rules of the Superior Courts for an Order striking out the Plaintiff’s pleadings on the grounds that they show no reasonable cause of action. As an alternative to the provisions of Order 19 Rule 28 of the Rules reliance is placed upon the inherent jurisidiction of this Court, on the basis that the Court should stay the proceedings as being frivolous or vexatious. In this regard particular reliance is placed upon the Judgment of Costello J (as he then was) in the case of Barry -v- Buckley [1981] IR 306 where at page 308 of the report Costello J stated inter alia as follows:-

 

 

“This jurisdiction should be exercised sparingly and only in clear cases: but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the Plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a Defendant”.

 

3. Earlier in the judgment Costello J stated in reference to Order 19 Rule 28 and the corresponding English Rule that the Court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face. While the provisions of Order 19 Rule 28 arise in circumstances where the Court does not have regard to any evidence, in the context of an application to the Court to exercise its inherent jurisdiction the Court may have regard to evidence put before it. In this application evidence is put before the Court on behalf of the Defendant by Margaret Callan, Solicitor who refers to a Garda abstract arising from the accident in which the Plaintiff was seriously injured. In a statement of James Long, who is a next door neighbour of the Plaintiff, he states that they were accustomed to going out together every Saturday. On Saturday 2nd December, 1995 he and the Plaintiff went down to the Off Licence in Swords. He refers to a brother and another individual being with him and that he and the Plaintiff in these proceedings bought four bottles of Miller, which is an alcoholic substance. In the statement he says that they drank them in a taxi on the way down to Skerries. They got to a premises known as Shannigans in Skerries at about 9.30 p.m.

 

4. They continued to drink. He states that the Plaintiff had about another five or six pints of Carlsberg. The statement continues that the witness James Long and the Plaintiff were very drunk. Mr. Long further states:-

 

 

“The disco in Shannigans finished at about 2 am. We got a minibus back to Swords arriving at about 2.50 am. Four of us got off the mini- bus in Swords outside the park. There was me, Keith, Keith’s girlfriend’s brother, I don’t know his name, and another bloke. I don’t know him. When we got off the bus we were at the bench talking to some girls for about five minutes. Then the bus from Jets pulled in. We decided to get into the back of it and get a lift to J.C Supermarket on Rathbeale Road. That is where the bus actually goes. By the “back of the bus” I mean the luggage compartment. We have done this before three or four times. We decided as the bus started to move we would run up open the door of the luggage compartment, and jump in. When the bus started to move Keith ran up opened the door and jumped in. I couldn’t keep up with the bus and it took off without me. I saw the bus was heading up North Street. I shouted to Keith you are going the wrong way, I was laughing at him. He was laughing and just started waving back at me.”

5. Later in the statement the witness says:-

 

 

“I was drunk but Keith was worse. Previously in the pub he was eating pint glasses, he would put the glass in his mouth bite it and spit out the broken glass, he gets carried away with drink on him.”

 

6. A further statement in the Garda abstract is that of Brid O’Neill of Portrane Co. Dublin. She appears to have been one of the ladies with whom the previous witness James Long and Keith Weldon spoke on the night in question. In her statement she says that she and her associates arrived in Swords at about 2.35 am. They all sat on the bench and had a chat. At about 2.45 a.m. the main bus from Shannigans arrived. She indicates that James Long the Plaintiff and another ‘chap’ got off the bus. She states:-

 

 

“A white coach pulled up with Jimmy Campbell Coaches written on the side of it. It was about 3 am. One of them said that they were going off to get a lift to Glassmore and James Long and Gikes ran across the road to the bus. They opened the boot of the bus and Gikes got in. The bus pulled off and Gikes was sitting in the rear of the bus with its legs hanging out over the back of the bus. James Long ran after the bus.”

 

7. It appears that the reference to Gikes is a reference to the Plaintiff.

 

8. A further statement in the abstract is that of Lisa Jackson. She indicates that at about 3 a.m. she saw a Fingal coach green and white in colour. She was in the company of Brid O’Neill as the bus passed her heading in the direction of the Harp Bar. She heard someone shout “You are going to Portrane on that coach.” As it passed by she saw a youth sitting in the rear boot which was open. He was sitting with legs dangling out of the bus. He was waving at everybody. She did not recognise him as it was too dark. She then states:-

 

 

“Often I heard of people getting into the boot to get a free lift home. The bus driver does not know about this. I do not know who shouted that he was on his way to Portrane.”

 

9. Another witness Sinéad Brady of Swords confirms what is stated by Brid O’Neill and was in her company on the night in question. She said that as the bus pulled off the boot was open. This was after Keith Weldon and James Long ran across the road to the bus. She saw James Long running after the bus and shouting something. She was apparently told that Keith Weldon, the Plaintiff, was in the boot. She states that the bus went off in the direction of North Street, Swords. The boot was still open. In the concluding part of her statement she said “I have seen people get into the boot of the buses before a couple of times .”

 

10. Another witness Catherine Hanratty has given a statement in which she states that she and her colleagues arrived at Swords at about 2.30 a.m. She states that they sat on the bench outside the park on Main Street, Swords and had a “natter”. At about 2.50 a.m. as they were sitting there the minibus from Shannigans arrived. Keith Weldon and James Long got off it. She adds that they were standing talking to some ‘fella’ for about five minutes. The second coach arrived from Boss nightclub and pulled up across the road outside Michael Savage’s Supermarket. Then either James Long or the Plaintiff, she is not sure which one, said “See if he will give us a lift up to Glassmore ”. She saw the Plaintiff and James Long walk over to the bus. She then states in her statement:-

 

“Your man must have said no because they walked around to the back of the bus. The next time I looked over I saw just James standing at the back of the bus. I heard people laughing but I did not know why.”

 

11. The first Defendant has made a statement in which he refers to having driven a bus to Swords village on the night in question and let off the last of his passengers there.

 

12. He states that two youths approached him as the passengers got off and asked him if he was going to Cronins. He says that he told them he was not going there as he was going to Blake’s Cross. He refers to the two youths being young, 17 to 18 years of age, small in height with casual dress. He states that he pulled off and drove down North Street and out onto the Motorway and out to a depot in Blakes Cross. He reversed in the yard and parked the coach, locked it and drove home. He says that he did not go around to the back of the coach. He did not notice anything unusual on the way out from Swords and did not notice the back luggage door was open.

 

13. The Garda abstract contains a short statement of evidence of Garda McCormack who is a Public Service Vehicle Inspector. He examined the bus in question and in his statement indicates that on examination of the luggage compartment door he found it open. On further examination he found that the door was capable of opening and closing from the outside. There was no means of locking it closed. The identification lamp under the door lock was broken. He states that this appeared to be of a recent nature. He found the vehicle in good mechanical condition.

 

14. In reply to the affidavit filed on behalf of the Defendants an affidavit has been filed on behalf of the Plaintiff by Liam T. Lysaght Solicitor. At paragraph 11 of his affidavit he indicates that an investigation was carried out on behalf of the Plaintiff in which the second Defendant the proprietor of Fingal coaches was interviewed. He states that in the course of the interview the second named Defendant admitted that he was aware as were his drivers, that youths got into the luggage compartment of his coaches to “hitch” a lift home. Mr. Lysaght says that further evidence indicates that this practice was known to many of the Defendant’s customers who availed of their bus service and indeed to the security staff of the nightclub from which the Defendants collected their passengers. Mr. Lysaght says that from the investigation carried out by the firm on behalf of the Plaintiff it appears that this practice was common and was known to the Defendants. Mr. Lysaght further states that in these circumstances the evidence of the witnesses who have made statements in the course of the investigation on behalf of the Plaintiff will show that, contrary to what is stated by the first named Defendant, the door of the luggage compartment of the bus was capable of and had prior to this accident been frequently opened by youngsters, who on a number of occasions had hitched a ride in the luggage compartment of the bus. He believes that the state of the door of the bus was such for a number of months prior to and subsequent to the date of the accident.

 

15. On behalf of the Plaintiff the essential case made by Mr. Lysaght in his affidavit is that this is a matter that should be left to the Trial Court.

 

16. Reliance is placed by the Plaintiff upon the provisions of the Occupiers’ Liability Act 1995. In the Act ‘premises’ is defined to include vessels, vehicles, trains, aircraft and other means of transport.

 

17. The term ‘occupier’ is defined to mean a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and a particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser.

 

18. The Act defines recreational user, trespasser and visitor. A trespasser is defined to mean an entrant other than a recreational user or visitor. Recreational user is defined to mean:-

 

 

“an entrant who, with or without the occupiers’ permission or at the occupiers’ implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity including an entrant admitted without charge to a national monument pursuant to Section 61 of the National Monuments Act 1930 but not including an entrant who is present and is:-

(a) a member of the occupier’s family who is ordinarily resident on the premises,

(b) an entrant who is present at the express invitation of the occupier or such a member, or

(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member .”

 

19. The term visitor is defined to mean:-

 

(a) an entrant, other than a recreational user, who is present on the premises at the invitation, or with the permission, of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of “recreational user,”

(b) an entrant, other than a recreational user, who is present on premises by virtue of an express or implied term in a contract, and

(c) an entrant as of right.

20. It appears from the pleadings that the Plaintiff was at all material times a trespasser on the bus in question.

 

Section 4 of the Act of 1995 indicates the duty owed to recreational users or trespassers:

4 (1) In respect of a danger existing on premises, an occupier owes towards a recreational user of the premises or a trespasser thereon (“the person”) a duty-

(a) not to injure the person to damage the property of the person intentionally, and

(b) not to act with reckless disregard for the person or the property of the person, except in so far as the occupier extends the duty in accordance with Section 5.

(2) In determining whether or not an occupier has so acted with reckless disregard, regard shall be had to all the circumstances of the case, including-

(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;

(b) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises;

(c) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed;

(d) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person;

(e) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing;

(f) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity;

(g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof;

(h) the nature of any warning given by the occupier or another person of the danger; and

(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other’s activities.

 

21. With regard to sub paragraphs (b) and (c) of sub section (2), the Plaintiff’s case is, in the context of the allegations in the statement of claim and the evidence that the practice of climbing onto the buses and in particular the rear compartments thereof was known to the Defendants, these paragraphs apply. It is submitted that in this regard the Court has material which would entitle the hold for the Plaintiff, if asked to decide the issue whether the Defendant had acted with reckless disregard towards the Plaintiff, even if he falls to be considered to be a trespasser. With regard to the facts of this case it must be noted that while the Plaintiff is described as “a person of unsound mind not so found” this condition relates to the injuries sustained by him in the accident the subject matter of these proceedings and it is agreed that at the date of the accident complained of he was a person of full age and was not then a person of unsound mind:-

 

22. Counsel on behalf of the Defendants has referred this Court to the decision of the Supreme Court in the case of Brennan -v- Savage Smyth [1982] ILRM 223 . In this particular case the Defendant’s driver proceeded through a car park having seen two children in the vicinity. He intended to reverse his large van and turn it around when he reached the end of the car park. It was established in evidence that because there was a blind area 8 foot wide at the rear of the van the normal procedure was to have a helper guide and direct the driver when reversing. The seven and a half year old Plaintiff had jumped onto the rear bumper of the van. In evidence the Plaintiff said that the van jerked at which time he jumped off fearing that the driver had discovered his presence. The van then began to reverse and the Plaintiff walked slowly behind it intending to remount the bumper. The Plaintiff was then crushed between the van and a lamp post. On this evidence the jury found the Defendant to be 95% responsible and the Plaintiff 5% responsible and awarded damages. In the Supreme Court O’Higgins CJ held that it could be inferred from the evidence of the jerking of the van that the driver was aware of the fact the infant was behind the van. Therefore the driver had a duty before reversing to make sure that the Plaintiff was not in a position of danger. In this case the Chief Justice referred to a decision of McDonald -v- C.I.E. 105 ILTR 13 where Budd J dealt with a proper charge to a jury where the duty of a driver in relation to children is concerned, in the following terms:-

 

 

“The jury should be told that the presence or expected presence of children on or near the travelling surface of a highway casts a heavy responsibility on the driver of a vechicle approaching such children. He must alert himself to their presence and be mindful that they may act in a heedless fashion that children do. He must place himself in such a position and be in readiness to take all such precautions as he reasonably can to avoid causing injury to anyone of them who acts in a heedless fashion… What is required is that he should take all such steps as can reasonably be expected of him as a prudent man bearing in mind the heavy responsibility resting on him in the presence of young children.”

 

23. While the statement by Budd J was made in the context of a duty owed to children it is submitted on behalf of the Defendants in these proceedings that in the context of the Plaintiff being an adult at the time that these considerations do not apply and that the only duty was to take reasonable care in all the circumstances. It is pleaded on behalf of the Defendant that the Plaintiff assumed the particular risk with which he was faced when he climbed onto the bus at the time in question and that in this light the Plaintiff has no cause of action against the Defendant. This Court has been referred to the decision of the Supreme Court in the case of McComiskey -v- McDermott [1974] I.R.75 . The Defendant relies upon the provision of Section 34 subsection 1 of the Civil Liability Act of 1961 insofar as it affords a defence to the Defendant where the Plaintiff has agreed to waive his legal rights in respect of the Defendant’s negligence.

 

24. On behalf of the Plaintiff Mr. Farren has placed particular reliance upon the pleadings and in particular the assertion that the Plaintiff’s activity in climbing onto the bus was a practice which was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant’s late night buses and was well known to each of the Defendants their respective servants and agents. Mr. Farren has referred to the quoted passage from Budd J in the cases McDonald -v- C.I.E . previously referred to herein. Counsel further refers this Court to the decision of the Supreme Court in the case of Sun Fat Chan -v- Osseous Ltd. [1992] 1I.R.425 where at page 428 of the report McCarthy J stated in reference to the jurisdiction of this Court in exercise of it’s inherent jurisdiction in an appropriate case to dismiss an action on the basis that, on the admitted facts it cannot succeed, that if the Statement of Claim admits of an amendment which might so to speak save it and the action founded on it, then the action should not be dismissed. Counsel refers to the further statement at page 428 of the report where McCarthy J stated:-

 

 

“Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought.”

 

25. McCarthy J continued as follows:-

 

 

“Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at early stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour. The procedure is particularly appropriate to actions for the enforcement of contracts, since it is likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract.”

 

26. With regard to the plea of a voluntary assumption a risk it is submitted by Counsel on behalf of the Plaintiff that this does not apply and if anything there is only an issue as to whether the Plaintiff is guilty of contributory negligence. It is submitted that while a child’s position may be somewhat different, the parties drinking alcohol in the instant case are in a position somewhat comparable to children and that this drinking of alcohol itself will go to an issue of contributory negligence. It is submitted that the essential issue is whether the Statement of Claim discloses a reasonable cause of action.

 

 

CONCLUSIONS

27. The essential facts which have to be addressed by this Court in the context of the application before it are those set out in paragraph 3 of the Statement of Claim where it is stated as follows in reference to the bus:-

 

 

“The door of the luggage compartment at the rear of the said bus had no lock and/or was unlocked and capable of being opened by anyone outside the bus, including the Plaintiff. As the said bus was pulling away from a stationary position the Plaintiff boarded the bus by opening the luggage compartment door and climbing aboard. This practice was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant’s late night buses and was well known to each of the Defendants, their respective servants and agents. While travelling on the said bus on the public roadway at or near “The Big Tree” public house at Swords in the County of Dublin the Plaintiff was caused to fall and/or fell from same and has thereby suffered injury.”

