Amend & Strike Out

Table of Contents

Cases

Aer Rianta International CPT v. Walsh Western International Ltd;

MURPHY J (Barrington J concurring) delivered his judgment on 28 November 1996 saying:

This is an appeal from the decision of Johnson J given on 18 November 1996 refusing the application on behalf of the defendant/appellant for liberty to amend its defence herein.

In these proceedings, which were instituted on 2 December 1994, the plaintiff claims damages for breach of a contract under which it is alleged that the above named defendant, Walsh Western International Ltd, (hereinafter referred to as ‘the Irish company’ ) agreed to transport certain goods to Moscow for the plaintiff. It is contended that the contract incorporated the provisions of the Convention on the Contract for the International Carriage of Goods by Road (CMR) which was enacted into domestic law by the International Carriage of Goods by Road Act 1990 . It is further contended that the goods were entrusted to the Irish company on 25 February 1994. It is common case that the goods were stolen from a warehouse or compound in Holland during the weekend of 26/27 February 1994.

In its defence delivered on 14 July 1995 by the then solicitors on behalf of the defendant the Irish company pleaded as follows:

It is admitted that by a series of consignment notes bearing serial numbers NL235598, NL235599, NL235597, NL2355600 and NL235602, the defendant, as carrier agreed to transport a consignment of cigarettes, electrical goods and perfume on behalf of the plaintiff to Moscow.

The defence went on to deny that the contract between the parties was subject to or governed by the CMR or that the Irish company had received the consignment of goods or that they were in its possession at the weekend of 26/27 February 1994.

In July 1996 a notice of change of solicitor was filed and Messrs Whitney Moore and Keller came on record as solicitors on behalf of the Irish company. Also in July 1996, counsel instructed by Messrs Whitney Moore and Keller informed the court that an application would be brought for liberty to amend the defence. A notice of motion for that purpose was issued on 11 September 1996 and the application was heard and determined by Johnson J on 18 November 1996.

The substantive amendment sought by the Irish company is radical in its effect. Liberty is sought to replace the admission of the contractual relationship between the plaintiff and the Irish company with an express denial thereof and the proposed amendment to paragraph 1 of the defence then goes on to provide as follows:

Without prejudice to the foregoing, the defendant says that any arrangement made by the plaintiff in relation to the said consignment was made with Walsh Western BV and not with the defendant.

In opposing the application for this radical amendment the plaintiff made the arguments following:

(1) The plaintiff is, or may be barred, by article 32 of the CMR from instituting proceedings against the Dutch company at this stage.

(2) The admission that the Irish company had entered into the relevant contract with the plaintiff was expressed in clear and unambiguous terms in the defence delivered on 14 July 1995 and for a period of at least 12 months no indication was given by the defendant that this did not represent the case which it proposed to make.

(3) There is a substantial body of evidence emanating from the Irish company itself that it was that company and not Walsh Western BV (‘the Dutch company’ ) which was the contracting party.

(4) No witness gave evidence on behalf of the Irish company to explain why the defence as delivered failed, and failed so comprehensively, to plead the defence which the Irish company now seeks to raise.

(5) In the event of the amendment being allowed that it would be impossible or at any rate impracticable for the parties to be ready for the hearing of the case on the date allocated therefor, namely, 17 December 1996.

Whilst the argument originally made with regard to the prejudice to the plaintiff as a result of its claim against the Dutch company being barred may seem crucial that is not the case. The time limit for bringing proceedings against the Dutch company would appear to have expired before the Irish company delivered its defence so that the admission contained therein could not have prejudiced the plaintiff in relation to the institution of proceedings against any other party. Indeed it is clear that this was not a factor on which the plaintiff ultimately relied and it is not referred to in the note of the judgment delivered by the learned judge of the High Court.

From the note agreed by counsel of the ex tempore judgment of Johnson J it appears that the trial judge reached the following conclusions:

(1) In the present case there was absolutely no explanation from the defendant’s former solicitors as to why the admission that the defendant was the carrier had been made.

(2) That it was uncontroverted that the consignment notes as issued to the plaintiff by the Irish company identified the Irish company and not the Dutch company as being the carrier and

(3) That the opinion from the Irish company’s Dutch lawyers stated that the Irish company and not the Dutch company was the carrier.

In my view the second and third of these conclusions are not of decisive importance on an application for liberty to amend the defence. These are matters which would be considered more properly on the trial of the action if and when liberty to amend is granted. The crucial issue is that raised by the first conclusion which reflects the views expressed by this Court in McFadden v. Dundalk and Dowdallshill Coursing Club Ltd Supreme Court 1994 No. 81, 22 April 1994 . However before considering the narrow but important point authoritatively decided in the McFadden case it may be helpful to consider the general principles applicable on an application for leave to amend pleadings which are very fully set out in the judgment of Flood J in Palamos Properties Ltd v. Brooks High Court 1987 No. 1603P, 11 January 1995 . Any analysis of the relevant law must commence with O. 28 r.1 of the Rules of the Superior Courts which provides as follows:

The court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Whilst the word ‘may’ indicates the discretion available to the court the understandable requirement of the rule is to ensure the determination of ‘the real questions in controversy between the parties’ .

How the court exercises its discretion was summarised in the case (referred to in the judgment of Flood J) of Crooper v. Smith (1883) 26 Ch D 700 at pp. 710–711 as follows:

… it is a well established principle that the object of the courts is to decide the rights of the parties, not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights …, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace …. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision on the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.

In Ketteman v. Hansel Properties Ltd [1987] AC 189 Lord Keith of Kinkel explained the nature of an injury to one party resulting from an amendment to pleadings that would render liberty in that behalf an injustice to the other party. He explained the position (at p. 203 of the report) as follows:

The sort of injury which is here in contemplation is something which places the other party in a worse position from the point of view of presentation of his case than he would have been in if his opponent had pleaded the subject-matter of the proposed amendment at the proper time. If he would suffer no prejudice from that point of view, then an award of costs is sufficient to prevent him from suffering injury and the amendment should be allowed. It is not a relevant type of prejudice that allowance of the amendment will or may deprive him of a success which he would achieve if the amendment were not to be allowed . (emphasis added)

Lord Keith of Kinkel was in fact delivering a minority judgment on the appeal to the House of Lords on the issue as to whether the defendants should have been given leave to amend their defence so as to plead the Statute of Limitations at a time when the proceedings had reached the stage at which counsel were making their closing address to the court. Nevertheless I do not doubt that the general observations of Lord Keith aforesaid represented the views of the House of Lords. Indeed it is inescapable that every amendment to a defence is intended to raise, and presumably will raise, further obstacles for a plaintiff.

In the present case it would seem that the real and virtually only controversy between the parties is whether or not the contracting party was the Irish company or the Dutch company. In my view the defendant should be permitted to raise that defence. The infirmities in that defence which the solicitor on behalf of the plaintiff underscored in her affidavit and to which the learned trial judge adverted, will be explored at the trial and no doubt in the context that this particular defence was not incorporated in the pleadings as originally delivered.

The possible loss of the date fixed for the trial would be regrettable but I would anticipate that the President of the High Court or the judge of the High Court for the time being dealing with such matters would ensure that this case was, in the circumstances, afforded the earliest practicable date for hearing.

In the same context the question of costs or expenses arising directly or indirectly from any amendment would not be a ground of prejudice to the plaintiff as all such outlay would have to be made good to the plaintiff as a term of any order to be granted.

In the McFadden case the Chief Justice drew attention to the fact that ‘No explanation was given on any affidavit as to why the matter was not adverted to or why it was not in the original defence or why there was not any application made before the time when it was.’

Understandably the plaintiff herein relies strongly on that observation.

Nevertheless there are significant distinctions between the McFadden case and the instant case. Those distinctions include the following:

(1) The defence in the McFadden case remained unamended for three years whereas in the present case it was indicated that an application would be made to amend the defence one year after it had been delivered.

(2) The application to amend in the McFadden case was brought three days before the date of the adjourned hearing. In the present case the application was initiated three months before the date fixed for hearing.

(3) Apparently in the Dundalk case no explanation at all was given as to the reason for the failure as to why the proposed defence had not been adverted to or incorporated in the original pleading. In the present case Mr Patrick Burke has sworn that the Irish company did not instruct its former legal advisers to make the admission which it now seeks to reverse and furthermore that that admission was contrary to and at odds with the facts of the case. Mr Burke went on to say that he was satisfied that the admission was made by reason of ‘error or inadvertence on the part of the defendant’s former legal advisers’ .

If the reason for the failure to plead the defence correctly is as Mr Burke says it is — and needless to say I express no view on the allegation — then it would be understandable that the former solicitors to the Irish company would be unwilling or at least reluctant to make the admission which would be implicit in the explanation as to how the error occurred. In the present circumstances it seems to me that all the defendant can do is explain what instructions it gave to its solicitor: show its dissatisfaction with the course which he adopted and apply as quickly as possible for an amendment after the error — if that is what it was — was discovered. On the face of it it seems to have met those requirements and I believe that justice requires that the amendment be allowed.

If justice requires that the amendment be allowed, it likewise requires that all costs and expenses caused thereby should be borne by the Irish company and that all ancillary orders should be made to ensure, as far as practicable, that the plaintiff will obtain a speedy trial of its claim.

I would allow the appeal.

O’FLAHERTY J: This is an appeal from the judgment and order of the High Court (Johnson J) of 18 November 1996, refusing the defendant’s application to amend the defence filed on its behalf.

The following is a synopsis of the background to the case. The plaintiff’s claim is for damages arising out of the theft of a consignment of its goods which were being transported from Holland to Moscow. It appears that the theft took place on or about 26/27 February 1994, whilst the goods were being stored at a compound owned by Messrs Hijsterkamp at Oldenzall, Holland.

The plaintiff’s case is that the contract for the carriage of the goods was governed by the Convention on the Contract for the International Carriage of Goods (‘CMR’ ) and that the carrier was indeed the defendant.

Support for that belief was forthcoming from an opinion of 3 November 1994, provided by a Dutch firm of lawyers, Schaap & Partners, to the defendant’s previous solicitors and a copy of which was furnished to the plaintiff’s solicitors wherein it was stated as follows:

Liability of the carrier under the CMR Convention

Although neither Walsh Western International Ltd nor Walsh Western BV have in actual fact been the carriers of the stolen consignment, Walsh Western International Ltd must probably be deemed to have been the carrier. Walsh Western International Ltd’s name is mentioned in the relevant consignment notes as the carrier. The consignment notes shall be prima facie evidence of the making of the contract of carriage although proof to the contrary is allowed. Therefore, under the contract of carriage the principal, Aer Rianta International CPT, has probably or possibly title to sue either Walsh Western International Ltd and/or Heisterkamp Transport BV and if Walsh Western International Ltd is sued it can start third party proceedings against Heisterkamp Transport BV.

A plenary summons claiming the amount allegedly due was issued on 2 December 1994, followed by a statement of claim delivered on 31 January 1995. In its defence delivered on 14 July 1995, by the defendant’s previous solicitors, paragraph 1 contained an admission that the defendant was the carrier of the consignment in question.

In a notice of motion dated 11 September last, the defendant sought leave to amend its defence by withdrawing that admission and to be allowed plead that, in effect, a sister company Walsh Western BV were the carriers. The learned High Court judge refused leave. He gave as his reasons:

(1) He pointed to the lack of any explanation from the defendant’s former solicitors as to why the admission that the defendant was the carrier had been made and he considered the absence of an affidavit from the former solicitors was significant. He said that he was following his own decision, as approved by this Court, in McFadden v. Dundalk and Dowdallshill Coursing Club Ltd Supreme Court 1994 No. 81, 22 April 1994 .

(2) It was uncontroverted that the consignment notes as issued to the plaintiff by the Walsh Western Group identified the defendant and not Walsh Western BV as being the carrier.

(3) The opinion from the defendant’s Dutch lawyers clearly stated that the defendant and not Walsh Western BV was the carrier. This opinion had induced the plaintiff to conclude that the defendant was in fact the carrier.

Therefore, in the exercise of his discretion, he concluded that leave to amend should not be granted.

Before us, counsel for the defendant has argued that it was unfair of the judge to expect that there should be an affidavit forthcoming from the defendant’s former solicitors since that would require them to admit to some form of negligence. He said that while it was uncontroverted that the consignment notes were issued by the defendant, that only constituted prima facie evidence and, similarly, the opinion from the Dutch lawyers was not conclusive one way or the other.

In the course of an affidavit sworn by Patrick Burke, a former director of the defendant company, the following points were made. He says, in the first instance, that the admission in the defence was made prior to the defendant instructing its present legal advisers. He says that the defendant did not instruct its former legal advisers to make the admission and that the admission is contrary to and at odds with the facts of the case. He claims that the admission was made by reason of error or inadvertence on the part of the defendant’s former legal advisers. While in January 1991, the defendant became involved in the transportation of goods overland to Russia on behalf of the plaintiff, since 1992 the transportation service had been provided by Walsh Western BV and not by the defendant. He avers:

By that time the defendant had in effect dropped out of the equation and this reality received formal recognition in March 1992, when the entire administration for the transportation of the plaintiff’s goods to Russia was, in consultation with the plaintiff, transferred by the defendant to Walsh Western BV.

His explanation for the appearance of the defendant as the carrier of the goods on the consignment notes is as follows:

I say that its name appears as aforesaid by reason only of the fact that Walsh Western BV failed to alter the software package transferred to it by the defendant in March 1992, which said software was originally developed for the defendant in 1991.

Mr Burke goes on to claim that the incorrectness of the admission was only brought to the defendant’s attention in June 1996, after the defendant’s former solicitors’ file in the matter was passed to the defendant’s present legal advisers.

In July 1996, a date was fixed for the hearing of the case in the High Court, which date is 17 December next. We have been told by counsel for the defendant that it was made clear at the call-over hearing in July that an amendment to the defence was to be applied for and the court was also told that there was some outstanding question of discovery to be resolved.

For the plaintiff, it is urged that the admission as to the identity of the carrier of the goods was made as far back as July 1995; therefore, it is difficult to credit that during the intervening time (until June/July 1996) nobody from the defendant company at any time had sight of the defence. An amendment of the defence at this stage would result in the plaintiff losing the trial date which has been fixed for 17 December. If the defendant is to succeed in having its amendments allowed, the plaintiff very likely would be left with no alternative but to apply to have Walsh Western BV joined as a co-defendant in the proceedings. However, there is a further point which is that if Walsh Western BV are brought in and made liable it has a time bar defence because Article 32 of the CMR specifies that the period of limitation for an action arising out of carriage under the CMR is one year.

Counsel for the defendant counters these submissions by saying that the loss of a trial date can be compensated by an award of interest (the court rate of interest being quite generous nowadays) on top of any damages to be recovered; as regards the time bar defence, he makes the point that when the defence was delivered the time limit had expired in any event.

I must say that I find the defendant’s application implausible from beginning to end. To deal with the time bar point first, it is clear that in November 1994, within the limitation period, the plaintiff’s advisers were furnished with a copy of the opinion of the Dutch lawyers that the defendant most likely would be held to be the carrier. This was calculated to lead to the belief that the defendant as sued was the proper one. The loss of a trial date is important, too, and is not to be put to one side lightly by saying that it can be met with an award of interest. But I go further and say this much: presumably, the loss of a consignment worth nearly £108,000 (as claimed) was not a frequent occurrence for the Walsh group of companies. It must have been of interest and concern to the group as a whole as to which company was the actual carrier. Is it to be seriously asserted that no inquiry was made in the group as to who was being sued? It is clear that from an early stage the Dutch sister company was sought to be made liable for customs duties by the Dutch customs authorities, so it was in the front line as regards that. If there was some breakdown in communications in the group or, in some manner, between a company in the group and its legal advisers, what is that to the plaintiff? Should the plaintiff not have been told immediately of the true position?

I have come to the conclusion that the judge’s ruling should be upheld. The balance of justice clearly favours the plaintiff’s stance in all the circumstances. If the defendant is ordered to pay damages and claims the sister company should really be amenable it would seem to be a simple matter of inter-company accountancy adjustment for it to go to the sister company and require a refund from that company. There must be a risk that the plaintiff may be left without a remedy. I think we have an obligation, too, to give efficacy in the courts to business arrangements especially as regards matters which, as the CMR Convention indicates, should be dealt with expeditiously (I refer to the limitation period). If the amendment is granted, a new set of proceedings, no doubt with its attendant interlocutory applications, will have to be put in train. Further, in principle, it would give rise to great mischief where there are related companies for one to stay silent and allow itself be sued until the correct company in the group is joined in the proceedings only when a time bar defence may be open to it.