 

28. While a dispute may exist as to whether the action of the Plaintiff on the night in question was one which was commonly adopted by a number of youths including the Plaintiff coming home on the Defendant’s late night buses and was well known to each of the Defendants their respective servants and agents, this Court must address the issue as to whether the Plaintiff has disclosed a reasonable cause of action in light of this assertion. There is no allegation in relation to the driving of the bus on the night in question. The essential complaint against the Defendants relates to the absence of a proper lock to lock the door of the luggage compartment at the time. It is clear that if a lock existed on the door in question that it would not have been possible for the Plaintiff to open the door of the luggage compartment and enter that compartment in the manner described.

 

29. The Plaintiff was at the time of the accident described an adult and therefore those considerations as apply at law to allurements in respect of children have no application to the facts of this case. The action of the Plaintiff as described in the Statement of Claim was one which was inherently dangerous in itself. The obligation of the Defendants was to act reasonably in the circumstances. It is only in the context of paragraph (m) of the particulars of negligence alleged:

 

 

“Moving off from the bus stop when the first named Defendant a servant or agent of the second named Defendant knew or ought to have known that the Plaintiff had boarded the luggage compartment of the bus and that therefore it was unsafe so to move.”

 

that a possibility of negligence exists if this allegation is proven. I am not satisfied that the fact that the door of a luggage compartment may be unlocked and may be capable of being opened by anyone is such as to give rise in itself to a claim for negligence against the owner or operator of the bus or driver of it. However if the Defendants knowingly permitted persons to use the luggage compartment to be carried on the bus and drove the bus in knowledge of the fact that they were in the luggage compartment I do accept that a cause of claim may exist in favour of the Plaintiff. In light of this fact and this fact alone I am prepared to deal with this application by refusing same in directing that the claim of the Plaintiff proceed as against each of the Defendants.

30. With regard to the Occupier’s Liability Act of 1995 it remains whether any case of acting with ‘reckless disregard’ for the Plaintiff can be sustained. However, as indicated above, if as alleged the Defendants knowingly permitted persons to use the luggage compartment and drove the bus in circumstances where it was known that the Plaintiff was in the luggage compartment, an issue of negligence remains.

 

31. I am not satisfied that any plea pursuant to Section 34(1)(b) of the Civil Liability Act, 1961 has any application to the facts of this case – as I am not satisfied that the Plaintiff expressly or impliedly agreed to waive any legal right and, as indicated above, the mere fact that there was no lock on the luggage compartment does not on the pleadings give rise to a claim against the Defendants.

 

 

 

Burke -v- Associated Newspapers (Ireland) Ltd

[2010] IEHC 447 Hogan J

 

7. The defendants responded by letter dated 12th June, 2009, saying that the requests were matters of evidence and not appropriate matters for particulars. The plaintiff then duly issued a motion seeking an order pursuant to O. 19, r. 7 compelling a response to these particulars. Order 19, r. 7(3) provides that the court should not order particulars for the purposes of delivering a pleading, they should not be ordered unless they can be said to be necessary or desirable to enable the party seeking them to plead, or for some other special reason. While this application does not, strictly speaking, come within that particular sub-rule – given that the pleadings are closed – one may nonetheless apply these principles by analogy to the present request which comes within O. 19, r. 7(1).
8. The law and practice in relation to the delivery of particulars was authoritatively determined by the Supreme Court in Cooney v. Browne [1985] I.R. 185. This was also a defamation case in respect of a newspaper article published by the defendants where it was alleged that there was a connection between the plaintiff (who was then Minister for Defence, but who had also formerly been the Minister for Justice) and a number of matters which were said to be public scandals. The defence was a classic rolled-up plea and the issue for the Court was whether the plaintiff was entitled to particulars as to what matters in the article were matters of fact.

 

9. As Henchy J. explained in that case, the entire object of particulars is to secure a fair hearing so as to ensure that the litigants will know the case that they have to meet. The requirements of O. 19, r. 7 may thus be seen as a specific application in the context of litigation of the constitutional guarantee of fair procedures and the general premise of Article 34.1 of the Constitution that the administration of justice will be fair and even handed.

 

10. Henchy J. ([1985] I.R. 185 at 191) then articulated the general test to be applied in cases of this kind, namely, that:

 

“…where the pleading in question is so general or so imprecise that the other side cannot know what case he will have to meet at the trial, he should be entitled to such particulars as will inform him of the range of evidence (as distinct from any particular item of evidence) which he will have to deal with at the trial.”

11. Henchy J. went on to conclude ([1985] I.R. 185 at 192):

“It would, of course, be unfair to require the defendants to make a detailed disclosure of their evidence in advance, but all they are asked to do is to identify the matters in the article which they claim to be matters of fact and to state the facts which they intend to prove at the trial for the purposes of supporting those factual statements in the article. Such disclosure is, in my view, not unfair and, indeed, is highly desirable, if not necessary, in the interests of a fair trial.”

12. Indeed, FitzGerald J. had earlier spoken to similar effect in Mahon v. Celbridge Spinning Co. Ltd. [1967] I.R. 1 when he stated that the object of pleadings (of which particulars form part) was to ensure that a party “should know in advance, in broad outline, the case he will have to meet at the trial.” This principle – namely, that particulars must convey the “in broad outline” the nature of the case which the litigant must meet, as distinct from the nature of the evidence which the other party may lead in support of that case – has been consistently endorsed in the subsequent case-law.
13. Thus, for example, in McGee v. O’Reilly [1996] 2 I.R. 229 the plaintiff sued a medical practitioner for professional negligence in respect of the treatment of a young child. In his defence the medical practitioner had contended that he had examined the child following a house call and recommended that the child be brought immediately to hospital. Arising from this the plaintiff sought further and better particulars of the examination which the medical practitioner claimed to have undertaken, including the details of the observations and symptoms and the diagnosis made, and, in particular, the terms in which he had allegedly advised the parents to take the child to hospital.

 

14. The Supreme Court refused to order the particulars sought. As Keane J. noted, the plaintiff already knew from the defence “in broad outline” what was going to be said at the trial by the defendant regarding the house call. Keane J. further added ([1996] 2 I.R. 229 at 234):

 

“In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of pleadings and particulars, while of critical evidence in ensuring that the parties know the case that is being advanced against them and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross-examination before the judge.”

15. This is further illustrated by Doyle v. Independent Newspapers (Ireland) Ltd. [2001] 4 I.R. 594. Here the plaintiff, who was a former coach of the Irish rugby team, sued for defamation in respect of a newspaper article which alleged that he had “become ostracised by the decision-making core among the players.” In response to a plea of justification, the plaintiff raised particulars in respect of the manner in which it was contended that he had been ostracised by senior players of that team and the High Court ultimately directed the defendant to furnish these details.
16. The plaintiff had, however, also sought the actual names of the members of the team who were said to have ostracised him. Although this Court (Quirke J.) directed that these names be furnished, an appeal against this specific aspect of the order was allowed by the Supreme Court. Keane C.J. concluded that it could not be said that the pleading of justification was so “general or imprecise” that the plaintiff did not know the nature of the case he had to meet at the trial. While the plaintiff did not know the actual names of the players concerned, Keane C.J. further noted ([2001] 4 I.R. 594 at 598) that the cases “in which a court will actually order a defendant to say what witnesses he is going to produce at the trial are extremely rare and unusual.”

 

17. In general, therefore, while a litigant is entitled to know from the pleadings the nature of the case he has to meet, he is not entitled to learn in advance the evidence which his opponent will lead in support of that contention. The distinction between what is a matter for pleadings on the one hand and what is a matter for evidence on the other is often a fine one and it is also one which is sometimes difficult to apply consistently in practice. Nevertheless, it seems clear that a plaintiff (or a defendant, as the case may be) is not entitled to further particulars once the essence of the case which he has to meet is clear from the pleadings.

 

18. In the light of this case-law, we may now consider afresh the present motion for further and better particulars. If, for example, we take the request for further details of the places to which Mr. Burke allegedly drove Mr. Gilmartin in their quest for Mr. Ahern, can it realistically be said that the provision of these details materially affects the nature of the case to be advanced by the defendant and which the plaintiff must meet? I do not think so.

 

19. The gist of the defence is, after all, that Mr. Burke met Mr. Gilmartin on a number of occasions with regard to the Quarryvale project and that on the last occasion he sought to solicit a corrupt payment from him. If Mr. Burke did in fact thereafter drive Mr. Gilmartin to various places in an effort to find Mr. Ahern, all that this would tend to show is that the parties were anxious to speak with Mr. Ahern, but it would not materially affect the nature of the defence. Likewise, the request to identify potential witnesses who may or may not have been present at any of these meetings would seem to be a matter for evidence rather than pleading.

 

20. The same holds true of the request for dates and venues. So far as this case is concerned, the precise dates or venues would seem to be immaterial to the defence which the defendants are advancing. Of course, if it were to be established at the trial that a witness was in error in relation to his evidence regarding a date or venue this would go to his credibility (in the legal sense of that term), but the fact that the plaintiff does not know in advance exactly what the defendant’s witnesses will say on these particular points does not mean that without this information the plaintiff does not know “in broad outline” the case which the defendant will make at the trial.

 

21. These examples thus stand in contrast to the central allegation that Mr. Burke sought a corrupt payment, since it is inconceivable that a defendant could seek to rely on a justification defence in a case of this kind without having furnished details of this specific plea to the plaintiff, either by way of defence or by way of particulars.

 

22. For the reasons just stated, it follows, therefore that – adapting the words of FitzGerald J. in Mahon – the plaintiff already knows “in broad outline” the case which he will have to meet. For this reason, I do not consider that it is “necessary or desirable” – if one may be permitted to use the language of O. 19, r. 17(3) in the context of a request which strictly falls under O. 19, r. 17(1) – to direct that the defendant reply to the request for further and particular particulars of 2nd June, 2009.

 

23. In arriving at this conclusion, I have not overlooked the forceful submissions made on behalf of the plaintiff to the effect that I must have regard to the fact that the law of defamation is designed to protect the constitutional right of good name in Article 40.3.2 and, accordingly, must be understood against that constitutional framework. That is undoubtedly so, but that right must also be weighed in the balance against the right of free speech in Article 40.6.1 (cf. by analogy here the judgment of Kearns P. in Hickey v. Sunday Newspapers Ltd [2010] IEHC 249), not least given that the present case engages (or, at least, potentially engages) the right of the media to hold the Government (and, by extension, prominent political personages) to account in the manner expressly contemplated by Article 40.6.1.i. Any debate, however, as to whether the law of defamation must be re-fashioned in the light of these constitutional provisions is really for another day, since at its heart the present motion is not concerned with the substantive protection of the right to good name in Article 40.3.2, but rather with issues associated with procedural fairness in the conduct of litigation.

 

24. Nor do I think that Murphy v. Flood [2010] IESC 21 is of any direct relevance to this question. That case concerned the failure of the Flood Tribunal to supply the applicant in that case with material in the possession of the Tribunal which would (or might) have been relevant in the cross-examination of a leading witness. Leaving aside the fact that the case concerned the powers of an investigative body which has been granted extensive powers by law and which, in any event, was operating in the context of an inquisitorial rather than an adversarial system, the principles enunciated by the Supreme Court seem more directly relevant, for example, to issues of disclosure in discovery rather than to the question of particulars as such.

 

25. In these circumstances, I must refuse the plaintiff’s application for further and better particulars. It follows that it is thus unnecessary for me to consider the additional argument advanced by the defendant, namely, that I should decline to exercise a discretion to order a reply to the request for further and better particulars on the ground that the plaintiff has been guilty of inordinate delay in prosecuting this action. I quite agree that it is most unsatisfactory that the plaintiff should have allowed an unexplained period of almost three years to pass without further action on his part, but it is likewise difficult to understand why it took the defendants almost two years to file a defence.

 

26. This is all the more unsatisfactory given that these proceedings may well have implications for the good name of third parties who are not before the court. It is perhaps sufficient at this juncture to say that, without passing any judgment on the delays to date, given the passage of time since the original article was published – now some eight years – it now behoves both parties to proceed with dispatch in order to have these proceedings speedily brought to trial.

 

Madden -v- Anglo Irish Bank Corporation PLC

[2004] IESC 108 Denham J

 

 

Judgment delivered on the 17th day of December, 2004 by Denham J.

 

 

 

 

1. Liam Madden, the plaintiff/appellant, hereinafter referred to as ‘the appellant’, has brought an appeal to this Court from the judgment of the High Court (Ó Caoimh J.) delivered on the 23rd day of July, 2003.

 

2. Anglo Irish Corporation PLC and William Lacy are the named defendants/respondents. The first named defendant/respondent is referred to hereinafter as ‘the bank’.

 

3. On 23rd July, 2003, the High Court held:

“Mr. Madden has instituted a claim against Anglo Irish Bank Plc. The Bank seeks an Order from this Court dismissing the claim on the basis that it is one that is bound to fail, and that it is one that the plaintiff simply cannot succeed on.

 

The Court approaches this matter with the guidance of a number of authorities that have been opened to the Court by Counsel on behalf of the Bank, by looking at the Statement of Claim itself, and the evidence put before this Court in relation to the history of the matter, both by reference to the affidavit of Mr. Spillane, and the affidavit of Mr. Madden himself. The nature of the claim brought by Mr. Madden is that set forth in the Statement of Claim. Mr. Madden seemed to express some surprise in relation to the terms of it, but the existence of the Statement of Claim as having been served I think is clearly denoted by the terms of the affidavit of Mr. Spillane, who makes specific reference to it. In it, it can be seen that the Plaintiff, Mr. Madden, has advanced this claim as against the Bank in his capacity as a shareholder and creditor of the Company.

 

His complaint, as pleaded in the Statement of Claim, is one in which he contends that the Company acted ultra vires and in breach of Section 60 of the Companies Act in entering into an agreement on or about the10th September 1992, which is the subject matter of the action.

 

The Court has had the benefit of the evidence put before the Court of Mr. Spillane in relation to the history of this case and the history of the various applications to this Court and on appeal therefrom to the Supreme Court, indicating the limits to which the Court permitted the matters to be advanced. It is quite clear on the basis of the history and the number of Orders that have been made to date by the Supreme Court, that the only issue really that survives is whether Mr. Madden is entitled to maintain his claim for damages as against the Bank.

 

The submissions that have been advanced by Counsel, have been made on the basis of an assumption that the plaintiff can prove the matters pleaded by him in the Statement of Claim, served on the Bank, and that if there is any dispute raised on the affidavit put before the Court by Mr. Spillane, that I should prefer the version of events put forward before the Court by Mr. Madden in his replying affidavit. This is the precise basis upon which I assess this matter.

 

The essential issue that comes before the Court is whether the claim is maintainable. Mr. Madden suggests that the Statement of Claim might be amended in some fashion, but he has failed to indicate in any clear fashion how it could be amended to sustain a claim that is made on the Pleadings. Reference has been made to fraud today, but even in that regard, it is quite clear that any fraud alleged by Mr. Madden would itself be wrongdoing alleged to have occurred well in excess of six years, the relevant statutory period and could not be maintained by him, but as indicated by Mr. Madden, he was not precise in any manner in relation to these matters, and it is quite clear that he has failed to indicate any precise amendment that might be made to the claim such as to overcome the submissions that have been made on behalf of the Bank by Counsel.

 

The Court has been assisted by reference to a number of authorities which indicate that on an application such as this, the Court may consider what amendments could be made to a Statement of Claim to overcome a submission that a claim is unsustainable in one form or another, but this is something that the plaintiff clearly is unable to do, to show in any substantive manner how this Statement of Claim could be amended to overcome the essential submissions that have been advanced by Counsel on behalf of the Bank.

 

The essential situation that is faced by Mr. Madden, is that he seeks to advance, in his capacity as a shareholder and creditor of the Company, a claim which in fact can only be maintained by the Company itself or someone acting in its shoes, such as the Liquidator of the Company, and I fully accept the submissions of Counsel in this regard. He has advanced to this Court a number of authorities, including authorities of Courts in England which have been followed in this jurisdiction. I think the most notable authority advanced was the Prudential Assurance v Newman Industries case and this indicates the essential difficulty faced by Mr. Madden and the fact that as a creditor and shareholder of the Company, he cannot maintain the claim in question which he seeks to maintain. As has been indicated by Counsel on behalf of the Bank, this authority has been approved in this jurisdiction by the Supreme Court in the case of O’Neill v Ryan [1993] 11 L.R.Y. 557.

 

In light of these matters, I am quite satisfied that the Bank is entitled to succeed on its motion. I accept fully the submissions that have been made by Counsel on behalf of the Bank. Mr. Madden is left in a situation where he simply cannot succeed in resisting the claim assuming that he could establish, as a matter of fact, everything set forth in the Statement of Claim. He would find himself in a situation where, as a matter of law, he would not and cannot succeed in any claim for damages and it is in those circumstances that I will make an Order granting to the Bank the relief which it seeks at this stage and I will dismiss this claim.

 

I should say that were this matter allowed to proceed, it could only result in a huge increase in costs with no better prospect ultimately to Mr. Madden of succeeding, because it could only give rise to a situation of proving facts which have been assumed to be capable of proof on the basis of a claim which has been noted and which is addressed by the Court as a claim, which in relation to he facts in one that could be proved but which as a matter of law could never succeed.”

 

 

4. The High Court ordered, pursuant to Order 122 Rule 11 of the Rules of the Superior Courts, that the appellant’s claim be dismissed for want of prosecution on the ground that there had been no proceedings for a period in excess of two years from the last proceedings, and it was ordered pursuant to Order 19 Rule 28 of the Rules of the Superior Courts, that the appellant’s claim for damages be struck out on the ground that it disclosed no reasonable cause of action and was frivolous and vexatious.

 

5. The applicant has appealed against the judgment of the High Court. The applicant filed seventeen grounds of appeal, as follows:
6. The Honourable High Court Judge was wrong in Law
7. The said Order is a bad Order
8. The granting of this Order is a Tort in Law
9. The Honourable High Court Judge failed to exercise the discretion available to him in the pursuit of Justice
10. The Honourable High Court Judge failed to strike out these proceedings which were intentionally and positively grounded on the premeditated, fraudulent misstatement and misrepresentation of the facts in Anglo’s pleadings in order to pervert the course of justice
11. The Honourable High Court Judge failed to give weight to the fact that Anglo Irish Bank CORP. as a matter of form intentionally grounded it’s pleadings on the premeditated, fraudulent misstatement and misrepresentation of the facts at issue
12. The Honourable High Court Judge failed to ensure my Right to Fair Procedures
13. The Honourable High Court Judge entertained proceedings which were intentionally and positively grounded on the premeditated, fraudulent misstatement and misrepresentation of the facts by Anglo in it’s pleadings in order to pervert the course of justice
14. The Honourable High Court Judge erred in accepting an unsigned (draft) statement of claim as the factual basis of my claim
15. The Honourable High Court Judge failed to negate the impact of my previous Solicitor, Jim Murphy of Henry Commerford & Co. Solicitors malicious removal of my Rights before the Honourable High Court
16. The Honourable High Court Judge failed to address the issues surrounding the intentional Abuse of Process
17. The Honourable High Court Judge failed to address the breaches of Banking Law by Anglo Irish Bank CORP.
18. The Honourable High Court Judge failed to address the issues surrounding the intentional contempt of Court, by

(i) Anglo Irish Bank CORP. Plc

(ii) By Beauchamps, Solicitors to Anglo Irish Bank CORP.

(iii) By Lyndon McCann Senior Counsel to Anglo Irish Bank CORP.

14. The trial Judge did not allow for the fact this Appellant did not have the benefit of legal advice on the 10th September 1992
15. The failure of the trial Judge to address the fact that Anglo have breached the terms of their own Debenture
16. The Honourable High Court Judge did not as the Order states read the Affidavits
17. The written Order made by the Honourable High Court is not in keeping with the stenographers transcript of the case

 

6. When this appeal commenced the applicant moved three motions before the Court. These motions were heard and considered by the Court and were refused. By notices of motion in this appeal, and appeal no. 223 of 2004, the appellant sought to have produced documents in a notice to produce served on the bank prior to the hearing of the action in the High Court. The documents sought were not produced in the High Court. Given the nature of the proceedings and the issues before the High Court, and this court on appeal, these matters are not appropriate or relevant for consideration by this appellate court on this appeal. The appellant also sought by notice of motion dated 1st October, 2004, to seek declaratory relief in regard to certain letters and facts regarding the lands in folio no. 48205F Co. Cork. Having regard to the appeal before the court and the legal issues to be determined, this relief was refused.

 

In moving these motions, the applicant made many assertions as to the conduct of the solicitors, the junior counsel and the senior counsel for the bank. As the appellant is a lay litigant the court granted him a degree of lee-way to argue his motions. However, I am satisfied that there was nothing before the court to raise any cause for concern as to the conduct of the legal advisers for the bank in this protracted case.

 

7. The applicant filed extensive papers to ground his appeal including wide ranging written submissions. I have considered carefully the papers in this appeal and the oral submissions made by the applicant and counsel for the bank.

 

8. The core of the case of the applicant on this appeal was fourfold. First, he distinguished between public and private companies, and especially private companies established for a single joint venture, and he submitted that the law relating to the corporate shield and the right to sue and be sued was affected by the nature of the company in this case. He submitted that as it was not a public company the law relating to companies, such as the rule in Foss v Harbottle, should not apply, that the joint venture should be considered rather as a partnership. Secondly, he argued that in certain situations, he referred to Johnson v Gore Wood & Co. [2001] 2.W.L.R 72, an individual could take a personal action and he submitted that he came within this law. Thirdly, he submitted that he had been deceived into this agreement, that there had been fraud and deception by the bank. Fourthly, he submitted that the rules had not been complied with in relation to the charge. Also, throughout his submission he made allegations of fraud and deception of many, including the bank, court officers and counsel. He submitted that the statement of claim was not a valid document, that there was a series of deceptions and that his solicitor was party to the deception.
9. This is a case which has already been before this Court on a number of occasions. On 29th day of June, 1998, in Liam Madden v. Anglo Irish Bank Plc and Liam Lacy and Astra Construction Services Limited this Court directed that a contract dated 24th day of November, 1996, be completed forthwith notwithstanding the existence of the within proceedings and that the relief, if any, of the appellant should be limited to a claim in damages against the defendants. Costs were awarded against the appellant.

 

10. This case arises out of a motion by the bank to the High Court to strike out the plaintiff’s claim for damages.

 

11. The statement of claim which was delivered and which was considered the by High Court is before this Court. On the statement of claim it is stated that the plaintiff is Liam Madden and that the defendants are Anglo Irish Bank Corporation Plc. and William Lacy. The Statement of Claim sets out as follows:

“Statement of Claim

delivered on the 29th day of June,

1998 by Henry Comerford & Co.,

Solicitors for the plaintiff,

3 Montpelier Tce., Sea Road, Galway.

 

1. The plaintiff is a mason and resides at 1, The Circle, Owenabue Grove, Carrigaline in the County of Cork.
2. The Defendants are –

1st named: a licensed Bank with a registered address at Stephen Court, 18/21 St. Stephen’s Green, Dublin 2.

2nd named: an Accountant and professional Auditor, with an address c/o Ernst & Young, Barrington House Limerick.

3. The plaintiff is a substantial shareholder in and also a creditor of Edenfell Construction Limited (in liquidation and in receivership) (hereinafter “the Company”), which was incorporated in 1989 with a view to developing property at the “Edenfell” site in Carrigaline, Co. Cork.

 

4. On or about 1989 the first-named Defendant lent Denis and Maeve O’Brien of Glanmire, Co. Cork, £165,000 approximately to purchase lands on or adjacent to the said site.

 

5. On or about 10th September 1992, at a meeting in the said Defendants’ solicitor’s officer in Limerick, the company and the Defendant agreed as follows:

(i) Substantial indebtedness by the said O’Brien’s to the said

Defendant would be discharged by, inter alia, the Company taking over £400,000 of those debts.

 

(ii) Substantial indebtedness by the said O’Brien’s to other creditors be discharged (by way of compromise) by the said Defendant paying them £100,000 approximately in aggregate and the Company assuming liability to the Defendant for that sum;

(iii) A Debenture would be executed by the Company in favour of that Defendant securing repayment of inter alia those liabilities;

(iv) Signed transfer forms in respect of the said O’Brien’s’ two shares in the company would be handed to the plaintiff and to one Denis Barrett.

On that day or thereafter, the Company, the O’Brien’s and the said defendant performed the aforesaid agreement and the Company executed a Debenture, as aforesaid.

6. No formal resolution was passed by the Company then or thereafter approving the aforesaid entire transaction, nor were the procedures set out in s.60(2) – (11) of the Companies Act 1963 complied with: further, at the time, the Company either was not solvent or its creditors were in some jeopardy of not being paid in full., accordingly, the said agreement by the Company accepting liability for the indebtedness of the O’Brien’s and its granting security therefore was ultra vires the Company and further contravenes s. 60 of the Companies Act 1963, and accordingly is null and void and does not bind the Company.

 

7. Purporting to act under the said Debenture, on or about 25th May 1995 the first-named Defendant purported to appoint the second-named Defendant as receiver of the assets of the Company. Arising from inter alia the aforesaid circumstances, that appointment was a nullity and ineffective.
8. Purporting to act as the Company’s receiver, on 25th day of November 1996 the second-named Defendant purported to agree to sell the Company’s undertaking and/or property at Carrigaline, Co. Cork to the Notice Party. Arising from inter alia the aforesaid circumstances, that transaction was a nullity and is ineffective.
9. By reason of the aforesaid, the plaintiff as a substantial shareholder in and creditor of the Company has suffered loss and damage, and he claims

(i) Declarations that

(a) The Company’s taking over the liabilities of the O’Brien’s to the first-named Defendant and/or to third parties was unlawful and ultra vires;

(b) The Debenture given to the Bank was unlawful and ultra vires the Company and accordingly ineffective.

(c) The second-named Defendant is not lawfully a receiver of the Company’s assets and has no authority whatsoever to act as such, inter alia, to agree to sell the Company’s said lands to the Notice Party.

(ii) An injunction restraining the second-named Defendant from purporting to act as receiver of the Company’s assets and enjoining him from conveying the said lands to the Notice Party.

(iii) Damages.

(iv) Further and other relief.

(v) Costs.”

 

12. I am satisfied that no relevant distinction may be drawn in law between a public company and a private company established for a joint venture, so as to exclude the latter company from relevant principles in company law. In fact many of the cases which have addressed the application of fundamental company law principles have related to private companies. Indeed, the fundamental principle in issue was established in Foss v Harbottle (1843) 2 Hare 461. The principle rooted in Foss v Harbottle – that where a wrong has been done to a company the correct plaintiff is the company – applies to both public and private companies, including private companies established for a joint venture. Thus I would dismiss this aspect of the appeal of the appellant.

 

Secondly, the applicant submitted that in certain situations an individual could take a personal action and that he fell within this category. He referred to Johnson v Gore Wood & Co [2001] 2 WLR 72. There is no doubt but that in certain circumstances where a company has suffered loss and damage and a shareholder suffers a separate distinct personal loss, from that suffered by the company, he may sue personally. In Johnson v Gore Wood, Lord Bingham reviewed relevant authorities and held that these authorities support the following proposition:-

“(1) Where a company suffers loss caused by breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder suing in that capacity and no other to make good a diminution in the value of the shareholder’s shareholding where that merely reflects the loss suffered by the company. A claim will not lie by a shareholder to make good a loss which would be made good if the company’s assets were replenished through action against the party responsible for the loss, even if the company acting through its constitutional organs, has declined or failed to make good that loss. So much is clear from Prudential Assurance Co Ltd v Newman Industries Ltd (no. 2) [1982] Ch 204, particularly at pages 222-3, Heron International, particularly at pages 261-2, George Fischer, particularly at pages 266 and 270-271, Gerber and Stein v Blake, particularly at pages 726-729.

 

(2) Where a company suffers loss but has no cause of action to sue to recover that loss, the shareholder in the company may sue in respect of it (if the shareholder has a cause of action to do so), even though the loss is a diminution in the value of the shareholding. This is supported by Lee v Sheard [1956] 1 QB 192, at pages 195-6, George Fischer and Gerber.

 

(3) Where a company suffers loss caused by a breach of duty to it, and a shareholder suffers a loss separate and distinct from that suffered by the company caused by breach of a duty independently owned to the shareholder, each may sue to recover the loss caused to it by breach of the duty owed to it but neither may recover loss caused to the other by breach of the duty owed to that other. I take this to be the effect of Lee v Sheard, at pages 195-6, Heron International, particularly at page 262, R.P. Howard, particularly at page 123, Gerber and Stein v Blake, particularly at pages 726. I do not think the observations of Leggatt L.J. in Barings at p.435B and of the Court of Appeal of New Zealand in Christensen v Scott at page 280, lines 25-35, can be reconciled with this statement of principle.

These principles do not resolve the crucial decision which a court must make on a strike-out application, whether on the facts pleaded a shareholder’s claim is sustainable in principle, nor the decision which the trial court must make, whether on the facts proved the shareholder’s claim should be upheld. On the one hand the court must respect the principle of company autonomy, ensure that the company’s creditors are not prejudiced by the action of individual shareholders and ensure that a party does not recover compensation for a loss which another party has suffered. On the other, the court must be astute to ensure that the party who has in fact suffered loss is not arbitrarily denied fair compensation. The problem can be resolved only by close scrutiny of the pleadings at the strike-out stage and all the proven facts at the trial stage: the object is to ascertain whether the loss claimed appears to be or is one which would be made good if the company has enforced its full rights against the party responsible, and whether (to use the language of Prudential Assurance Co Ltd v Newman Industries Ltd (no. 2) [1982] Ch 204, at page 223) the loss claimed is “merely a reflection of the loss suffered by the company.” In some cases the answer will be clear, as where the shareholder claims the loss of dividend or a diminution in the value of a shareholding attributable solely to depletion of the company’s assets, or a loss unrelated to the business of the company. In other cases, inevitably, a finer judgment will be called for. At the strike-out stage any reasonable doubt must be resolved in favour of the claimant.”

 

 

I would adopt and apply this analysis of the law. Thus it is necessary to make a close scrutiny of the pleadings, which in this case is the statement of claim. Such a scrutiny is necessary to see whether the claim would be made good if the company had enforced its full rights, and whether the loss suffered by the appellant is merely a reflection of the loss suffered by the company. Considering the statement of claim it is clear that the action taken by the appellant is a reflection of the loss suffered by the company. This is seen starkly in paragraph 9 of the statement of claim where the appellant pleaded that by reason of the aforesaid paragraphs the plaintiff as a substantial shareholder in and creditor of the company has suffered loss and damage. It is thus a reflective claim and as such the appellant is not entitled to sue, it is for the company to sue. Consequently I would dismiss this aspect of the appeal also.

 

Thirdly, the appellant submitted that he had been deceived by fraud and deception by the bank. First, this was not pleaded in the statement of claim so prima facie it is not a ground for this appeal. However, even taking a general, rather than a technical, approach, the deception and fraud submitted by the applicant is not a ground apparent on the papers despite his lengthy submissions. I find no basis for this aspect of the appeal.