For these reasons, I would dismiss the appeal.

Bank of Scotland (Ireland) Ltd -v- Mannion & Anor

[2010] IEHC 419 Laffoy J

The law

3.1 The law on the jurisdiction of the courts to amend or set aside judgments and orders is outlined in Delany and McGrath on Civil Procedure in the Superior Courts (2nd Ed.) at paragraphs 22-17 to 22-38, where a number of circumstances in which the jurisdiction has been recognised are identified. Understandably, the Court’s jurisdiction under Order 28, rule 11 of the Rules of the Superior Courts 1986, the so called “slip rule”, is not invoked by the defendants. It is the Court’s inherent jurisdiction to amend or vary an order which the defendants have invoked and they rely, in particular, on the decision of the Supreme Court in Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 ILRM 29.

3.2 In delivering judgment in the Belville Holdings Ltd. case, Finlay C.J. undoubtedly recognised that there exists a fundamental jurisdiction in a court to amend an order which it has previously made, even though the order is in the form of a final order and has been perfected. While the Supreme Court was unable to identify any Irish authority in point, Finlay C.J. stated that the position and principles appeared to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] 1 Ch. 673, quoting the following passage at p. 677:

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

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28, r. 11;

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

Finlay C.J. also quoted the following passages from the judgments in In re Swire 30 Ch. D 239, which were quoted by Romer J. at p. 678:

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

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

And Bowen L.J. says: ‘An order, as it seems to me, even when passed and entered, may be amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice’.”

Finlay C.J. went on to state:

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

3.3 While the context of the decision in the Belville Holdings Ltd. case was very different to the context here, it does illustrate the application of the principle and its limited nature. It concerned a case stated from an Appeal Commissioner to the High Court under the Income Tax Act 1967. In the High Court, on the question of law raised in the case stated – whether the Appeal Commissioner was correct in holding that notional fees attributable to services afforded by the appellant company to its subsidiaries should be taken into account in computing the tax profits or losses of the parent company for the tax period in question – it was held that, while it was correct that notional fees should be taken into account, the actual notional fees fixed by the Appeal Commissioner were not justified. However, the question posed in the case stated was answered in the negative. The issue which was before the Supreme Court was whether an order, which was made by the High Court three years after the initial order, directing that the initial order should be amended by the addition of a direction that the appeal should be re-entered before the Appeal Commissioner so that it could be determined having regard to the previous finding of the Court, was made without jurisdiction, as the appellant company contended. The Supreme Court held that the later order did not come within the common law principle which Finlay C.J. had outlined and set aside that order as having been made in error and deleted the variation which had been made to the initial order.

3.4 Delany and McGrath (at paragraph 22-29 et seq.) address another category of special or unusual circumstances in which a court will set aside a final order to protect constitutional rights and they quote the following passage from the judgment of Denham J. (at p. 544) in In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 as a useful summary of the circumstances in which this jurisdiction may be exercised:

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”

3.5 In L.P. v. M. P. (Appeal) [2002] 1 IR 219, Murray J., as he then was, explored the jurisdiction recognised in the Greendale Developments Ltd. case and addressed the position of a final order of the High Court in the following passage (at p. 231):

“While the judgments of this court in In re Greendale Developments Ltd. (No. 3) … specifically recognised, in the light of Article 34.4.6º, the inherent jurisdiction of this court to afford a remedy in respect of its own orders to which the exceptional circumstances referred to apply, I think it must follow that there is an inherent jurisdiction in the High Court to provide a similar remedy at first instance in the same circumstances in respect of a final and unappealable order of the High Court. Of course these considerations do not apply to decisions of the High Court which are subject to appeal in the ordinary way. There, appeal is the remedy ….”

3.6 Finally, Delany and McGrath (at paragraph 22-36 et seq.) recognise another category of circumstances in which a final order may be set aside by a court, that is to say, when it has been obtained by fraud. As Murphy J. stated in Tassan Din v. Banco Ambrosiano S.P.A. [1991] I.R. 569 at p. 580, in a passage which was referred to by Murray J. in L.P. v. M. P. (at p. 228):

“The acceptance … that a decision of the Supreme Court can be set aside for fraud … does not truly represent an exception to this constitutional provision. An order obtained by fraud is a mere nullity.”

The constitutional provision in question is Article 34.4.6º of the Constitution, which provides the decision of the Supreme Court shall in all cases be final and conclusive. As to what is meant by fraud in this context, Murphy J. referred to the speech of Lord Wilberforce in The Ampthill Peerage [1977] A.C. 547 where it is stated (at p. 571) that “[t]here must be conscious and deliberate dishonesty and the declaration must be obtained by it”.

Application of the law to the facts

4.1 It is important to reiterate that even on the defendants’ own evidence there is a conflict as to whether the defendants’ former solicitors had authority to consent to an order for possession which included the disputed premises. It was suggested by counsel for the defendants that the Court should conduct an inquiry as to whether there was authority to give the consent embodied in the letter of 24th April, 2009 to encompass the disputed premises and that the process should accommodate the plaintiff in seeking discovery against the defendants and that the solicitor who wrote the letter of 24th April, 2009 should be called as a witness and the plaintiff should be afforded an opportunity to cross-examine. I am satisfied that the Court has no jurisdiction to embark on such a process.

4.2 As regards the application of the common law principle identified and applied in the Belville Holdings Ltd. case, it is not the case here that the order of 29th April, 2009 does not correctly state what the Court actually decided and intended. The contrary is the case. The order of the Court reflects the consent as to the making of the order which was furnished to the plaintiff’s solicitors by the defendants’ former solicitors.

4.3 This case is not within the category of most exceptional circumstances in which a court will set aside or vary its final judgment in order to protect constitutional rights and justice and to ensure that a breach of constitutional rights is not perpetrated. In this case, the High Court made a consent order at the request of the plaintiff, which was acting, as it was entitled to do, on the letter of consent from the defendants’ former solicitors, who were on record for the defendants in the proceedings. This is not a case in which the defendants, through no fault of theirs, have been subject to a breach of constitutional rights. On the contrary, if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession which encompassed the disputed premises, and at the risk of unnecessary repetition it must be pointed out that there is a conflict of evidence on this point, in the inter partes context with which the Court was concerned on 29th April, 2010, the fault of the agent of the defendants, the former solicitors on record for them, must be attributed to the defendants, as counsel for the plaintiff submitted. Accordingly, the jurisdiction which the Supreme Court recognised in In re Greendale Developments (No. 3) is not applicable in this case.

4.4 In requesting the Court to make the consent order, which included the disputed premises, counsel for the plaintiff acted on the letter of 24th April, 2009 from the solicitors on record for the defendants, that is to say, the defendants’ former solicitors. It is beyond doubt that this is not a case in which there was a conscious and deliberate dishonesty in obtaining the Court order. The conduct of the plaintiff is unimpeachable, even if it is the case that the defendants’ former solicitors did not have authority to consent to an order for possession in relation to the disputed premises.

4.5 In summary, the Court has no jurisdiction whatsoever to vary the order of 29th April, 2009 and this application is wholly misconceived. It would be inappropriate to address and I express no opinion on the submission made by counsel for the defendants that, were they to bring a separate action against the plaintiff to set aside the agreement underlying the order of 29th April, 2010, they would be met with a plea of res judicata, which, as was made clear by its counsel, the plaintiff would seek to rely on. That scenario is entirely hypothetical.

Order

5.1 There will be an order dismissing the plaintiff’s application.

Manning -v- National House Building Guarantee Company Ltd & Anor

[2011] IEHC 98 Laffoy J

Strike out for want of prosecution/delay?

4.1 The Court has had the benefit of helpful outline written submissions from both parties on both issues which arise on the application of the first defendant. In relation to the application to strike out for want of prosecution and delay there was very little divergence between the parties as to the relevant principles applicable to such an application, which are well established.