 

At the core of this appeal is the fact that the High Court, quite correctly, proceeded on the basis that the facts as pleaded by the appellant are correct (even though they were and are disputed by the bank). Insofar as there is any doubt this must be and was determined in favour of the appellant. Taking that approach it is clear, on the pleadings, that the action pleaded by the appellant is a reflective action, a matter more properly brought by the company. Thus I am satisfied the High Court acted correctly in striking out the appellant’s proceedings and I would dismiss the appeal on this ground also.

 

The appellant made submissions as to the validity of the charge and the compliance with rules. However, this line of argument does not affect the fundamental principle as to whether the plaintiff has a reasonable cause of action, whether his action is reflective of a company action. In the circumstances it is clear that he has not such a reasonable cause of action. I would dismiss the appeal sought on this ground also.

 

Throughout the proceedings the appellant made sweeping allegations of deception and fraud by the bank, solicitors and barristers. While I listened carefully to these submissions they did not appear to have any substance and do not address the issue of a reasonable cause of action in the circumstances where the appropriate litigator is the company. Thus I would dismiss those submissions completely.

 

The plaintiff made submissions that the statement of claim was not correct and indeed made allegations against his then solicitor. The statement of claim considered by the High Court, and by this Court on appeal, is the statement of claim delivered by his solicitor and set out in this judgment. The appellant cannot succeed in this case by allegations against his then solicitor. This case is grounded on the statement of claim delivered and filed. However, even if one took a wider approach, as the appellant is a lay litigant, these pleadings do not raise such issues, or indeed even infer to such issues, as were submitted by the appellant. I would dismiss the appellant’s claim on this aspect of the appeal also.

 

As the appellant is a lay litigant the Court gave him lee-way and did not enforce rules of procedure and pleadings. I listened to the submissions carefully to ensure that this lay litigant did not obfuscate a good point. One matter, for example, was that at one stage of the submissions he said he did not have a legal adviser at a critical time when the loan was being transacted. However, even a cursory consideration of the documents indicates that legal advice was available to him.

 

All in all, having carefully considered the papers and the oral submissions I would dismiss the appeal of the appellant.

 

Maguire v. South Eastern Health Board

[2001] IEHC 11 Finnegan J

 

9. The Rules of the Superior Courts 1962 Order 19 Rule 29 and the Rules of the Superior Courts 1986 Order 19 Rule 29 repeat this provision in a slightly modified form –

 

 

“No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.”

 

10. A considerable body of jurisprudence developed as to the circumstances in which the Court would exercise its discretion in deciding whether or not to grant relief by way of declaration. Thus relief will not be given in respect of future rights as the Respondents obligation will vary at different dates and in different circumstances: A.G.-v-Scott (1905) 2KB 160. Nor where a declaration will be of no practical value: Bennet-v-Chappell (1965) 3 All E.R 130. In Gibson-v-The Union of Shop Distributive and Allied Workers (1968) 2 All E.R 252 Buckley J. said –

 

 

“I have been referred to a number of authorities but I do not think that it is necessary for me to go through them, for the problem turns on the question how the Court ought to exercise its discretionary power of granting declaratory relief. I can easily understand why, if a Plaintiff starts an action seeking declaratory relief in respect of some question of such a kind that no legal results will flow from the declaration which he seeks, the Court will be disinclined to entertain his action and to grant any relief in it; and I can understand that the action would be dismissed as being one which it would serve no useful purpose to try. If however, when the action is instituted the Plaintiff has or may have a good ground of complaint, not of an academic character but involving substantial legal issues, it seems hard that, when the case comes on for trial, he should be faced with the suggestion that it ought not to be tried because by then the relief which he seeks has become much less important or has ceased to have practical implications, owing to the lapse of time between the date when he issued the writ and the time when, having regard to the business of the Court and the necessary preparatory steps, the action comes on for trial.”

 

11. On the facts of that case the Plaintiff remained suspended under the decision which he sought to impugn although that suspension had but a few weeks to run and his conduct during those weeks would be affected by the declaratory relief. The relief sought was not purely academic. The decision endorses a long line of authorities which held that the Court will not deal by way of declaration where the ground of complaint is of an academic character only. While declaratory relief was there granted the decision does not support the Applicant’s claim for declaratory relief.

 

In Parsons-v-Iarnrod Eireann/Irish Rail (1997) 8ELR 203 Barrington J. refused to grant the Plaintiff a declaration in relation to his dismissal from employment he having opted to pursue his remedy under the Unfair Dismissals Act 1977 noting that declarations on matters of contract were in aid of a Plaintiff’s common law remedy and had no independent existence apart from such remedy: the heart having gone out of his claim there was no free standing relief which could be claimed at law or in equity. In short the declaratory relief sought in the circumstances of that case could avail the Plaintiff nothing and was accordingly refused.

12. As to the approach adopted by the courts in exercising its discretion in relation to declaratory relief and in particular the consistent approach in refusing to grant relief where the same could be of no practical benefit to an Applicant see Devlin-v-The Minister for Arts Culture and the Gaeltacht and Others (1999) 1IR 47, Brady and Others -v-Cavan County Council (2000) 1ILRM 81.

 

13. Having regard to the foregoing I propose to consider whether it would be appropriate in the exercise of my discretion to grant declaratory relief dealing with the two questions raised by the Applicant in whatever forms such declarations might be couched.

 

14. As to the first question it is necessary to consider whether there is any benefit to be derived from making a declaration now as to the services to which the Applicants were entitled at the time of the First Named Applicant’s confinement. On behalf of the Applicants it is argued that such a declaration would be of benefit to the Applicants who propose having a further child or children. I do not think that this can be so as what would be necessary or appropriate in relation to a further confinement could only be determined in the light of circumstances existing at that time. In the exercise of my discretion therefore I refuse to embark upon an enquiry for the purposes of making such a declaration.

 

15. The Applicants further urge upon me that such a declaration would be of benefit to other persons who might wish to have a home delivery. In this regard reliance is placed on Belfast West Power Limited and Another-v-Belfast Harbour Commissioners and Another (1998) NILR 112. I do not consider that this case supports the Applicants claim for declaratory relief. I am satisfied that any declaration that could be granted in this case could be of no assistance to other persons seeking the provision of home delivery services as the circumstances in each case will vary. Any decision in this case would turn on its own peculiar circumstances. To grant a declaration would expose Health Boards to the possibility of a flood of litigation seeking similar declarations in respect of issues which have become moot and lead to them incurring a heavy burden in costs in dealing with the same and all to no practical advantage either to the particular Applicant or to society as a whole. In these circumstances it would be inappropriate to exercise my discretion and make declarations as sought by the Applicants in relation to the first question.

 

16. Again the Applicants say that they could rely upon such a declaration in District Court proceedings to recover damages to recoup the excess of expense properly incurred by them over the amount of the ex gratia payment made. The Applicants can of course bring a claim in the District Court but such a claim would carry District Court costs only. The device of having a declaration made in this Court in aid of a District Court claim would greatly increase the costs of such litigation and could be regarded as an abuse of process.

 

17. With regard to the second question the Supreme Court held in Spruyt and Another-v-Southern Health Board unreported 14th October, 1988 in considering the Health Act 1970 Section 62(1) that a Health Board’s obligation under that provision could not be satisfied by an offer to indemnify a person entitled to such services against the cost of them making their own arrangements. In the light of this I do not consider it proper to advance on an enquiry as to the adequacy of the ex gratia payment made to the Applicants towards the costs of such services.

 

18. My conclusion therefore is that events having overtaken the principal relief sought in this action being an Order of Mandamus such an Order cannot now issue. While the Court has jurisdiction to grant declaratory relief such relief should not be granted where the declaration relates to future rights or depends upon a contingency or where a mere academic question of no practical value is involved all of which considerations apply here.

 

 

 

 

19. There are disputes as to fact and medical opinion and practice disclosed in the Affidavits filed in this matter but even if these should be resolved in their entirety in favour of the Applicants it would still be inappropriate to grant declaratory relief. Accordingly I do not propose to embark upon an enquiry in to such facts, opinions and practice.

 

20. I refuse the application for declaratory relief.

 

Moran v. Oakley Park Developments Ltd.

[2000] IEHC 39

 

 

O’Donovan J

JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 31st day of

March, 2000

1. In this case, I am asked to consider a Motion on behalf of the Plaintiff dated the 1st day of October, 1999 seeking Judgment in default of Defence and a Motion on behalf of the Defendants dated the 1st day of November, 1999 seeking; on the one hand, an Order vacating a Lis Pendens registered by the Plaintiff and, on the other, an Order dismissing the Plaintiff’s claim, either pursuant to Order 19, Rule 28 of the Rules of the Superior Courts, or pursuant to the inherent jurisdiction of the Court; the Defendants maintaining, in either case that the Plaintiff’s claim does not disclose a reasonable cause of action, or that the same is frivolous or vexatious.

 

Although the Plaintiff’s Notice of Motion was first in point of time, it was

agreed by the parties that I should first of all adjudicate upon the Defendants’ Notice of Motion dated the 1st of November, 1999 and, in that regard, it was conceded by Mr. George

Brady, Senior Counsel on behalf of the Defendants that the Plaintiff’s Statement of Claim disclosed a cause of action and, accordingly, for the purpose of adjudicating upon the reliefs sought by the Defendants, I must assume that the facts pleaded in the Statement of Claim and the facts asserted in the grounding Affidavit sworn herein by the Plaintiff, Eoin Moran, on the

10th day of December, 1999 are true.

2. Before considering the facts of the case, I think it as well to set out the circumstances under which the Court has power to dismiss the Plaintiff’s proceedings. In this regard, Rule 28 of Order 19 of the Rules of the Superior Courts provides:

 

 

“The Court may order any pleading to be struck out on the ground

that it discloses no reasonable cause of action or answer and in any

such case or in case of the action or defence been shown by the pleadings

to be frivolous or vexatious, the Court may order the action to be stayed

or dismissed or Judgment to be entered accordingly as may be just”.

 

3. In addition to that specific rule, there is an inherent jurisdiction in the Court to ensure that there is no abuse of the process of the Court. In that regard, in an unreported Judgment delivered on the 28th day of July, 1999 in the case of Jodifern Limited v. Patrick G. Fitzgerald and Margaret Fitzgerald , McCracken J. reviewed what appears to me to be the relevant authorities and, in particular, he referred, with apparent approval, to a Judgment of Costello J. delivered in the case of Barry v. Buckley (1981 I.R. at page 306) and a Judgment of McCarthy J. in the Supreme Court delivered in a case of Sun Fat Chan v. Osseous Limited (1992 1. I.R. at page 425); the import of which Judgments is that, while the jurisdiction should be exercised sparingly and only in clear cases so that, generally speaking, that Courts should be slow to entertain such applications, if, having considered all relevant documentation, the Court is satisfied that a plaintiffs claim must fail, then it is a proper exercise of its discretion to strike out proceedings on the grounds that their continued existence cannot be justified and manifestly causes irrevocable damage to a defendant. In addition, McCracken J. referred to an unreported Judgment delivered on the 15th day of March, 1999 by Macken J. in the case of Supermacs (Ireland) & Anor v. Katesan (Naas) Limited & Anor in which, when considering this inherent jurisdiction of the Court, the learned Judge said:

 

 

“Turning now to the question as to whether of not the defendants

are entitled to have their relief relying on the inherent jurisdiction

of the Court, when one is considering a claim of this nature based

on the inherent jurisdiction of the Court, it is permissible for

Affidavit evidence to be filed. A number of Affidavits have been

filed and, although there are several conflicting elements in the

Affidavits there are certain principles which Mr. Buttenshaw has

correctly acknowledged and conceded, including the fact that I

must assume;

(a) that every fact pleaded by the plaintiffs in their Statement of

Claim is correct and can be proved at trial, and

(b) that every fact asserted by the plaintiffs in their Affidavits is

likewise correct and can be proved at the trial” .

This particular approach which is adopted as being the correct

approach in all of the cases in which Affidavit evidence has been

adduced does mean that, insofar as there may be conflict between

matters averred by the plaintiffs and the defendants in their respective Affidavits, such conflicts must be, at least for the purpose of this

application, resolved in favour of the plaintiff .”

4. McCracken J. expressed his entire agreement with that statement of the law and, for the purpose of the Judgment which he was delivering, he adopted it. Likewise for the purpose of this case, so do I.

 

5. In the Plenary Summons delivered herein, the Plaintiff’s claim is stated to be:

 

 

“Specific performance of a contract made between the Plaintiff of the

one part and the Defendants of the other part whereby the Defendants

agreed to sell and the Plaintiff agreed to purchase ALL THAT AND THOSE

the lands known as 15 Ryemont Abbey, Leixlip in the County Kildare,

together with the premises to be build thereon by the Defendants, being

the property described in Folio 8876 of the Register County Kildare.”

 

6. In the Statement of Claim at paragraph 2 it is pleaded (inter alia) that:-

 

 

“The Defendants at all material times carried on business as developers

of land and builders of houses, in particular, at a housing estate known

as Ryemont Abbey, Leixlip in the County Kildare”

 

At paragraph 3 it is pleaded that:-

 

“By an oral agreement made in or about the month of May 1996, the Defendants agreed to build and convey to the Plaintiff a dwellinghouse

on site number 15 of the said housing estate for the sum of

£101,000.”

 

 

7. At paragraph 4 it is pleaded that:-

 

 

“It was agreed between the Plaintiff and the Defendants that the said house should be mainly one of the standard types and design being constructed on the said estate but subject to certain modifications requested by the Plaintiff and accepted by the Defendants between the month of May, 1996 and November, 1996 inclusive. The said modifications were duly incorporated in the construction of the said house.”

 

8. Particulars of the aforesaid modifications are included in the Statement of Claim and, in paragraph 5 thereof, it is pleaded that:-

 

 

“Pursuant to the aforesaid agreement the Defendants on or about the

16th day of May, 1996 prepared and tended for execution by the

Plaintiff a written form of contract incorporating the terms theretofore

agreed between the parties and expressly providing that, on or before

the closing date as therein defined, the Defendants should procure the

grant of a Deed of Transfer to the Plaintiff in the form of a draft Deed

of Transfer produced therewith. The said written form of contract further provided for payment of £7,600 (being the balance of the deposit of £10,100 of the contract price of £101,000) on the signing of the said contract and the balance of the contract price on the closing day”.

 

9. At paragraph 6 of the said Statement of Claim it is pleaded that:-

 

 

“In or about the month of July, 1996, the Plaintiff and the Defendants

agreed that clause 26 of the said written form of contract should be

amended to read as follows “the figures 26. The vendor is erecting

at the request of the purchaser an extension to the rear of the premises

not in accordance with planning permission. However, the vendor

confirms the premises. Save the extension, comply with planning

permission and the full property erected complies with building

regulations”. “.

 

10. At paragraph 7 of the Statement of Claim it is pleaded that:-

 

 

“The Plaintiff signed the said written form of contract with the

amendment set out at paragraph 6 hereof and returned the same

to the Defendant’s Solicitor’s on the 11th day of September, 1996

together with the said sum of £7,600 in part payment of the

contract price.”

 

11. And at paragraph 8 of the Statement of Claim it is pleaded that:-

 

 

“The contract between the parties has been partly performed”:

 

the details of the alleged part performance being included in the said paragraph but I do not

consider it necessary for the purpose of this Judgment to review them in detail.