4.2 The applicable principles were summarised by the Supreme Court in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 in the judgment of Hamilton C.J. at p. 475 et. seq. In the recent past they have received the imprimatur of the Supreme Court in Desmond v. M.G.N. [2009] 1 IR 737 and in McBrearty v. North Western Health Board [2010] IESC 27. On this application the application of the foregoing principles gives rise to the following issues:

(a) whether the first defendant has established that there has been inordinate and inexcusable delay on the part of the plaintiff in prosecuting the proceedings;

(b) even if the delay has been both inordinate and inexcusable, whether, on the facts, the balance of justice is in favour of or against the proceeding of the case; and

(i) whether the delay and consequent prejudice, on the facts of the case, are such as to make it unfair to the first defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,

(ii) whether there has been a delay on the part of the first defendant and, if so, whether such delay or conduct of the first defendant amounts to acquiescence on the part of the first defendant in the plaintiff’s delay,

(iii) whether by its conduct the first defendant has induced the plaintiff to incur further expense in pursuing the action, the weight being attached to this factor depending on the circumstances, and

(iv) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause serious prejudice to the first defendant, which, in my view, is the factor to which most weight should be attached.

4.3 It was submitted on behalf of the first defendant that there has been inordinate delay on the part of the plaintiff in prosecuting these proceedings, in that the proceedings commenced just short of ten years ago in 2001 and the pleadings closed in October 2004 when the Minister’s defence was delivered. While it is true that, given that the plaintiff has never delivered a reply, the matter could have been set down for trial over six years ago when the defence was delivered, the first defendant’s application for discovery against the plaintiff was still ongoing at that stage. However, from the time the plaintiff made discovery in January 2005 until it brought the motion to amend the statement of claim almost three and a half years later, in my view, there was inordinate delay on the part of the plaintiff because the plaintiff’s two requests for discovery from the first defendant, which were refused, were not pursued and did not advance the process. The fact that the plaintiff’s motion to amend its statement of claim was pending for another year and a half and then was effectively withdrawn exacerbated the delay on the part of the plaintiff. I have no doubt that the delay in prosecuting the proceedings as against the first defendant was inordinate by the time the first defendant initiated its application to strike out for want of prosecution in May 2010.

4.4 The explanations for the delay advanced by the plaintiff in his replying affidavit are the following;

(a) that there was a degree to which it was difficult for persons, obviously meaning the plaintiff’s legal advisers, to get “fully au fait” with the matter because of the amount of correspondence and other papers generated over nearly thirty years and the time it took the legal advisers to feel that they had properly grasped the technical issues;

(b) changes of legal advisers, both solicitors and counsel;

(c) the detail which had to be addressed by the plaintiff, for example, in responding to the first defendant’s request for further particulars.

Further, counsel for the plaintiff sought to advance as an excuse the fact that in the relatively recent past the plaintiff was involved in “a key application”, that is to say, the Minister’s application to strike out, which occupied the time of the plaintiff and his legal advisers. None of the foregoing matters, in my view, amounts to a reasonable explanation for the delay on the part of the plaintiff in prosecuting his action against the first defendant. Accordingly, I have come to the conclusion that the delay in prosecuting the proceeding was inexcusable.

4.5 Even though I have found that the delay on the part of the plaintiff in prosecuting the proceedings against the first defendant has been inordinate and inexcusable, nonetheless, in exercising the Court’s discretion, I must consider whether the balance of justice is in favour of striking out the proceedings or allowing them to continue, having regard to the factors outlined in the Primor case. On the crucial issue as to whether the first defendant is likely to be prejudiced in the defence of the action at this remove, so that there is a substantial risk that it will not have a fair trial, Dr. Farrell in his grounding affidavit has asserted that the first defendant is prejudiced because the plaintiff relies on events which occurred close to thirty years ago, referring to the tests carried out in 1981, 1982 and 1983 relied on in the statement of claim and adverting to his own memory difficulties in relation to those tests. His evidence is that he can only remember being in attendance at one test and he cannot recall when it took place or any of the details, nor can he recall carrying out a detailed inspection of the test houses. He also has difficulty in identifying the personnel of the first defendant who would have interacted with the plaintiff since the 1980s and some at least of them are no longer employed by the first defendant and may not be readily available to the first defendant. Apart from pointing out that the first defendant has not identified any witness who will not be available to it because of delay, the answer of counsel for the plaintiff to the prejudice complaints is that the case will not be “a recollection case” but will be an “expert evidence” case analogous to the McBrearty case, a “documents case” and a “legal issues case”. It was submitted that the tests, once proven, will speak for themselves and Dr. Farrell’s recollection will not add anything.

4.6 While the nature of the tests is not explained in the evidence before the Court, I assume they are capable of being replicated. In any event, the first defendant was aware that the plaintiff was basing his case as to the inadequacy of the standards prescribed in the Guidance Document and the Manual and the superior quality of the FireBar system on the tests for approximately nine years before the issue of prejudice was raised. I am not satisfied that the delay in prosecuting these proceedings has caused, or will cause, the first defendant serious prejudice, nor am I satisfied that the delay gives rise to a substantial risk that is not possible for the first defendant to fairly defend the proceedings. I attach some weight to the fact that the first defendant actively defended the proceedings until it received the plaintiff’s discovery in January 2005 and addressed the plaintiff’s two requests for voluntary discovery, albeit in a negative manner. I also attach some weight to the fact that the first defendant apparently resisted the plaintiff’s application to amend the statement of claim and was rewarded for doing so by being awarded its costs against the plaintiff, when he effectively withdrew the application. Finally, I attach some weight to the fact that the first defendant stood by for over a year and a half from the initiation by the Minister of his motion to strike out for want of prosecution before bringing a similar application.

4.7 For all of the foregoing reasons I have come to the conclusion that the balance of justice does not favour striking out the proceedings at this juncture merely for want of prosecution or delay.

Strike out on the ground of no cause of action?

5.1 On the issue as to whether the proceedings should be struck out under the Rules or under the Court’s inherent jurisdiction on the ground that the pleadings disclose no cause of action or on the ground that the proceedings are bound to fail and constitute an abuse of process, once again the law is well established and there is little or no controversy as to the legal principles applicable. Both parties referred to the recent decision of the High Court (Clarke J.) in Salthill Properties Ltd. and Brian Cunningham v. Royal Bank of Scotland Plc and Ors. [2009] IEHC 207, where the relevant principles are outlined. While the application of the first and second defendants in that case to have the proceedings dismissed invoked the doctrine of res judicata and the rule in Henderson v. Henderson, which was a special feature of the case, the exposition of the legal principles in relation to the broad issue of dismissal on the basis that the action is bound to fail is relevant to this application.

5.2 As Clarke J. pointed out (at para. 3.1) the leading case on the topic is the decision of Costello J. in Barry v. Buckley [1981] I.R. 306. It is instructive to quote in part the following passage from the judgment (at p. 308) quoted by Clarke J.:

“… 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; … . This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, … .”

5.3 An important aspect of the judgment of Clarke J. from the perspective of the first defendant is to be found in para. 3.9, in which he considers the approach which the Court should take to the evidence presented on an application to dismiss, stating:

Clarke J. went on, in para. 3.10, to emphasise the different role which documents may play in proceedings. In cases, such as the example quoted in the above quotation, 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. He differentiated other cases where the 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, referring to correspondence, minutes of meetings, memoranda and the like, which do not, of themselves, create legal relations between the parties. He emphasised, in para. 3.11, the importance of not confusing cases which are dependent on the documents themselves with cases where the documents may be a guide as to the underlying facts which need to be determined in order to resolve the issues between the parties. He dismissed a submission made on behalf of the plaintiffs that the Court was not entitled to engage in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the Court (in para. 3.12), pointing out that there is nothing to prevent a defendant producing contractual documents governing the relations between the parties and attempting to persuade the Court that the plaintiff, who has asserted that he entered into a contract with the defendant which contained certain express terms, has no chance of establishing that the document concerned could have the meaning contended for because of the absence of the relevant clauses.

5.4 However, in a passage (in para. 3.13), which was relied on by the counsel for the plaintiff in this case, Clarke J. indicated that the Court need not, and should not, require a plaintiff to be in a position to show a prima facie case on an application to dismiss in order that such application should fail. He pointed out that there have been many cases where the crucial evidence which allowed a plaintiff to succeed only emerged in the course of the proceedings. He summarised the position as follows (in para. 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.”