 

12. A number of Affidavits have been filed on behalf of the parties from which it is clear that a conflict of evidence arises in a number of respects. However, in the circumstance that, as I have already indicated, for the purpose of this application, I must assume that every fact asserted by or on behalf of the Plaintiff in Affidavits filed on his behalf are correct and can be proved at the trial of this action, I cannot and do not adjudicate upon those conflicts. Nevertheless, Counsel for the Defendant’s referred to a letter dated the 3rd day of May, 1996 addressed to the Defendant’s Solicitor, Mr. Enda P. Moran, by Messrs. McEvoy & Associates, Auctioneers & Estate Agents, in which Messrs. McEvoy & Associates advised Mr. Moran that they had negotiated the sale of number 15 Ryemont Abbey aforesaid to the Plaintiff for a sum of £101,000 and had received a booking deposit of £2,500 from the Plaintiff but pointing out: “This sale is subject to contract, good title, loan approval and satisfactory surveyors/architects report” and noting, “that this firm has no authorisation to bind our client to any contract for sale and it is understood that no contract shall come into existence until such time as formal contracts are exchanged and a deposit paid”.

 

13. Counsel for the Defendants also referred to a letter dated the 15th day of May, 1996 addressed by the Plaintiff’s then Solicitors Messrs. Augustus Cullen & Son, to the Defendants said Solicitor, Mr. Moran in which reference is made to the said alleged agreement for sale of 15 Ryemont Abbey but in which the Plaintiff’s said Solicitors specifically indicate that the said sale is “subject to contract/contract denied” and that, “we have no instructions to bind our client in any negotiations at this stage and no contract shall be deemed to exist until such time as both parts of the contract have been signed by both parties and the full deposit paid”. In the light of that correspondence and, indeed, further correspondence which passed between the Solicitors for the parties and in which specific reference is made to the said agreement for sale being “subject to contract/contract denied”, Counsel for the Defendants submitted that, in fact and in law there was no concluded agreement for sale between the parties because it was a precondition to the conclusion of such an agreement that there would be an exchange of contracts which, in fact, never occurred and that, in any event, the use of the phrase “subject to contract” in the correspondence is inconsistent with the recognition of the existence of a concluded agreement. In support of those propositions, Counsel for the Defendants referred to the decision of the Keane J. in Mulhall v. Haren (1981 1 I.R. at page 364) which was approved of in a Judgment of the Supreme Court delivered in a case of Eoin Boyle and Susan Boyle v. Maura Lee and Eve Goins (1992 1 I.R. at page 555) and to a decision of the Supreme Court delivered in a case of Joseph Kelly v. Irish Nursary & Landscape Company Limited (1983 I.R. at page 221), which decisions appeared to be in point. Counsel for the Defendants also submitted that there were no acts of part performance on the part of the Plaintiff and that, in any event, in order to succeed in an action for specific performance under the doctrine of part performance it must be shown that there was a concluded contract between the parties. In support of that proposition, Counsel for the Defendants referred to a decision of the Supreme Court in a case of Leslie Mackey v. David Wilde and Helmet Longin (1998 1 ILRM at page 449) and to a Statement at page 135 of Irish Law of specific performance by John Farrell were in it appears,

 

 

“for a Plaintiff to get as far as relying on part performance there must

be a concluded contract. If there is no valid contract the question of

part performance does not arise”.

 

essentially, therefore, Counsel for the Defendants submitted that, irrespective of any conflict of evidence with regard to the facts of this case, in the light of the correspondence which was exchanged by the parties and, in particular, in the light of the assertion by the Plaintiff’s Solicitors in their said letter of the 15th day of May, 1996 to the Defendant’s Solicitors that the said agreement was “subject to contract” and that “we have no instructions to bind our client in any negotiations at this stage and no contract shall be deemed to exist until such time as both parts of the contract have been signed by both parties”, it would be inequitable were the Plaintiff not bound by the condition imposed by his own Solicitors: namely, that the agreement was subject to contract and that, in that event, it is certain law that an agreement subject to contract is not a concluded agreement.

14. On behalf of the Plaintiff, Mr. Geraghty submitted that, to succeed in having the Plaintiff’s claim dismissed at this stage of the proceedings, the onus was on the Defendants to establish that there was no possibility that the Plaintiff could succeed in his claim herein: in other words, that the Plaintiff’s claim was doomed to inevitable failure. However, Mr. Geragthy argued that, not withstanding the correspondence which was exchanged by the parties, it was open to the Court to conclude that the parties had entered into an oral contract which was backed by acts of part performance and that the strictures of the correspondence in the month of May, 1996 was waived by subsequent conversations and by the actions of the parties. In particular, he submitted that the house in question had been built and tailored by the Defendants to the Plaintiff’s requirements. In this regard, Mr. Geragthy referred to a decision of Costello J. in a case of D.K v. King (1994 1 I.R. at page 166) in which it was held that, when deciding whether to strike out proceedings the Court should not adjudicate on questions of fact or controversial legal issues raised by the proceedings but must confine itself to considering whether or not the issues raised are frivolous or obviously unsubstantial. In the light of that decision, Mr. Geraghty submitted that it would be a travesty of justice were this Plaintiff denied the opportunity of contesting his claim herein.

 

15. While, in the light of the authorities to which I have been referred, I have to admit to having certain reservations about the matter, I think that, on balance, the Plaintiff has an arguable case which is neither frivolous or vexatious. Accordingly, I am not disposed to dismissing his claim herein. Neither, however, do I think it appropriate to give judgment in default in defence. So far as I am concerned, the case will go to a plenary hearing.

 

McCarthy v. McNulty

[1999] IESC 70

 

Judgment of the Hon. Mrs. Justice Denham delivered the 22nd day of October, 1999. [Nem. Diss.]

1. This is an appeal by the Plaintiff/Appellant (hereinafter referred to as the Appellant) against an Order of the High Court, Mr. Justice Johnson, given on 16th June, 1997. By Notice of Motion dated 14th May, 1997 the Defendants moved to apply to the High Court for leave to amend the defence to include a counterclaim against the Appellant. The Affidavit which grounded the Motion was deposed by Paul Beegan who described that the proceedings arose out of an accident which happened on 11th July, 1992 when the Appellant was a back seat passenger in his own car driven by the first named Defendant. The Appellant’s claim is for damages for injuries suffered when the car collided with two other vehicles as a result of the negligence of the first named Defendant. The first named Defendant was driving the car with the consent of the Appellant because the Appellant had consumed too much alcoholic drink. Three other actions have been brought arising out of this accident and the total cost of the claims to date is £168,438.00. The second named Defendant (herein referred to as the M.I.B.I.) was joined to the proceedings pursuant to Clause 2(2) of the Memorandum of Agreement made on 21st December, 1988 between the Minister for the Environment of the one part and the Motor Insurers’ Bureau of Ireland. It is the case of the M.I.B.I that the expense incurred by it arose from the fact that the Appellant permitted an uninsured person, the first named Defendant, to drive the Appellant’s car. It is the case of the M.I.B.I. that in the other actions arising from this accident the Appellant, as a Defendant, was vicariously liable for the negligent driving of the first named Defendant, that the monies paid by M.I.B.I. were monies paid for and on behalf of the Appellant and to the use of the Appellant and that the payment of these monies relieved him of a liability which would otherwise have attached to him. Further, it is the M.I.B.I.’s case that, it would be unjust to permit the Appellant having cost the M.I.B.I. a very large amount of monies by permitting an uninsured driver to

 

 

 

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drive his car, to now recover further compensation for his own injuries without having to reimburse the M.I.B.I. for the monies which it paid out on his behalf.

 

2. On the matter coming before the High Court on the 16th June, 1997, before Mr. Justice Johnson, it is clear, from Counsels’ agreed note, that the application was opposed by Counsel on behalf of the Appellant who referred to Order 19 Rule 2 and Order 21 Rule 14 of the Rules of the Superior Courts. It was argued by Counsel for the Appellant that it would not be convenient for the Appellant for the claim and counterclaim to be disposed of together, that there was insufficient connection between them, that the only issue in common between the claim and the counterclaim was whether or not the Appellant knew or ought to have known that there was no insurance. It was pointed out to Mr. Justice Johnson that the Appellant had suffered very substantial injuries and that there would be a considerable amount of evidence in relation to same. In addition, it was further stated to Mr. Justice Johnson that, there was a plea of contributory negligence including allegations that the Appellant allowed himself travel as a passenger in the car when it was defective, when the driver of same was drunk and without wearing a seat belt. Also, it was argued before Mr. Justice Johnson that, insofar as the counterclaim was concerned there Would be an issue as to whether or not the amount of the three settlements (£l68,000) was reasonable and that there would be considerable amount of dispute as to whether or not the M.I.B.I. were entitled in law to recover from the Appellant. Mr. Justice Johnson made an Order giving the Defendants liberty to amend their defence to include a counterclaim. He held that there was one common issue which was of considerable importance; that issue was the lack of insurance. He contended that it would not be proper to exclude the Defendants from making a counterclaim in these proceedings in respect of monies paid to the other parties.

 

 

 

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3. The Appellant appealed on the following grounds:

 

 

“1. That the Learned Judge erred in law and in fact in allowing the Defendants to amend their Defence to include a Counterclaim.

 

2. That the Learned Trial Judge erred in law and in fact in holding that the intended Counterclaim could be conveniently disposed of in the [Appellant’s] action and that it ought to be allowed and in failing to refuse permission to the Defendants to amend their defence to include a Counterclaim.

 

3. That the learned Trial Judge erred in law and in fact in holding that the Counterclaim ought not to be disposed of by way of an independent action and in failing to exclude the Counterclaim.

 

4. That the Learned Trial Judge was wrong in fact and in law in exercising his discretion and allowing an amendment of the Defence to include a Counterclaim and in allowing the Counterclaim to be heard at the trial of the [Appellant’s] action and in holding that the issues raised in the Counterclaim could be conveniently tried at the same time as the hearing of the [Appellant’s] action and that the Counterclaim ought not to be extended and heard in an independent action.”

 

4. Ms. Eileen Lydon, S.C., on behalf of the Appellant, submitted that the issue as to whether or not the counterclaim is allowed is a matter for the discretion of the Court but that in exercising its discretion the Court should look at all the circumstances. Once the Court is aware that the Appellant does not admit any allegations the Court should consider the action as a full fight. The question then becomes whether all the issues should be heard together. She submitted that in the circumstances it would not be convenient to dispose of the counterclaim in the Appellant’s action. She relied upon Order 19 Rule 2 of the Rules of the Superior Court which states:

 

 

“A defendant in an action may set-off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court may, on the application of the plaintiff before trial, if in the opinion of the Court such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.”

 

 

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5. Ms. Lydon also relied upon Order 21 Rule 14 which states:

 

 

“Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.”

 

6. Counsel submitted that it would not be convenient or just to the Appellant for the counterclaim to proceed within the Appellant’s action. She submitted that there was only one common issue, that is whether or not the Appellant knew or ought to have known that the first named Defendant was not insured. But that apart from the question of insurance, the Appellant had suffered very severe injuries and there would be extensive evidence as to that and there would also be, if the counterclaim was to be proceeded with at the same time, the complicated issues as to the settlements, as to whether they were reasonable, and also the liability of the parties. She stated that the Appellant had not given M.I.B.I. authority to settle on his behalf. Ms. Lydon stressed that it was not convenient to the Appellant for these matters to proceed in the one action. She urged on the Court that the separate issues be not dealt with by way of the counterclaim, that it was not convenient. She referred to South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord [1897] 2 Ch 487.

 

 

7. Mr. Felix McEnroy, S.C., on behalf of the Defendants, referred to Quinn v. Hession, (1879-80) 4 L.R. Ir. 35 and Arthur v. Arthu r (1879-80) 3 L.R. Ir. 1 . He urged three criteria for the Court:

 

 

 

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1. The desirability of finality in litigation;

 

2. The avoidance of a multiplicity of suits; and that

 

3. Prudent steps be taken to reduce costs of litigation.

 

8. He argued that the Appellant had not been caught by surprise and referred to a letter of 3rd February, 1994 to the Appellant’s solicitors from Irish National Insurance where reference was made to a “properly completed Mandate” from the policy holder’s driver, John McNulty, and that they would be defending claims made on behalf of M.I.B.I., and further:

 

 

“We will be pursuing recovery of appropriate outlays from Mr. McCarthy and Mr. McNulty in due course.”

 

9. As regards the issue of convenience he considered what it meant and suggested appropriate questions were:

 

 

1. Is the Appellant embarrassed in some regard by the counterclaim?

 

2. Would the issue of the counterclaim unnecessarily delay the trial?

 

3. Is there any other compelling reason why it is inconvenient?

 

10. He said that in this case there were the same parties litigating the same factual matter. The counterclaim was concerned with the consequences of the particular accident. He suggested that the same parties would be in Court on two occasions if the matter was not dealt with in the one action. He submitted that he did not see evidence before either the High Court or this Court that the Appellant is embarrassed by defending the counterclaim in these proceedings.

 

 

 

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11. In reply Ms. Lydon said that this case raises issues that are both complex and difficult. She stated that it would be inconvenient, especially for the Appellant, if the counterclaim was permitted to proceed in this action.

 

 

Decision

 

12. The jurisdiction inherent in the High Court and this Court on appeal, together with the jurisdiction as established under the Orders of the Superior Courts, both Order 19 Rule 2 and Order 21 Rule 14, enable the Judge to act in accordance with his discretion. It is quite clear that having considered the case presented by the parties in the High Court that the learned High Court Judge considered the appropriate Rules of the Superior Courts and exercised his discretion in favour of allowing the counterclaim on the grounds as set out above. There was no evidence in the High Court or in this Court that the convenience of the Appellant would be seriously embarrassed. There was no evidence that it would be unjust to the Appellant. There is no doubt that it will be a complex action. There are serious issues to be tried, and it was stated that there will be much evidence on the injuries of the Appellant. However, the core of the case is the insurance issue. In considering the issues of convenience and justice the criteria proposed by Mr. McEnroy are relevant. It is desirable to have finality in litigation, multiplicity of suits should be avoided and it is very important to take steps to reduce the costs of litigation. In all the circumstances of the case it appears that the matters can be conveniently disposed of in the pending action and that the justice of the situation favours such an approach. Accordingly, I would affirm the Order of the High Court and dismiss the appeal.

McMahon & Anor v. WJ Law & Co. LLP & Ors

[2007] IEHC 51

MacMenamin J.

The Reliefs now sought

The first and second named defendants now additionally seek an order striking out these proceedings, restraining the first named plaintiff from instituting proceedings against them without leave of this court. This is an order known as an “Isaac Wunder order”. This application is based upon the persistent institution by the first named plaintiff of frivolous or vexatious proceedings (recited earlier) and the earlier history outlined.

 

It has been pointed out the first named plaintiff has brought one or more actions to determine an issue already determined by a court of competent jurisdiction; that (while she was active in the proceedings) the second plaintiff could not derive any benefit from the proceedings; that the proceedings had been brought for an improper purpose, and for the purpose of oppressing the first and second named defendants in the use of the lands purchased by them; and in the face of the fact that the issues in question have already been determined. It is uncontroverted that the proceedings herein are being used as a vehicle to resist a costs order made against the first named plaintiff by the Master of the High Court. The first and second named defendants were each awarded costs in the special summons proceedings in the sum of €1,000 inclusive of VAT which said costs have not been discharged by the first named plaintiff despite a written demand been sent by registered post on 19th January, 2007. I must accept this submission also.

 

In an affidavit sworn on 26th February, 2006, the first named plaintiff alleges that the first and second named defendants fraudulently purchased the property without auction whilst the ownership was been contested in this court. Allegations are again made against a firm of solicitors. It is said that no probate was taken out on the estate of Peter Shevlin Senior that is the father of Peter Shevlin Junior whose estate is in issue. It is said that the first and second named defendants are owners of land adjacent to the Shevlin lands and that transactions took place between W&J Law and a firm of solicitors who were involved in the administration of Mr. Shevlin’s estate. Allegations have also been made as to the lands in question being undervalued, and that they are now worth substantially greater sums than the total value of the estate which is stated to be €3,558,139.65. Whether Mr. McMahon has any locus standi to raise such contentions which prima facie may be ones which might be maintained by the estate may be in issue as well as the evidential basis for these, increasingly serious allegations. No evidence has been adduced as to the relevance of these contentions.

During the course of the hearing on 26th February Mr. McMahon requested a short adjournment to seek further advice from Ms. Sharma. This was acceded to. Thereafter, on the same day, Mr. McMahon made further submissions to the effect that he was a true owner of the land, that he had been led to believe that he would be the beneficiary by the late Mr. Shevlin, and that the issue regarding the lands is one which went back a number of generations. Mr. McMahon was also permitted to open affidavits which he had sworn in notice of motion against Mary and Peter Comer, as sworn to set aside the whole of the earlier proceedings on the grounds that the settlement had been made and signed under duress, that new evidence had been uncovered, that falsified inland revenue affidavits and false orders had been filed and deposited in court and government offices. This court will express no views on these allegations as these are matters still to be litigated in other motions. It has not been shown that any of these matters are relevant to this motion, or these moving parties

 

The Applicable Law: Motion to strike out the Proceedings

In Fay v. Tegral Pipes and Others The High Court [2005] 2 IR 261 McCracken J. outlined the general jurisdiction of the court to strike out proceedings. He identified the two bases upon which such an application may be brought.

 

“The first is pursuant to the provisions of Order 19 Rule 28 of the Rules of the Superior Courts 1986 which reads:

“The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.

In addition to this provision the court has an inherent jurisdiction to stay, strike out or dismiss pleadings where no cause of action is disclosed or if the claim is frivolous or vexatious. This is explained by Costello J. in Barry v. Buckley [1981] I.R. 306 at p. 308 where he said:

 

“But apart from Order 19, the court has an inherent jurisdiction to stay proceedings and on applications made to exercise it, the court is not limited to the pleadings of the parties but is free to hear evidence on affidavit relating to the issues in the case: see Wylie’s Judicature Acts (1906) at pp. 34-37 and The Supreme Court Practice (1979) at para. 18/19/10. The principles on which the Court exercises this jurisdiction are well established. Basically a jurisdiction exists to ensure that an abuse of the process of the Courts does not take place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s claim must fail; per Buckley LJ in Goodson v. Grierson at p. 765 …”

That judge added

 

“While the words “frivolous and vexatious” are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming expensive and worrying process of being asked to defend a claim which cannot succeed”.

These latter observations of Costello J., specifically approved by the Supreme Court, appear particularly apposite in relation to the proceedings which are the subject matter of this notice of motion. In the light of the circumstances which have been outlined, and in particular the consent order, this court cannot but conclude that the instant proceedings by plenary summons which have been brought, (in the context of the other earlier sets of proceedings) are frivolous and vexatious. It has not been demonstrated that the first named plaintiff is even in a position to assert any cause of action against the moving parties in these proceedings as purchasers and in a situation where the first named plaintiff is not identified in law as a beneficiary. It has not been suggested that there are factual matters in dispute. It has not been suggested that there are issues which require legal interpretation between parties to this motion. Whatever may be the situation between Mr. McMahon and the other defendants (a matter yet to be determined) no basis has been established upon which it can be contended that the proceedings are other than vexatious.

 

Both by virtue of Order 19 Rule 28 and by virtue of the inherent jurisdiction the court would be entitled to strike out these proceedings and considers it must do so.

The Isaac Wunder Order

The second essential relief which is sought is in the nature of an “Isaac Wunder” order. The exercise of this jurisdiction is one which I am satisfied, should be exercised sparingly. Among features identified by Ó Caoimh J. in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 as justifying such an order, or militating against the vacating of such an order already granted are:-

 

1. The habitual or persistent institution of vexatious or frivolous proceedings against parties to earlier proceedings.
2. The earlier history of the matter, including whether proceedings have been brought without any reasonable ground, or have been brought habitually and persistently without reasonable ground.
3. The bringing up of actions to determine an issue already determined by a court of competent jurisdiction, when it is obvious that such action cannot succeed, and where such action would lead to no possible good or where no reasonable person could expect to obtain relief.
4. The initiation of an action for an improper purpose including the oppression of other parties by multifarious proceedings brought for the purposes other than the assertion of legitimate rights.
5. The rolling forward of issues into a subsequent action and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings.
6. A failure on the part of a person instituting legal proceedings to pay the costs of successful proceedings in the context of unsuccessful appeals from judicial decisions.

Prima facie a number of these factors may be present in the instant case. However the court will not at this point make such further order. To do so might have the effect of debarring the applicant entirely from dealing with motions which are presently before the court against other defendants and might constitute an inappropriate delimitation of his right to defend motions which are brought therein by other parties. The court will not therefore make a final order on this aspect of the application but will adjourn that motion pending the outcome of the other motions brought herein both by the plaintiff and by other defendants as moving parties.

Two Observations

I feel that it is important in this case to make two observations.

 

The matter before this court is a procedural motion. It is heard on affidavit. There is no scope, generally, in such a procedure for oral examination or cross examination. One must remember there are two sides to every case.

 

It is clear that the facts of this case have given rise to very deep feelings. The plaintiff is now unrepresented. He has discharged his legal advisors. He says other lawyers will not act for him.

 

He is being supported on each occasion he has attended court by a number of friends and neighbours. I am sure they will have his best interests at heart. There is a risk in any case that deep feelings may ultimately give rise to acts or conduct which are not in the interest of anyone. The plaintiff has already been committed to prison for contempt by order of the Circuit Court.

 

The plaintiff says he had an understanding with Peter Shevlin Junior. He says that on the basis of this understanding he took care of Mr. Shevlin and his farm. He acted as a neighbour and relative might, I am sure, without the expectation of future benefit.

 

These issues were litigated in the Circuit Court. Ultimately Mr. McMahon entered into a consent agreement before Fennelly J. in the High Court. The plaintiff did not act in accordance with that consent order. It was for that reason he was twice committed to prison for contempt but released after a short period.

 

I am sure that the question of a compromise in these proceedings has previously been considered. I think all parties should look at this issue again. But the situation can now be looked at only in the context of the orders of this court already made, unless these are set aside. This is said without prejudice to what may be said in the other motions by or on behalf of either party.

 

An honourable compromise in any case is far preferable to a futile stand on principle. That is the first observation. In any legal case there may arise questions of moral obligation as well as legal rights. That is the second. The estate is substantial.

 

In the circumstances I am prepared to request the Chairman of the Bar Council to nominate a mediator. I am conscious that in the instant case this might present particular difficulties. With goodwill these might be overcome. I will adjourn the matter for an appropriate short period in order to allow this to take place if the parties so request. I will hear submissions from both sides only the issue of the time to be allowed.

 

 

 

Mithell v Ireland Order 28

 

 

 

Murphy v. Times Newspapers Ltd.

[2000] IESC 39 Keane J

 

There remains the submission on behalf of the plaintiff that the defendants cannot rely on s.22 of the 1961 Act since it is not expressly pleaded in the defence. I am satisfied that the submission of the defendants on this issue is also correct. Under Order 19(3) of the Rules of the Superior Courts:-

 

_____________________ page break _____________________

 

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“Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved..”

 

25. That has been done in the present case and extensive particulars furnished in addition. The defendants are not required to plead matters of law which are well within the knowledge of the plaintiffs legal advisers.

 

 

26. I would dismiss the appeal.

 

National Education Welfare Board -v- Ryan & Ors [2007] IEHC 428 Clarke J

 

4 The Law

4.1 Counsel for IT Upgrade places reliance on a passage from the judgment of Barrington J. in Hanly v. Finnerty [1981] I.L.R.M. 198 in the following terms:-

“Undue influence is a plea similar to fraud and it appears to me that it would be quite unfair to require a party against whom a plea of undue influence is made to go into court without any inkling of the allegations of fact on which the plea of undue influence rests. Because of the seriousness of the plea counsel will not lightly put his name to a pleading containing a plea of undue influence so that his solicitor will usually have in his possession some allegations of fact which justify the raising of the plea or at least excuse the plea from being irresponsible.”

That passage is quoted by the authors of Delaney and McGrath on Civil Procedure in para. 5-38 which also notes, relying on Berkeley v. McHugh [1878] 12 I.L.T.R. 176 and Bula Limited v. Crowley (unreported, High Court, Murphy J. 10th June, 2005) at p. 50, that it has been a long and established practice of the courts to require allegations of fraud to be specifically pleaded.

4.2 Counsel for the Board does not dispute the general proposition that a claim alleging fraud must be pleaded specifically. However, counsel placed reliance on a line of authority commencing with Leitch v. Abbott [1886] 31 Ch.D. 374 where Bowen L.J. said the following:-

“There is here a general allegation of fraud, and the Plaintiff wants the discovery to enable him to prove his allegation. It may be that he will afterwards have to amend his pleadings, but to say that he must give details of the fraud in the first instance would be to reduce the right of discovery in cases of fraud to very narrow limits indeed. I do not, however, think that that case applies, for there is here a statement of the nature of the fraud alleged. The Plaintiff may hereafter have to condescend to particulars, but, in my opinion, it would be wrong to say that he is not entitled to have this discovery now, because he has not given full details of the fraud which he alleges. We may possibly have to decide to what extent the Defendant is obliged to go into all these matters, but, in my opinion, it would be wrong to say that the Court has a discretion to deprive the Plaintiff of discovery altogether, either until the trial of the action, or until he has given details of the fraud which he alleges. He wants the discovery in order to enable him to give those details, and to establish his right to relief at the trial. I think, therefore, that the Defendant must give a further answer to the interrogatories.”

4.3 North J., in Sachs v. Speilman [1887] 37 Ch. D. 295, having cited the judgement of Bowen L.J. which I have quoted, applied the same approach in the following terms:-

“The question now is not what is in issue between the parties. Nobody can say what that is until the defence is seen. That defence may admit that in all or in some of these transactions the allegations in the statement of claim are well founded. It may, on the other hand, of course, deny that they are so; but until I know what matters are in issue between the parties it is impossible for me to say that the plaintiff does not require further information; but it is not wanted to enable the defendant to put in his defence. Particulars by way of amendment cannot be given until after discovery, and I have ordered the summons to stand over until after the defence has been put in in order that I may know what the issues raised by the parties are. The general rule is that discovery is not allowed till after defence: but there are exceptions to that rule: and it follows from the two cases I have stated that if I held it necessary to require the plaintiff to give particulars before the defence is put in, I should also hold that this is one of the cases in which the plaintiff would have the right to have discovery before defence.

Then it is suggested by the notice of motion that the Defendants are embarrassed by the form in which this pleading is framed. But how can it be said that the Defendants are embarrassed by not knowing these details? The Plaintiff has told them in his statement of claim that he has not the means of giving these details. They, on the other hand, are the persons who carried through the transactions, and have in their possession the books containing the full accounts; therefore they have full knowledge and means of knowledge, and can shew precisely what the cases are, if any, in which they did do what the statement of claim alleges they did. I do not see how they can possibly be embarrassed by not obtaining from the Plaintiff the information they have in their own possession. Of course I can see well enough why they press for these particulars. If the Plaintiff were obliged to condescend upon particulars, and to specify the instances in which the Defendants have done what he charges them with, the result might be that from his imperfect knowledge he would not be able to point out in the particulars some cases in which they had actually done what he says they have done; and inasmuch as, after particulars were given, their defence would be addressed only to those points, the ignorance of the Plaintiff might relieve the Defendants from being held responsible as to certain matters with respect to which they are open to the charge contained in the statement of claim.”

4.4 More recently Hoffman J., in Arab Monetary Fund v. Hashim & Ors (No.2) [1990] 1 All E.R. 673, took the view that the plaintiff in that case was entitled to plead in general terms that a non fiduciary had actual or constructive knowledge of the fraudulent or dishonest breach of trust in respect of which it was sought to make him accountable. Hoffman J., went on to determine that, in the circumstances of that case, it was appropriate to defer particularisation of both allegations until after discovery provided that there was some evidence of conduct on which the plaintiff was entitled to plead a want of probity.

4.5 Each of those authorities bring into clear relief the issue which arises in this case. It is clear that, in the ordinary way, an entitlement to seek discovery or raise interrogatories only arises when the issues between the parties have become clear as a result of a defence being filed. As pointed out by Bowen L.J., in Leitch, if a plaintiff is not able to have the benefit of discovery before defining the precise parameters of his claim, it is likely, in cases of fraud or other clandestine activity, to place very great limits on the benefit of discovery. That that would be so is clear. Discovery (or interrogatories) is, quite properly, limited to materials or issues which arise on the pleadings. If the pleadings are narrowly drawn, then it follows that discovery or interrogatories will, likewise, be confined within the same narrow ambit. If a plaintiff who makes an allegation of fraud is required to give full and exhaustive particulars prior to defence (and thus prior to discovery or interrogatories) in a manner which necessarily narrows the case, then there is every chance that, in a genuine case of fraud, the perpetrator will escape having to make discovery in respect of aspects of the fraud because the plaintiff will not have been sufficiently aware of the details of those aspects of the fraud to plead them in an appropriate manner in advance. In those circumstances aspects of the fraud will be outside the case as originally pleaded and will not be caught by any order of discovery or interrogatories.

4.6 The other side of the coin, of course, requires that care be taken not to allow a party, by the mere invocation of an allegation of fraud, to become entitled to engage in a widespread trawl of the alleged fraudster’s confidential documentation in the hope of being able to make his case.

4.7 A balance between these two competing considerations needs to be struck. In my view the balance must be struck on a case by case basis but having regard to the following principles. Firstly no latitude should be given to a plaintiff who makes a bare allegation of fraud without going into some detail as to how it is alleged that the fraud took place and what the consequences of the alleged fraud are said to be. Where, however, a party, in its pleadings, specifies, in sufficient, albeit general, terms, the nature of the fraud contended together with specifying the alleged consequences thereof, and establishes a prima facie case to that effect, then such a party should not be required, prior to defence and thus prior to being able to rely on discovery and interrogatories, to narrow his claim in an unreasonable way by reference to his then state of knowledge. Once he passes the threshold of having alleged fraud in a sufficient manner to give the defendant a reasonable picture as to the fraud contended for, and establishes a prima facie case to that effect, the defendant should be required to put in his defence, submit to whatever discovery and interrogatories may be appropriate on the facts of the case, and then pursue more detailed particulars prior to trial.

4.8 This latter point must, of course, be subject to the caveat that the defendant must always be entitled to sufficient detail to enable him to plead in his defence. However, it is important to note that O. 19, r. 7(3) of the RSC provides that:-

“Particulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered.”

4.9 It is clear, therfore, that a defendant is entitled to have the claim sufficiently particularised to enable him to plead in any event.

4.10 The reason why I have taken the veiw which I have identifed in the next preceding paragraphs is that to do otherwise would, in my view, be to strike an inappropriate balance against the legitimate requirments of persons who can make out a stateable case in fraud. It is in the very nature of fraud (or other unconscionable wrongdoing) that the party who is on the receiving end will not have the means of knowing the precise extent of what has been done to them until they have obtained discovery. To require them to narrow their case prior to defence (and thus discovery) would be to create a classic catch 22. The case will be narrowed. Discovery will be directed only towards the case as narrowed. Undiscovered aspects of the fraud or the consequences of the fraud will, as a natural result, never be revealed. This would, in my view, be apt to lead to an unjust solution.

4.11 It seems to me that I should, therefore, approach this case on the basis of asking the following questions:-

1. Has the Board established a sufficient threshold so as to take it outside a case where there is a bald allegation of fraud?
2. If so, has the Board given sufficient particulars to enable IT Upgrade to plead by way of defence?
3. In all the circumstances of the case (including the extent to which the plaintiff may have established a prima facie case for the fraud alleged) is it appropriate to require any further particulars to be delivered in advance of the defence.