5.5 The first basis on which the first defendant contends that the plaintiff’s case is bound to fail is that his claim for relief, both declaratory and for damages, in reliance on the contents of the Manual is bound to fail. It was asserted that this is a fact which the plaintiff has indirectly acknowledged, in that the plaintiff does not contend that the Manual does anything other than reflect the contents of the Guidance Document prepared by the Minister, thus raising the question as to how it could give rise to a cause of action against the first defendant. The more fundamental basis on which the viability of the case based on the Manual is challenged is that, the plaintiff having abandoned his claim against the Minister on foot of the Guidance Document, he can have no claim against the first defendant arising from the contents of the Manual, which merely mirrors the contents of the Guidance Document. The response of the plaintiff was that the withdrawal of the claim against the Minister does not have the consequences contended for because, it was asserted, the plaintiff has not abandoned his entitlement to seek a declaration that the contents of the Manual and of the Guidance Document are not in compliance with the 1997 Regulations. However, insofar as it needed to be addressed, that answer did not address an assertion of the first defendant that s. 35(1)(h) of the Civil Liability Act 1961 (the Act of 1961) has come into play. That paragraph provides that for “the purposes of determining contributory negligence” –

“where the plaintiff’s damage was caused by concurrent wrongdoers and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged;”

What the first defendant argued was that, the plaintiff, having agreed to release the Minister from the proceedings, has thereby become responsible for the acts of the Minister, so that the plaintiff cannot hope to recover against the first defendant in relation to the contents of the Manual since it is based on the contents of the Guidance Document for which the plaintiff is now responsible by virtue of s. 35(1)(h).

5.6 In my view, the argument based on s. 35(1)(h) is somewhat convoluted and, in any event, on its face, falls short of the test which the Court has to apply, which is whether the plaintiff’s claim against the first defendant is bound to fail. The issue which that test raises in relation to the element of the plaintiff’s case based on the publication and continuance of the Manual in the form which the plaintiff contends is defective is whether the first defendant has established that the plaintiff cannot obtain the reliefs he claims in reliance on his allegations of wrongdoing against the first defendant in relation to the Manual.

5.7 In relation to the declaratory relief claimed by the plaintiff, in my view, the position is as follows:

(a) Counsel for the first defendant was correct in his submission that a declaration that the FireBar system is in full compliance with the 1997 Regulations cannot be pursued against the first defendant having regard to the case pleaded against the first defendant. As a matter of fact, the first defendant does not have a regulatory function in relation to the making or the enforcement of the 1997 Regulations. It is the Minister who bears that responsibility. The Minister is no longer in the case.

(b) Similarly, the declaration sought in relation to the Guidance Document, which, in substance, would appear to be a declaration that there is an internal inconsistency in the Guidance Document between the text and a diagram, cannot be maintained against the first defendant. The Guidance Document is the Minister’s document. That declaration could only be obtained against the Minister, who is no longer in the case.

(c) The application for a declaration that the Manual is not in compliance with the 1997 Regulations is obviously targeted at the first defendant. However, it is common case that, in the Manual, the first defendant has replicated the Guidance Document which was issued by the Minister under the 1997 Regulations, which, in turn, were made by the Minister on the authority conferred on him by the Act of 1990. The plaintiff has abandoned his claim against the Minister that the Guidance Document is not in compliance with the building regulations and, having regard to what I have stated at (b) above, he cannot pursue the claim in relation to the Guidance Document against the first defendant. Accordingly, there is no basis on which the Court could hold that the Manual is not in compliance with the 1997 Regulations.

5.8 It is important to emphasise that the first defendant is a private company; it is not a public organisation. Insofar as the plaintiff has a cause of action against the first defendant arising out of his complaints against the first defendant, he is limited to private law remedies. In his replying affidavit the plaintiff has averred that his primary objective has been a public interest objective – the development of structural fire safety. That is manifestly a worthwhile objective. However, if the plaintiff were to attempt to pursue it by alleging wrongdoing against a public body, such as the Minister, an issue as to whether the plaintiff would have locus standi might arise. It is neither necessary nor appropriate to address that issue here. However, as regards the first defendant, the issues which arise in these proceedings relate to whether the plaintiff is bound to fail in his pursuit of private law remedies for the wrongs he alleges against the first defendant.

5.9 Although the claim for damages for breach of statutory duty was not relied on by counsel for the plaintiff in support of his opposition to the first defendant’s assertion that the plaintiff’s case is bound to fail, the claim for damages for breach of duty, in essence, negligence, was in issue and needs to be considered in relation to the element of the plaintiff’s case based on the Manual. In answer to the allegation of negligence, it was the position of the first defendant that it does not owe a duty of care to the plaintiff, not merely, as the response of the plaintiff suggested, that there has been a failure on the part of the plaintiff to plead explicitly the nature of the duty of care in the statement of claim. On what I consider to be the crucial question, counsel for the first defendant asked rhetorically, what duty of care does his client owe to the plaintiff? That question has to be addressed in the context of the plaintiff’s complaint in relation to the Manual. Apart from the complaint that it does not comply with the 1997 Regulations, which on the basis of what is stated at 5.7 above, I consider cannot be pursued, the nub of the complaint as to the impact of the Manual on the plaintiff, as pleaded, is that it sets too low a standard, thereby inducing the first defendant’s builder customers of fire safety systems not to opt for the plaintiff’s dearer, but safer, system. The first defendant operates a guarantee scheme which the construction industry funds for the benefit of purchasers of new houses and apartments. It cannot be gainsaid that the first defendant must ensure that the standards it imposes in relation to the design and construction of the premises in respect of which it issues guarantees to the purchasers are fully compliant with the law. It unquestionably owes a duty of care to the purchasers of the premises to ensure such compliance. However, in my view, the first defendant owes no duty to providers of services to building contractors, such as the FireBar system, to impose standards which are conducive to the marketing of the product of a particular service provider as against another, even if the product of the former is superior. Therefore, the plaintiff’s claim in negligence based on the content of the Manual is unstateable.

5.10 The second major element of the plaintiff’s claim, as pleaded, is the alleged prohibition by the first defendant of the use of the FireBar system by builders availing of the HomeBond scheme. While he acknowledged that the complaint, as pleaded, is limited to the letter of 27th March, 2000 to Kingscroft, it was suggested by counsel for the plaintiff that the plaintiff believes that there were other similar actions on the part of the first defendant and the possibility of the plaintiff seeking an amendment of the statement of claim was mooted. Counsel for the first defendant pointed out that there is no affidavit evidence to support the suggestion, which is true. He also pointed out that the plaintiff had withdrawn an application to amend the statement of claim, as outlined earlier. The jurisprudence does recognise that “if the statement of claim admits of an amendment which might …, save it and the action founded on it, then the action should not be dismissed”, per McCarthy J. in Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425 at p. 428. However, there is no factual basis on which the Court could conclude that an amendment to the statement of claim, if sought, would be granted at this late stage in the process, almost a decade after the proceedings were initiated, and, even if leave to amend was granted, it would save the plaintiff’s case. Accordingly, the Court must address this element of the plaintiff’s claim by reference solely to the letter of 27th March, 2000.

5.11 As the passages from the letter of 27th March, 2000 quoted above disclose, what the letter of 27th March, 2000 conveyed to Kingscroft was that the fire stopping detail and method of construction which had been carried out on the sites which had been inspected was totally unacceptable and the basis on which they were unacceptable was explained. The direction which the first defendant issued to Kingscroft was to ensure that the method of construction for fire stopping complied with the 1997 Regulations. That letter did not, on any construction of it, prohibit the use of the FireBar system or material forming part of that system. I do not think it is open to the interpretation, as suggested by counsel for the plaintiff, that it was condemnatory of the plaintiff’s product and was wholly destructive. The letter outlined deficiencies and required remedial works not only in relation to fire stopping, but also in relation to the fixing of tiles and the placing of damp-proof courses under windows.

5.12 Moreover, Dr. Farrell in his second affidavit exhibited correspondence which post-dated the letter of 27th March, 2000 which, it was contended, illustrated that the plaintiff acknowledged at the time that the fire stopping at the Kingscroft sites was incorrectly installed. Having regard to the analysis contained in the judgment of Clarke J. in the Salthill Properties Ltd. case, I think it is appropriate that the Court consider that correspondence on this application. By letter dated 27th April, 2000 from the plaintiff to the first defendant, which was addressed to Dr. Farrell, the plaintiff commented on the contents of the letter of 27th March, 2000 to Kingscroft, a copy of which had been furnished to him by Kingscroft. Having stated that he had spoken with the first defendant’s Inspector by phone in relation to the “incorrect or otherwise installation” of the FireBar system in certain houses at Lucan, the plaintiff continued:

“I am in absolute agreement with [the Inspector’s] observations, as I have inspected same to find that the units were indeed incorrectly fitted. I have met with the tiling contractor’s personnel on site … to make the necessary arrangements for the inspection of same by me, in their presence. The Tiling contractor was quite apologetic for the errors made on the installation of the firebreaks.” (Emphasis in original).