I propose to consider each of those questions in turn.

 

5. Application to facts of this case

5.1 This is not, in my view, a case where a mere or bald allegation of fraud is made. The Board has set out in considerable detail the payments which it alleges have been made by the defendants to its former I.T. manager. It has also set out, in some detail, the various ways in which it is suggested that the Board may have suffered by reason of the making of those payments (which, of course, it alleges were made as bribes or as secret commissions). The only matter which the Board has not addressed is as to the extent to which it will seek to bring individual transactions within the ambit of the various sub-paragraphs of paragraph 12 of the statement of claim.

5.2 I am, therefore, satisfied that the Board has gone a significant way beyond making a mere or bald allegation of fraud in this case. The defendants can be in no doubt as to the general nature of the accusation made. It is said (and of course this is hotly denied) that I.T. Upgrade procured favourable terms in one or other of the manners specified in paragraph 12 of the statement of claim by making illicit payments to a senior employee of the Board.

5.3 Secondly, it seems to me that there is nothing which could legitimately prevent I.T. Upgrade from filing its defence at this stage. I.T. Upgrade knows the allegations. If it is minded so to do, it can deny them. The only thing that it does not know with exact particularity is as to the precise transactions which the Board will ultimately allege give rise to a loss on the part of the Board under the various methods of potential loss which have been identified. It follows that the possible quantum of any such loss has equally not been specified. However, that information is not, in my view, necessary to enable an appropriate defence to put in. The only possible prejudice that might arise in relation to a defendant in a position such as I.T. Upgrade concerns the possibility that such a party might wish to put in a lodgement or might wish to make a specific admission that certain transactions did give rise to an appropriate adverse consequence from the Board’s prospective. So far as the making of a lodgement is concerned, it seems to me that any prejudice can be appropriately dealt with by indicating that it would, of course, necessarily follow from the court accepting the submissions of the Board in this case, that the Board would, in due course, be required, well in advance of trial, to furnish detailed particulars of the precise case which it wished to make after it had the benefit of discovery and interrogatories. It would also, it seems to me, follow that, within a reasonable period of receipt of such detailed particulars, I.T. Upgrade would be entitled, if it so wished, to make a lodgement without any adverse consequences.

5.4 Likewise if I.T. upgrade wishes to make any admissions at this stage in its defence then it does not seem to me that it is, in any way, prejudiced in so doing. Similarly, if any aspect of the case as ultimately particularised would justify an amendment to the defence, same can and should be permitted without adverse consequences. In all the circumstances I do not believe that the level of particularity with which this claim has been set out by the Board in its statement of claim creates any difficulty for I.T. upgrade in now filing its defence.

5.5 It, therefore, follows that I should go on to consider whether, in all the circumstances, it is appropriate to require the particulars sought to be delivered in advance of the filing of a defence.

5.6 In that context it is said on behalf of I.T. Upgrade that the Board has had the benefit of receiving a significant volume of documentation from I.T. Upgrade concerning relevant transactions with the Board. It is also said that the Board has had the benefit of having had a review conducted of those transactions by a number of relevant experts. On that basis it is contended that the Board must be aware of at least some of the transactions which it might wish to allege were tainted by reason of the contended for illicit payments. The Board, as I understand it, largely accepts the factual matters which I have just outlined. It does not deny but that it could give some particulars under the various headings sought by virtue of being in possession of the relevant documentation and reports. In those circumstances counsel for I.T. Upgrade suggests that there is no reason why the Board should not be required to give such particulars as it can at this stage, with the Board being entitled to give further particulars should additional materials come to its attention as a result of discovery or interrogatories which would entitle it to expand its claim.

5.7 However, it seems to me that such an approach would fall into the very difficulty identified in Leitch. If the Board is now to be required to specify the individual transactions or invoices which it claims to be tainted, then discovery and interrogatories will, necessarily, be confined only to those transactions. In those circumstances it is highly unlikely that any other materials (even if they exist) would come to light in the discovery or interrogatories process.

5.8 In addition it seems to me that the Board has established a prima facie case for its contentions. In so saying I would emphasise that it is wholly inappropriate for a court, at this stage, to express any the view as to the merits or otherwise of the case as pleaded other than to determine that the necessary threshold has been reached. On the affidavit evidence filed, I.T. Upgrade asserts that it was informed by the relevant senior official of the Board that separate invoices were to be raised and given directly to the official concerned in respect of aspects of the contract as a means of getting round public service limitations. It will ultimately be for the court at trial to decide whether it accepts such an explanation. However the fact that it is accepted that what, at a minimum, was a most unusual practice of making direct payments to a senior official of a public body as part of the overall contractual arrangements with that public body, did, in fact, occur, seems to me to put this case well beyond a standard of prima facie case.

6. Conclusions

6.1 I am, therefore, satisfied that this is an appropriate case to permit the plaintiff to defer giving any further particulars of its claim until after it has had the benefit of such discovery or interrogatories as might be agreed or directed by the court. I am satisfied that the pleading already in place in this case goes significantly beyond a mere assertion. I am satisfied that there is no prejudice in requiring the defendant to plead at this stage or, at a minimum, no prejudice which cannot be adequately dealt with by indicating that full particulars will have to be delivered well in advance of trial, and that the defendants will have the opportunity of making any appropriate amendments to their defence in the event that same should be justified by the particulars then delivered. Any such adjustment can, if appropriate, involve the making of a lodgement. In addition, I am satisfied that the Board has made out a prima facie case of fraud and that, having regard to those factors, the balance of justice does not require that any further particulars be delivered at this stage.

6.2 It follows that, in my view, the defendants must now file their defence but should be entitled to a reasonable extension of time within which to do so. I will hear counsel further on the precise order which I should make in that regard.

 

 

Keaney v Sullivan & Ors

[2007] IEHC 8 (16 January 2007) Finlay Geoghegan J

 

On the 24th April, 2006, at a further hearing of the directions motion on complaint from a number of the defendants in relation to the form of the statement of claim delivered Kelly J. ordered that: “the plaintiff be at liberty to deliver an amended statement of claim herein by close of business on Monday 8th May, 2006, the said statement of claim to be properly drafted, in the proper form and properly particularised.”

An amended statement of claim was delivered on the 8th May, 2006.

The defendants were further given liberty on the 24th April, 2006, to bring notices of motion for orders dismissing or striking out the proceedings within a period of two weeks from receipt of the amended statement of claim.

Pursuant to this liberty four separate notices of motion were issued on behalf of:

(1) The third, fourth, ninth, seventeenth and eighteenth defendants

(2) The eighth defendant

(3) The first defendant

(4) The tenth to sixteenth defendants.

In each of those notices of motion applications are made for orders striking out all or part of the plaintiff’s pleadings and/or proceedings against the applicant defendants pursuant to O. 19, rr. 27, 28 and/or the inherent jurisdiction of the court. The precise relief and grounds relied upon differ slightly between the notices of motion and to the extent necessary will be referred to below. All the notices of motion seek orders striking out all or part of the proceedings pursuant to the inherent jurisdiction of the court. Affidavits were sworn in support of those applications and replying affidavits from the plaintiff.

On the 3rd July, 2006, at the hearing of the directions motion Kelly J. being satisfied that the relevant affidavit evidence on the motions of the defendants was complete and that the relevant written legal submissions had been exchanged, fixed the hearing of the motions for the 25th July, 2006.

On the 24th July, 2006, the plaintiff, without leave of the court purported to deliver a further amended statement of claim. At the hearing on the 25th July, as these were motions to strike out all or part of the proceedings against the relevant defendants, it was accepted that the court should take into account the further proposed amendments in the statement of claim dated the 24th July, 2006, in determining the applications to strike out all or part of the pleadings. It is therefore by reference to that document hereinafter referred to as “the statement of claim” that these applications will be determined.

 

Application of Third, Fourth, Ninth, Seventeenth and Eighteenth Defendants

The third, fourth, ninth, seventeenth and eighteenth defendants are jointly represented and in their notice of motion seek orders striking out all or part of the amended statement of claim delivered on the 8th May, 2006, as against those defendants. They advance a number of distinct grounds relating to the multiple and differing claims. It is proposed firstly to consider the application for an order pursuant to the inherent jurisdiction of the court striking out almost all claims of fraud, deceit, misrepresentation and/or undue influence against those defendants by reason of the failure of the statement of claim to particularise the allegations as required by O. 19, r. 5(2).

Breach of Order 19 Rule 5(2)

Of these defendants, the primary defendant is the fourth defendant, Michael Nolan. Further the core of the plaintiff’s claim against Mr. Nolan appears to be based upon allegations of fraud, deceit, misrepresentation and/or undue influence.

It is on the basis of such allegations that the plaintiff seeks to set aside all agreements and deeds entered into both in 2000 and 2003 with the fourth named defendant.

1. 19, r. 5(2) of the Rules of the Superior Courts provides:

“ (2) In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.”

This express requirement of the Rules is in accordance with the long established practice of the courts to require allegations of fraud to be pleaded with particularity. Delaney and McGrath, Civil Procedure in the Superior Courts (2nd Ed.) summarise the position correctly in my view at para. 5.38:

“(b) Allegations of Fraud

5.38 The long established practice of the courts has been to require allegations of fraud to be pleaded with particularity. Rule 5(2) now provides that, in all cases alleging misrepresentation, fraud, breach of trust, wilful or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) must be set out in the pleadings. The rationale of this requirement was explained by Barrington J. in Hanly v. Finnerty in relation to a plea of undue influence as follows:

Undue influence is a plea similar to fraud and it appears to me that it would be quite unfair to require a party against whom a plea of undue influence is made to go into court without any inkling of the allegations of fact on which the plea of undue influence rests. Because of the seriousness of the plea counsel will not lightly put his name to a pleading containing a plea of undue influence so that his solicitor will usually have in his possession some allegations of fact which justify the raising of the plea or at least excuse the plea from being irresponsible.

5.39 Thus, a party is not only required to expressly plead fraud or misrepresentation etc., but he must also give full particulars of its nature and how it is alleged to have occurred. However, it should be noted that, given the difficulty of proving fraudulent intention, malice or any other condition of the mind (which is often a matter of inference to be drawn from the proven facts), it suffices to allege this as a fact without setting out the circumstances from which the same is to be inferred.”

The defendants also rely upon the pleading requirement as set out in Bullen and Leake (12th Ed.) 1975, in relation to the equivalent English rule where at pp 452-453 it states:

“The Statement of Claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrance v. Lord Norreys (1890) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy v. Garrett (1878) 7 Ch.D. 473 at 489). ‘General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice’

. . .

Particulars. Full particulars of any misrepresentation relied on must be given in the pleading (R.S.C., Ord. 18, r. 12 (1) (a)). The Statement of Claim must show the nature and extent of each alleged misrepresentation (Newport Dry Dock & Engineering Co. v. Paynter (1886) 34 Ch.D. 88) and it must contain particulars showing by whom and to whom it was made, and whether orally or in writing, and if in writing, identifying the relevant document (Seligmann v. Young [1884] W.N. 93). Where the plaintiff alleged that the entries made by the defendant in certain books were false, he was ordered in the first place to give particulars of entries which he alleged to be false, and subsequently to give further particulars showing in what respects each of these entries was false (Newport Dry Dock & Engineering Co. v. Paynter, ante); “all the accounts rendered to the plaintiff are untrue” did not comply with an order for further particulars of fraud (Harbord v. Monk (1878) 38 L.T. 411).

 

Moreover, the necessary particulars of the fraudulent intention relied on must also be contained in the pleading (R.S.C., Ord. 18, r. 12 (1) (b)), and accordingly, the pleadings must set out the facts, matters and circumstances relied on to show that the party charged had or was activated by a fraudulent intention.”

I am satisfied that the above is also a correct statement of the pleading requirements in this jurisdiction. The above special requirements in relation to the particulars required where there are pleas of fraud, misrepresentation, undue influence or deceit must also be considered in the context of the general rules as to what ought to be included in a statement of claim. This is well summarised in Delaney and McGrath (2nd Edition) at para. 5.74 to 5.75 where they state:

“5.74 The statement of claim must set out the plaintiff’s claim and the relief sought with clarity and particularity in accordance with the principles of pleading set out above. Thus, it should state specifically the relief which the plaintiff claims, either simply or in the alternative. It is important to note that a cause of action must be pleaded in the main body of the statement of claim and it will not be regarded as having been pleaded if it is merely mentioned in the prayer for relief at the end.

5.75 If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they should be stated, so far as possible, separately and distinctly. It should be noted that there is nothing to prevent the plaintiff setting up two or more separate claims and claiming relief in respect thereto in the alternative.”

Regretfully, it must be observed that notwithstanding that it is the third attempt to formulate properly and with appropriate particulars the plaintiff’s claims against the defendants herein, the statement of claim under consideration not only fails to particularise many allegations but also fails in many respects to set out with clarity the causes of action pleaded and reliefs sought against the defendants. The statement of claim has now 99 paragraphs but nevertheless it remains difficult in many instances to identify the distinct claims and causes of action sought to be pleaded and reliefs claimed in respect of the relevant causes of action.

The defendants’ application to strike out so much of the claim as alleges deceit, fraud, misrepresentation or undue influence by reason of the plaintiff’s failure to comply with O. 19, r. 5(2) is pursuant to the inherent jurisdiction of the court. It is not disputed on behalf of the plaintiff that the court has an inherent jurisdiction to strike out such claims by reason of failure to comply with O. 19, r. 5(2). As previously stated, the original complaint in relation to the lack of particularity was made before the court on a hearing of the directions motion in the commercial list on 24 April 2006. The plaintiff was then given an opportunity to deliver an amended statement of claim and it was specifically ordered that it be in proper form and particularised. Such statement of claim was delivered on the 8th May, 2006, in purported compliance with the order to particularise the claims. The plaintiff having had and considered the full legal submissions of the defendants in these motions has attempted to deliver yet a further amended statement of claim dated the 24th July, 2006. Accordingly it appears that if the court concludes that the claims are not now particularised as required by O. 19, r. 5(2) that the time has come when the court must strike out the relevant claims of the plaintiff herein.

The claims against the fourth defendant which allege fraud, deceit, misrepresentation and undue influence in the statement of claim and which it is contended are not particularised as required by O. 19 r. 5(2) may be summarised as follows:

1. The claims in paragraphs 25, 26 and 28 of the statement of claim upon the basis of which the plaintiff seeks to have the heads of agreement of 2000 and deed of assignment of the premises known as Scotts Buildings of the 20th October, 2000, set aside or declared void.
2. The claims made in paragraph 51; and
3. The claims made in paragraphs 62 to 71 inclusive on the basis of which the plaintiff seeks to have set aside or declared void all the agreements, deeds and share transfers entered into in July, 2003.

I have considered carefully each of the above sets of pleas and concluded that none satisfy the requirements of O. 19, r. 5(2).

The allegations made in paragraphs 25, 26 and 28 contain no particulars and are simply general allegations.

Paragraph 51 states at the outset:

“The plaintiff claims deceit, conspiracy, fraud, forgery of documents, breach of fiduciary duty, negligence and breach of contract against the fourth named defendant;-”

There then follows a series of individual paragraphs under roman numerals dealing with separate matters, the majority of which relate to the running of the Titanic Bar (and certain of which are objected to as not disclosing a cause of action on other grounds referred to below).

The plaintiff does not expressly seek to set aside any document based on these allegations. The plaintiff makes no express claim of any loss or damage by reason of any of the matters alleged therein.