The plaintiff went on to state that he had obtained an undertaking from the tiling contractor to have the problem, which he described as “this most serious error”, corrected and to ensure that such errors would not be repeated. While the letter of 27th April, 2000, which ran to ten pages, went on to complain that the first defendant had failed in his duties to its members to issue a directive regarding a fire stopping method, which the plaintiff contended was “an inherent known design failure”, it was a clear acknowledgement that the approach adopted by the first defendant in the letter of 27th March, 2000 in relation to fire stopping at party walls of the premises which had been inspected was justified.

5.13 Accordingly, the plaintiff’s claim of interference by the first defendant with its business in reliance on the letter of 27th March, 2000 is bound to fail. In any event, it would appear that, given that the plaintiff has acknowledged that he is not aware of any house or apartment which has been denied certification by the first defendant on account of the use of the Firebar system, even if he could establish that the letter of 27th March, 2000 was the source of some tortious liability on the part of the first defendant, he would be unable to prove any loss arising from that wrong.

5.14 In relation to the remaining elements of the claim, as pleaded in the statement of claim, on which considerably less emphasis was laid by counsel for the plaintiff than the major elements with which I have dealt above, I would make the following observations.

5.15 No proper analysis of the plaintiff’s claim for damages based on an alleged breach of the Competition Acts 1991 to 1996 was advanced on behalf of the plaintiff, although it was submitted that the situation is now governed by the Competition Act 2002 and that there has been a breach of s. 5 of that Act. Counsel for the first defendant was dismissive of that claim, stating it was unstateable on the ground that the first defendant is in the business of selling bonds for the benefit of house purchasers and it is not in the business of regulating fire safety systems. It was further submitted that the plaintiff has no locus standi to advance the case against the first defendant on the basis of alleged anti-competitive measures. Fortunately, having regard to the inadequacy of the submissions of both sides, I find it unnecessary to wander into the realms of competition law. The factual foundation of this element of the plaintiff’s claim is that, in operating its guarantee business, the first defendant applies fire safety standards which are known to be inadequate and to be contrary to law, thereby restricting access, including the plaintiff’s access, to the house building market and restricting technical development and investment in that market. That foundation has to be considered in the light of the current status of the element of the plaintiff’s claim based on the Manual, which I have already found to be unsustainable, but the basis of which is that the first defendant applies fire safety standards laid down in the Guidance Document made by the Minister under the 1997 Regulations, which, in turn, were made by the Minister under the Act of 1990. As the plaintiff has abandoned his challenge to the validity of the Guidance Document, the only inference which the Court can draw is that the first defendant is applying fire safety standards which are adequate and in accordance with law. Accordingly, in my view, the factual basis of the competition law element of the claim must fall away, and with it this element of the claim.

5.16 The element of the claim based on fair procedures and natural justice has no foundation either in reality or in law. The first defendant was under no obligation to the plaintiff to recognise the FireBar system in adopting the standards for containing the spread of fire which it imposes on its builder customers, who avail of HomeBond guarantee to provide comfort to, and a legal remedy for, the purchasers of new houses and apartments.

5.17 Likewise, the element of the case in which the plaintiff seeks to pursue a claim for damages for breach of his constitutional right to earn a living against the first defendant has no foundation in reality or in law. I understood counsel for the plaintiff to acknowledge that, although indicating that the claim was not being withdrawn.

5.18 In summary, every element of the plaintiff’s claim is bound to fail for the reasons set out above.

Order

6.1 There will be an order dismissing the plaintiff’s claim pursuant to the Court’s inherent jurisdiction on the ground that it is bound to fail.

Hu -v- Duleek Formwork Ltd & Anor

[2013] IEHC 50 Peart J

I am satisfied in this case that the plaintiff has no privity of contract with Aviva. That is very clear. He cannot seek to enforce the contract of insurance as between the first named defendant and Aviva, especially in circumstances where he does not dispute that the excess payment was a condition precedent to liability under the policy, and does not dispute that the excess payment was requested to be paid and was not paid. Monies are therefore not payable to the insured under the policy. If there was some arguable doubt still existing as to whether or not Aviva was entitled to repudiate liability, then the judgment of the Supreme Court in Dunne v. P.J.White & Co. Ltd [supra] could be of assistance, given the remarks of Finlay C.J, albeit obiter in his judgment, that the onus fell upon the insurer to prove what it was alleging, namely that it was entitled to repudiate liability. But that issue is not live in the present case on the evidence which has been adduced. In my view, s. 62 of the Act of 1961 does not provide the plaintiff with a remedy in this case against Aviva.

It follows that by reference to the claim against Aviva as appearing in the Amended Personal Injury Summons, there is no reasonable cause of action against Aviva disclosed, and that these proceedings should be struck out either under the provisions of O. 19, r. 28 RSC, or under the inherent jurisdiction of the Court as disclosing no reasonable cause of action, or disclosing a cause of action that was bound to fail.

However, before making any such order, I should say that of course the Court’s jurisdiction to strike out proceedings on these bases should be exercised sparingly and only in a clear case, otherwise the Court risks depriving a plaintiff of the benefit of a case which might just have a chance of succeeding. That would be manifestly unfair and unjust. The Court should be satisfied not only that the pleadings disclose no reasonable cause of action and/or that the claim is bound to fail, but also that there is no amendment possible to the claim which might save it. In that regard, Mr Kinsella has very ably urged that on the facts of this case the plaintiff could amend the proceedings in order to mount a claim in negligence against Aviva in negligence. In that regard he has submitted that there was gross delay and a failure on the part of Aviva to inform the plaintiff that a pre-condition to Aviva’s liability, namely the excess payment, had been breached. Mr Kinsella urges upon this Court that Aviva owed a duty of care to the plaintiff as a person whom it was aware was seeking to recover damages from the insured party, and who would be clearly adversely affected by that breach. It is submitted that Aviva owed it to the plaintiff to so inform him so that the plaintiff would have an opportunity of either taking steps through the courts to enforce the payment of the excess, or at least that the plaintiff himself would have the opportunity to make the payment to Aviva himself.

It is at first glance an attractive argument, not least because the Court will naturally have some sympathy for this plaintiff who no doubt sustained a serious injury to his hand, and even though the injury was covered by insurance taken out by his employer, nevertheless through no fault of his own, has found that the cover has been declined because of the non-payment of a relatively small amount of money. Sometimes a policy of insurance is repudiated because the accident was not reported to the insurance company in a timely manner as required, and it is understandable that in such circumstances the insurer may be prejudiced in relation to the efficacy of any investigation it could carry out at a late stage. In other circumstances, liability is repudiated because the policy has lapsed by non-payment of a premium, so that there was not on the day of a particular accident any policy of insurance in existence. However, the present case is very different. There was insurance in place, but the policy was worded in such a way that where a claim is made on the policy the insured person is required when requested to do so to make an upfront excess payment of €1000, even before liability for the accident has been established. It would be fairer in my view if the excess payment, if unpaid by the insured, was to be deducted from any payment that may be made to a third party claimant. It seems to be a manifest unfairness that in such circumstances the entire contract is repudiated and where the injured third party is the one who loses out completely.

However, sympathy is an insufficient basis for determining whether or not negligence would provide a reasonable cause of action against Aviva. In order to plead negligence there would have in the first instance to be a duty of care owed to the plaintiff of the kind argued for, and then a breach of that duty of care causing loss and damage to the plaintiff. I cannot see that Aviva are under a duty of care to this plaintiff to ensure that he is provided with information as to whether or not the insured has complied with the conditions of his insurance policy with Aviva. The contract is with the insured person, and rights exist in both directions arising from that contract. But I fail to see any basis for any third party duty of care as asserted by Mr Kinsella. If such a duty of care was owed to this plaintiff, the question arises as to whether the same duty is owed to other potential claimants under the policy of whose existence Aviva may not even be aware if proceedings have not been issued. How would such a duty of care be fulfilled? But I do not believe that Aviva is in a position of proximity with potential claimants as to be liable for a duty of care to them. The class of persons to whom such proximity would exist is too vague and uncertain.

There have been classes of relationship where a duty of care has been found to be owed on the basis of sufficient proximity. For example, where a solicitor is instructed by a client to prepare a will, he can be liable to a person who, but for the solicitor’s negligence, would have been a beneficiary under the will upon the death of the testator, even though that beneficiary is not the solicitor’s client and is not in any contractual relationship with that solicitor. But I know of no case where the Courts have found a duty of care to exist between an insurance company and a potential claimant against the insured party, and have been referred to none. It would not be right in the present case in such circumstances to extend the law that far, so as to find that the plaintiff might reasonably argue his claim against Aviva under the law of negligence. In those circumstances I am satisfied that the amendment sought in this regard by Mr Kinsella would not save the proceedings, and indeed, if such was permitted, it would I suspect inevitably lead to a further application to strike out the plaintiff’s case as disclosing no reasonable cause of action and/or on the basis that it was a claim that is bound to fail.

I must make an order, but with sympathy for the plaintiff and therefore with regret, striking out these proceedings against the second named defendant on the basis that they disclose no reasonable cause of action against the second named defendant, and I do so under the inherent jurisdiction of the Court, and on being satisfied that there is no amendment of the proceedings which could be made to the claim, on the facts of the case, which might save the proceedings for the plaintiff.

Hegarty v D & S Flanagan Brothers Ballymore Ltd & Ors

[2013] IEHC 263 (31 May 2013)

JUDGMENT of Mr. Justice Birmingham delivered the 31st day of May 2013

Before the court is an application brought by the third named defendant which seeks to have him struck out as a defendant in the proceedings pursuant to O. 15, r. 14 of the Rules of the Superior Courts or in the alternative for an order pursuant to O.19, r. 28 of the rules of the Superior Courts striking out the proceedings as against him on the grounds that they disclose no reasonable cause of action and are frivolous and vexatious, or pursuant to the inherent jurisdiction of the court. Alternatively, an order is sought pursuant to O. 63, r. 9 of the rules setting aside the order of the Master of the High Court of the 20th June, 2012 joining the third named defendant as a party to the proceedings.

The background to the present application is that the plaintiff alleges that on or about the 2nd November, 1999 she entered into a building contract with the first named defendant which would see it construct a dwelling at 22 Hyde Court, Roscommon. The third named defendant, an engineer, was instructed in relation to the proposed development. It appears the instructions came from a company called Shellac Limited. Mr. Sean Flanagan who might be described as the principal of the first named defendant is also the principal of Shellac Limited. It appears that on 29th September, 1999 the third named defendant issued a Foundation Inspection Certificate in respect of the property and that on the 7th June, 2000 he issued a certificate of compliance with the planning permission.

The plaintiff took up residence in April, 2001 and in December of that year or January, 2002 she noticed cracks on the walls of the property but her initial assumption was that these were settlement cracks.

By reference to the pleadings it seems that the plaintiff has now been advised that there are significant defects in the property and specifically has been advised that the foundation was placed on unsuitable ground and the roof structure was insufficiently supported. An Equity Civil Bill was served upon the first named defendant in May, 2007. By order of the Roscommon County Registrar the second named defendant was added as a co-defendant in April, 2009 and was served with an Amended Equity Civil Bill. In December, 2010 the proceedings were transferred to the High Court by order of the Country Registrar. An order of the Master of the High Court on 4th March, 2011 adopted the proceedings as if the action had commenced in the High Court by Plenary Summons. By order of the Master of the High Court on the 20th June, 2012 the third named defendant was joined to the proceedings as a co-defendant. In the course of an affidavit sworn by way of response to the motion now before the court, the plaintiff contends that she was unaware that the third named defendant had certified the foundations of the property until the foundation certificate was made available as part of the discovery process on the 24th January, 2012. Proceedings were served upon the third named defendant which claimed that the Inspection Certificate which stated that the foundations were in substantial compliance with the Building Regulations 1997 and adequate for the purpose for which they were intended was issued negligently and/or in breach of duty including breach of statutory duty. So far as the certificate of compliance of planning permission is concerned it is pleaded that the plaintiff relied on the certificate. Damages are claimed against the third named defendant for negligence and/or breach of duty including breach of statutory duty and/or misrepresentation.

In the course of the affidavit sworn by the plaintiff she makes the case that the limitation period in respect of her claim did not begin to run until the date of knowledge of the certificate; the 24th January, 2012.

The first matter that requires consideration is whether the procedure that has been adopted is appropriate. The general position is that a party may be joined as a defendant even in circumstances where there are issues as to whether any claim would be statute barred. Generally speaking the Statute of Limitations is a matter of defence. However different considerations arise where a claim is clearly and manifestly statute barred. The issue was considered in the case of Hynes v. Western Health Board [2006] IEHC 55 (Unreported, High Court, Clarke J., 8th March, 2006). There, Clarke J. commented as follows:-

“3.2 I have come to the view that the general proposition, to the effect that a defendant can be joined in proceedings notwithstanding there being issues as to the applicability of the statute to his case, is subject to an exception that the court retains a discretion not to join a defendant where the statute would clearly apply and where in the words of Budd J. [O’Reilly v. Granville [1971] I.R. 90] the joining of such a defendant would be “futile”.

3.3 It would, it seems to me, be inappropriate for a court to impose upon parties (and indeed the court itself) the burden of dealing, in a wholly unnecessary way, with a number of applications and hearings where the end result of all such applications would necessarily mean that the case against the individual concerned would be dismissed as being manifestly statute barred. A contrary view would, it seems to me, be inconsistent with the policy inherent in the jurisdiction of the court to dismiss a manifestly ill-founded cause of action as identified in Barry v. Buckley [1981] I.R. 306.

3.4 I am, therefore, satisfied that the court should not, in a clear case, join a defendant where it is manifest that the case as against that defendant is statute barred and where it is also clear that the defendant concerned intends to rely upon the statute.

3.5 However I am also of the view that O’Reilly v. Granville is authority for the proposition that the court should not enter into an inquiry as to whether a claim may or may not be statute barred on the hearing of a procedural motion seeking to join a defendant (or, as here, where a defendant having been joined seeks by a similar procedural motion to have the earlier order set-aside). On that aspect of the matter the only question which the court should ask itself on such an application is as to whether the claim as against the defendant concerned is clearly statute barred. If there is any doubt whatsoever about that fact, then the defendant should be joined, if it is otherwise appropriate so to do, and the issue of the claim being or not being statute barred should be dealt with the in the ordinary way as appropriate to the circumstances of the case including, if so appropriate, by means of a preliminary issue.”

Similarly, the Supreme Court in O’Connell v. The Building and Allied Trades Union [2012] IESC 36 (Unreported, Supreme Court, 12th June, 2012) came to a similar conclusion with MacMenamin J. stating at paragraph 36:

“a co-defendant can be joined in proceedings, notwithstanding there being an issue as to whether the statute of limitations applies to his or her case [but that] the court retains a discretion not to join a defendant, but only where the statute would very clearly apply, or where, in the words of Budd J., the joinder of such a defendant would be futile.”.

In this case there is no doubt that the third named defendant intends to rely on the statute of limitations. The question therefore is whether the claim against the third named defendant is clearly and manifestly statute barred and whether there are any circumstances which would prevent the third named defendant from relying upon the statute. Counsel for the third named defendant says that the limitation period began to run either on the date on which the plaintiff relied on the planning certificate, which was the 2nd November. 1999 or, at the very latest, when damage manifested in December, 2001/January, 2002. The plaintiff has relied on the decision of Herbert J. in O’Donnell v. Kilsaran Concrete [2001] 4 IR 183. However, I do not believe that case assists the plaintiff as Herbert J. did not find it necessary to express an opinion on what he described as the “vexed question of discoverability” because he concluded that the property damage in question was attributable to an excess of iron pyrites in the construction blocks and was of recent origin, having come into existence not long prior to October, 1998, in a situation where the plenary summons was issued on the 4th June, 1999, which was well within the limitation period.
In the present case there is no basis for concluding that damage was not manifest by December, 2001/Janaury, 2002. All the authorities in this area were reviewed by Dunne J. in Murphy v. McInerney Construction Limited and James Griffin [2008] IEHC 323 (Unreported, High Court, Dunne J., 22nd October, 2008). Having conducted that exercise she observed as follows:-

“I find it difficult to come to any conclusion other than that the question of a discoverability test simply does not arise. It is quite clear from the authorities referred to above that a discoverability test does not avail a plaintiff when dealing with a plea that a claim is statute barred under Irish Law”.