Even if the court were to imply an allegation of loss and damage suffered by the plaintiff by reason of the matters pleaded and assume that the plaintiff may be seeking to pursue a claim for damages for the tort of deceit, paragraph 51 does not contain any of the essential elements of the tort of deceit which must be pleaded and proved. Bullen & Leach (12th Edition 1975) at p. 450 sets those out as follows:

“In order to sustain the common law action of deceit, the following facts must be established, i.e. they must be pleaded and proved, namely:

(1) there must be a representation of fact made by words or by conduct, and mere silence is not enough;

(2) the representation must be made with knowledge that it is false, i.e. it must be wilfully false or at least made in the absence of any genuine belief that it is true;

(3) the representation must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in a manner which resulted in damage to him;

(4) it must be proved that the plaintiff acted upon the false statement; and

(5) it must be proved that the plaintiff has sustained damage by so doing (see Bradford Third Equitable Benefit Building Society v. Borders [1941] 2 All E.R.. 205, per Viscount Maugham at 211).”

Insofar as any of the subparagraphs of paragraph 51 may be intended as supporting the claims made to set aside the 2000 documents or 2003 documents they do not contain any additional particulars which would satisfy the requirements of O. 19, r. 5(2).

Reading paragraphs 62 to 71 of the statement of claim in a manner most favourable to the plaintiff they seek to allege that the plaintiff was wrongfully induced, to enter into a series of transactions in July, 2003 and a deed of assignment dated the 30th September, 2004, by reason of alleged fraudulent and/or negligent misrepresentations of the fourth defendant, his servants or agents.

Particulars of the alleged fraudulent or negligent misrepresentation are set out in paragraphs 64 to 71 inclusive in the following terms:

“64. Representing that draft audited financial statements of the Fifth Named Defendant (for the Titanic Bar) for 15 months to 31 December 2001 were a true and accurate statement of the accounts and affairs of that Company when in fact such accounts were not true or accurate,

(a) They failed to account for all the income of the Company.

(b) Same concealed monies that were misappropriated.

(c) Same misinterpreted and/or misrepresented expenditure.

(d) They misstated the purported Director’s loan attributable to the Fourth Named Defendant, misstated the true reason and nature of financial losses, and portrayed serious financial losses and misstated that the Titanic Bar was not capable of recovery or profitability.[sic]

without disclosing, inter alia, long term and wholesale illegality, irregularity, breaches of company law and the conversion of funds/takings to the account of the Fourth Named Defendant herein.

65. Representing that the Plaintiff and Fourth Named Defendant had joint personal indebtedness to AIB plc, Midleton totalling €1,265,719.81 as of 5th February, 2003 (as per letter of that date) from the said Bank calling for payment, whereas in fact this was misstated due to the misappropriation of Company income and fraudulent trading, payment of non Company debts from Company monies which Company monies had in turn been misappropriated.
66. Representing that the Titanic Bar was not trading and could not trade profitably, when in fact it was trading profitably or alternatively was capable of trading profitably if run in a regular and legal manner.

 

67. Representing to the accountant Mr. David Hyland engaged by the Plaintiff to investigate the affairs of the Company and to the Plaintiff that management accounts for the Titanic Bar were true and accurate and regular when they were not.
68. Failure to furnish bank statements as appropriate despite request [sic] by the Plaintiff.
69. Representing to the said Mr. David Hyland (an accountant on behalf of the Plaintiff) at meetings on 14th October 2002, 5th November 2002 and 15th November 2002 that all the information and documents sought by Mr. Hyland at those meetings and in writing and by fax and phone would be made available to him, when the Third and/or Fourth Named Defendant their servants or agents had no intention(s) of providing full information on the accounts and affairs of the Titanic Bar.

70.

1. Concealing from the Plaintiff and/or his accountant Mr Hyland and/or his solicitor, and/or remaining silent in relation to, the full extent and detail of the irregularities and deceit in relation to the trading of the Company, and related companies controlled by the Fourth Named Defendant.
2. Concealing banking arrangements hereinbefore pleaded when the Fourth Named Defendant his servants or agents including the Third Named Defendant and AIB PLC, Midleton or one or more of them owed a duty, fiduciary or otherwise, to the Plaintiff of full disclosure in all the circumstances.
3. Concealing and breaching fiduciary duty, in particular where the Plaintiff and Fourth Named defendant were co-directors, and the Third Named Defendant (accountant) held himself out as director and manager, and where the Plaintiff required honesty from his co-directors to assess the true affairs of the business and the true value of his assets and shareholding in 2003.
4. By letter dated 16th May 2003 from Messrs O’Flynn Exhams Solicitors for the Fourth Named Defendant the said solicitors in writing purportedly deny “mismanagement and impropriety” of any sort in relation to the management of the affairs of the Company/the Titanic Bar. This statement on behalf of the Fourth Named Defendant was untrue but induced the Plaintiff to believe that the Company had been legally and properly managed whilst being unprofitable in the public house trade, and induced the Plaintiff, inter alia, to enter into the purported Heads of Agreement of 2003 and to release his 49% shareholding (also challenged in title) and his remaining 50% interest in the Scotts Building, and to execute further documentation on 24th July 2003.”

In accordance with the principles set out above the particulars in the statement of claim must include the nature and extent of each alleged misrepresentation. The particulars must also show by whom and to whom the alleged representations were made and whether orally or in writing, and, if in writing identify the relevant document.

Whilst certain of the above paragraphs identify the matters to which it is alleged the misrepresentation related, there is a failure to identify the nature or extent of any of the alleged misrepresentations. In many there is also a failure to identify the persons by whom or to whom they are alleged to have been made and how made (whether orally or in writing).

Accordingly I have concluded that the fourth defendant is entitled to an order striking all of the above claims which are all the claims that allege deceit, fraud, misrepresentation or undue influence against him save to the extent that such claims are included in the claims in paragraphs 73 and 74 referred to below. No objection was rightly made on his behalf to the particulars given in respect of those claims.

 

Claims of Fraud and Deceit Against the Third Named Defendant

The plaintiff also makes allegations of fraud and deceit against the third defendant in paragraphs 41, 44, 45 and 48 in the statement of claim. I have likewise formed the view that such allegations are not particularised as required by O.19, r. 5(2). I have formed this view independently of whether the matters pleaded constitute a cause of action against the third defendant.

Other Grounds

Counsel for these defendants submit that all the remaining claims against these defendants should now be struck out either pursuant to O. 19, rr. 27 or 28 or pursuant to the inherent jurisdiction of the court on one or more of the following grounds:

(i) They disclose no reasonable cause of action against these defendants; and/or

(ii) They are frivolous or vexatious; and/or

(iii) They must fail or are unsustainable as that term has been used by the Supreme Court in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425 and O’Neill v. Ryan [1993] ILRM 557.

The first two grounds need no elaboration. The nature of the third ground is clearly set out by Blayney J. in O’Neill v. Ryan where in relation to a similar ground advanced in that case he states at p. 561:

“The second ground invokes an aspect of the inherent jurisdiction of the court which was defined as follows recently by Costello J. in D.K. v. A.K., High Court, 1990 No. 5306P, 2 October 1992:

The principles on which the court will exercise its inherent jurisdiction to strike out a plaintiff’s action can be shortly stated. Basically the jurisdiction exists to ensure that an abuse of the court’s process does not take place. If it is established by satisfactory evidence that the proceedings are frivolous or vexatious or if it is clear that the plaintiff’s claim must fail then the court may stay the action. But it will only exercise this jurisdiction sparingly and in clear cases (Barry v. Buckley [1981] IR 306: Sun Fat Chan v. Osseous Ltd [1992] 1 IR 425.

Having expressed the view that the plaintiff’s claims there were neither frivolous nor vexatious Costello J went on to say:

What I am required to consider therefore is whether any of the claims against all or any of the defendants is so clearly unsustainable that I should strike it out.

I am satisfied that this is a correct statement of the law.”

 

The requirement that the High Court only exercise this jurisdiction sparingly derives from the caution expressed by McCarthy J. in Sun Fat Chan v. Osseous Limited [1992] 1 I.R. 425 where at pp 428-429 he stated:

“By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed.

 

Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought.

 

Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigour.”

I now propose considering the remaining claims pleaded against these defendants in accordance with the above principles. By reason of the nature of the pleading there is some difficulty in differentiating and identifying claims. As this is an application to strike out I have attempted to do so in a manner most lenient to the plaintiff. However it also has to be recalled as set out above the purpose of this jurisdiction is to prevent an abuse of process. It would be such an abuse of process to require 18 defendants to defend proceedings with very many serious allegations unless those allegations constitute identifiable causes of action pleaded against the relevant defendant and are not ones which are either unsustainable or must fail.

Having regard to the claims which I have already determined should be struck out for failure to particularise the allegations of deceit, fraud etc. the only remaining claim upon the basis of which the plaintiff seeks to set aside any transactions or documents with the fourth and/or eighteenth defendants are those contained in paragraphs 73 and 74 of the statement of claim. Those claims relate to two distinct matters:

 

 

 

O M. (L) v. O M. (N.)

[2002] IEHC 89 (30 July 2002)]

 

Murphy J

 

.2                   SUBMISSIONS ON CASE LAW

 

The Applicant submitted that Tesco Ireland Ltd. -v- McGrath and Anor. Unreported decision of Morris P. of the 14th June, 1999 applies.  In that case proceedings under Family Law Reform Act, 1998 between the first named Defendant, as part vendor and his wife were in existence.  (That Section 35 of the Family Law Act, 1995 is equivalent to Section 35 of the Family Law (Divorce) Act, 1996).  The purchaser’s solicitor had been informed that an interim maintenance Order had been made.  In those circumstances Morris P. held at page 14:

 

“In these circumstances in my view it is clear beyond doubt that claims under the family law legislation were being actively pursued by the first named vendor’s wife and the purchasers would have been aware that under the provisions of Section 35 of the 1995 Act there was a realistic danger that the Court would presume, unless the contrary were shown, that the disposition was for the purpose of defeating this matrimonial claim”.

 

 

 

“I am satisfied that if the purchasers were to rely upon the statutory declaration … they could not establish that they had acted in good faith and without notice on the part of the vendor to defeat the potential claim”.

 

 

 

8. RESPONDENT’S SUBMISSIONS.

 

8.1                   Ms. Clissman S.C. submitted that the Court had no jurisdiction to make the Order required under paragraph 3 of the Notice of Motion.  The section safeguards the other spouse.  There is a presumption that any alienation in the circumstances of proceedings under the Act is reviewable.  The onus of proof shifts to the Applicant: there is no case made by the Respondent that there is a wrongful disposition.

 

Section 35 of the 1995 Act is equivalent to Section 37 of the Family Law (Divorce) Act, 1996.

 

The Tesco -v- McGrath case referred to applies to a particular disposition and not a general declaration that future dispositions would not be reviewable.

 

In MK -v- JP, (Unreported decision of the Supreme Court dated the 6th November, 2001 at page 16) it was held that Section 20 (1) of the 1996 Act does not allow an Applicant the relief sought under paragraph 3 of the Notice of Motion.  Subsection 5 of that section is limited to the financial provisions of Sections 13 to 18 and amendments thereto.

 

Under the terms of the settlement once the Tallaght agreement is implemented maintenance will cease.  In any event the valuation as per the agreement of the 2nd March, 2002 relates to a put and call in relation to valuation where there has been no development to part of the site.

 

8.2                   In any event it is not possible to have such a claim as is sought.  The provisions do not allow a clean break (see MK -v- JP page 16):

 

“The concept of a single capital payment to the wife to meet her “reasonable requirements” for the remainder of her life have never in fact formed a part of Irish family law.  There are two main reasons for this.  Firstly, such a capital payment is inevitably a part of a “clean break” settlement in divorce proceedings.  In this jurisdiction the legislature has, in the Family Law (Divorce) Act, 1996, laid down a system of law where a “clean break” solution is neither permissible nor possible.  Secondly, the approach of the Irish Courts, in accordance with both Articles 41.2 of the Constitution and the statutory guidelines, has been to give full credit to a wife’s contribution to her work in the home and as a mother of her children.  (See, for example, JD -v- DD (1997) 3 IR 64).  In this jurisdiction the overriding requirement of a fair outcome is governed by Section 20 (5) of the 1996 Act:- “The Court shall not make an Order under a provision referred to in subsection (1) unless it would be in the interests of justice to do so”.

 

 

 

8.3                   In relation to the implementation of the commercial agreement, counsel submits, the information given is not up to date.  There is no point in having a meeting with the Applicant’s accountants before the accounts were prepared as these are the basic tools for such a meeting.

 

8.4                   The application for the declaration sought can not apply to the business transactions of companies in which he has an interest.  The company has no personal obligation.

 

In relation to the Respondent’s counterclaim the assets of KPL are not included.  However there is an obligation to fund the settlement made under sections 13 to 18 and, accordingly, all assets are relevant.

 

Moreover, the determination of this Motion as a preliminary issue will not shorten the substantive hearing.  Rather it could undermine the Respondent’s position.

 

8.5                   Difficult questions of law are involved arising out of the construction of the legislation and should not be dealt with by way of preliminary motion – see Blythe -v- Attorney General (1934) IR 266 where the Court struck out a motion that the plaintiff’s statement of claim be struck out on the grounds that it disclosed no cause of action and was frivolous and vexatious.  That case related to the Plaintiff’s application for directions that, as members of the political organisation known as “United Ireland” (otherwise Fine Gael) that they had a right to form a subordinate association known as the “League of Youth”.

 

While the Applicant has said that it is not pursuing the first and second claim in the Notice of Motion the Respondent submits that Blythe applies to the seeking of a declaration that the disposal by the Applicant of any properties were not renewable dispositions.

 

9. APPLICANT’S REPLY

 

The relief sought is not a preliminary issue.  The Applicant has absolute entitlement to come to the Court to seek its inherent jurisdiction.  He conceded that any Order would exclude all assets of the KPL Partnership.

 

10. DECISION

 

10.1                 The net issue which remains for the Court relates to the disposal of the Applicant’s assets, excluding the assets of KPL Partnership.  It does not relate to the disposal of assets by the several companies in which the Applicant has an interest.  It is conceded that the companies and their assets as distinct from the ownership and valuation of the shares in those companies are not amenable to family legislation.  The shares in those companies clearly constitute personal property of the Applicant the disposition of which are encompassed by Section 37 (1) of the Family Law (Divorce) Act, 1996.

 

Indeed, the Applicant’s case was based on the necessity to dispose of properties which have been developed by the companies in which he has an interest.  It is clear that these cannot be reviewable dispositions within the meaning of the Act.

 

Insofar as the relief sought applies to personal assets (other than the Applicant’s personal share in the KPL Partnership) it does not seem to the Court appropriate to make such a declaration where no disposition in relation thereto is in contemplation.

 

10.2                 Moreover, in so far as the declaration sought applies to any properties that such a declaration is too general in nature.

 

The Applicant applied for relief under the Act.

 

It is clear that Section 37 limits the rights of spouses insofar as the disposition of their property is concerned once proceedings have issued in relation to the Act.

 

10.3                 In any event, where problems do arise with regard to the disposition of land, which are caught by requisition number 24 to 26 of the current (2001 edition) of the Law Society Objections and Requisitions, these are dealt with from a conveyancing point of view by way of declaration similar to that referred to and exhibited in the replying Affidavit.

 

Such a declaration refers to family proceedings which are still extant and then  refers to the full advice and solicitors explanation regarding the disposal which is followed by an acknowledgement that the disposal is not a disposal for the purpose of defeating a claim for relief as defined by Section 35 of the Family Law Act, 1995 or Section 30 of the Family Law (Divorce) Act, 1996.

 

This would appear to be standard conveyancing practice.

 

10.4                 In the circumstances the Application stands dismissed.