In Irish Equine Foundation Limited v. Robinson [1999] I.R. 442, Geoghegan J. was dealing with the construction of an equine centre where a final certificate had issued in November, 1987 and proceedings were issued in January, 1996. The plaintiffs claimed that as there had been no manifestation of damage until the leaks occurred the limitation period only ran from that time. However, it was held that the defects in the building could have been detected by experts at any stage after the construction of the building. The defects had manifested themselves from the time the building had been erected and the statutory period commenced from then.
Geoghegan J. commented as follows:

“It is obvious from those dates that the action in contract is clearly statute barred. It is trite law that the limitation period commences on the date of the breach of contract and not on the date when the damage is caused. In other words, a breach of contract per se gives rise to a cause of action. The only question which I have to consider, therefore is whether the action in so far as it is founded on tort, (i.e. the tort of negligence) is likewise statute barred. The contention of the plaintiff is that there was no damage, or at least no damage manifested itself, until the ingress of water through the ceiling of the centre in late 1991. If the period commenced on that date then, quite obviously, the action in so far as it is founded on tort is not statute barred.

It is common case that discoverability, as such, cannot be relevant in considering what is the appropriate commencement date in respect of the limitation period. On this point at least, the view of the House of the Lords taken in Pirelli v. Oscar Faber and Partners [1983] 2 A.C. 1, represents Irish Law also. This is quite clear from the decision of the Supreme Court in Hegarty v. O’Loughran [1990] 1 IR 148, even though that particular case dealt with personal injuries and not damage to a building. The reasoning contained in the several judgments in Hegarty v. O’Loughran and the criticism voiced of the decision of Carroll J. in Morgan v. Park Development [1983] I.L.R.M. 156, indicate beyond doubt that the Supreme Court rejects the discoverability test no matter what the nature of the damage claimed is.”

In my view the case law in this jurisdiction points to a very clear, albeit very harsh, conclusion. The time-limit on negligence actions begins to accrue on the date on which damage manifests itself, and not from the date on which the damage is discovered. In laying out this principle, McCarthy J. in Hegarty v. O’Loughran states at page 164:

“The fundamental principle is that words in a statute must be given their ordinary meaning and, for myself, I am unable to conclude that a cause of action accrues on the date of discovery of its existence rather than the date on which, if it had been discovered, proceedings could lawfully have been instituted. I recognize the unfairness, the harshness, the obscurantism that underlies this rule, but it is there and will remain there unless qualified by the legislature or invalidated root and branch by this court.”

The above passage illustrates that counsel for the third named defendant was correct in claiming that the time limit for taking an action against his client ended in January 2008 at the latest.

It is clear from the above cases, and particularly in Hynes v. Western Health Board and in O’Connell that a court ought to consider two main questions when hearing a motion to join a party as a defendant. Those questions, as seen at paragraph 38 of O’Connell. are:

i) Whether the claim as against the intended defendant is “clearly and manifestly statute barred”, and
ii) Whether “there are no circumstances in which the intended defendant would be debarred either in law or equity from relying upon the statute”

In considering the facts and the legal submissions, both the above questions can be answered in the affirmative. As the claim against the third named defendant is clearly statute barred I will grant the relief sought.

In my view, it is indeed clear or manifest that the claim is statute barred. On the view of the facts most favourable to the plaintiff, the cause of action accrued in January, 2002, but the proceedings against the third named defendant were not commenced until 20th June, 2012, more than ten years later. As the issue of discoverability does not arise, it is clear that the claim is statute barred. It would be to do a disservice to the parties to decline to make the orders sought by the moving party now and instead to compel a further application. Accordingly, I will make the orders sought by the third named defendant.

Walter & Anor -v- Crossan & Ors

[2014] IEHC 377

UDGMENT of Mr. Justice Gerard Hogan delivered on 24th July, 2014

Can a plaintiff in an action for negligence recover damages for the upset and inconvenience caused by a breach of a duty of care which is owed to them where that upset, distress and inconvenience falls short of nervous shock and psychiatric injury? This is essentially the issue which arises in this application which is brought on behalf of the third, fourth, fifth and sixth defendants (“the Hayes McGrath defendants”) to have the negligence proceedings against them struck out pursuant to the provisions of O. 19, r. 28 or, alternatively, pursuant to the inherent jurisdiction of the court. It is also contended that the proceedings should also be struck out in the absence of an authorisation from the Personal Injuries Assessment Board under s. 12(1) of the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”) on the basis that the claim is really one for personal injury which required the prior authorisation of the Board before such proceedings could be issued.

The issue arises in the following way. In July, 2006 the plaintiffs, who are husband and wife, contend that they entered into an agreement with the first defendant, Peter Crossan, to purchase lands and premises at No. 2 Avondale Court, Ballyguile, County Wicklow. This agreement also entered into an agreement for the construction of a house to be built by the second defendant, Crossan Homes Ltd., in accordance with a particular planning permission bearing record number 02-6245, which permission was held by the Crossan defendants. Messrs. Hayes McGrath are a firm of solicitors who acted for the Crossan defendants in connection with this sale and conveyance of land.

One of those conditions (“condition 2”) contained in the planning permission was that the sum of €32,943.80 was to be paid in respect of the site at No. 2 Avondale Court to Wicklow County Council for the provision of roads, water, sewerage and recreational amenities.

The conditions of sale required that the vendor provide “written confirmation from the local authority of compliance with all conditions involving financial contributions.” In the amended statement of claim delivered on 14th February 2014 the plaintiffs allege that the first defendant in his capacity as a director of the second defendants certified in writing that the levies specified in condition 2 of the planning permission had been paid to the Council so that this condition was complied with. The plaintiffs further allege that this certificate was inaccurate and misleading and in that respect the Crossan defendants are sued both in negligence and for breach of contract. Since the Crossan defendants were not a party to this motion and since they have not been heard in relation to this matter, I refrain from any further comment in relation to these particular allegations.

The plaintiffs then allege that on foot of this certificate they paid over the funds for the house purchase for the benefit of the Crossan defendants and that the funds were released by Hayes McGrath in their capacity as the solicitors for the Crossan defendants prior to formal confirmation from the local authority either that the terms of condition 2 had been complied with or the production of any receipts from the Council in that regard. The sale closed at the end of July 2006, but it appears that the Council wrote to Hayes McGrath on 4th August 2006 shortly thereafter to the effect that the payments due in respect of condition 2 for 2 Avondale Court were still outstanding. The plaintiffs further allege that Hayes McGrath:

“negligently parted with the plaintiffs’ funds and further failed to notify the plaintiffs’ solicitor that the said certificate being furnished was inaccurate and therefore in breach of planning permission reg. ref. no. 02/6245.”

I should pause at this point to observe in the interests of fairness that Messrs. Hayes McGrath have indicated that they will deny these allegations should the matter go to full trial. Nevertheless, it is equally clear that for the purposes of an application of this kind I must also assume that, generally speaking at least, the plaintiffs will be in a position to prove all factual matters contained in their pleadings: see Ennis v. Butterly [1996] 1 IR 426, 430-431, per Kelly J.
I might also observe that while the plaintiffs allege that in this respect there was a breach of contract on the part of Hayes McGrath, there is nothing at all to suggest that there was such a contractual relationship between them and Hayes McGrath. I will therefore proceed on the basis that the action against these particular defendants is for negligence and breach of duty only. (The claim for breach of contract as against the Crossan defendants is a different matter entirely.)

Following the completion of the sale, the Mr. Walter and Ms. Rodriguez moved into 2 Avondale Court which had by then become their family home. So far as they were concerned, they had acquired a full and complete title to the property, including a full planning permission to use and occupy the dwelling for this purpose. Yet an unpleasant surprise awaited them, because it is common case that on 22nd March, 2011, the plaintiffs received a notification from Wicklow County Council to the effect that this financial contribution had not been paid and that the sum of some €36,322 was now due and owing by them to the Council.

It seems clear that this communication came entirely out of the blue and it requires but little imagination to accept that the terms of this letter must have been extremely upsetting and distressing for Mr. Walter and Ms. Rodriguez. The letter was described as a warning letter for the purposes of s. 152 of the Planning and Development Act 2000 and it invited the Walters to make submissions under s. 152(4) of the 2000 Act on the question as to whether their dwelling was unauthorised dwelling. The letter was rounded off with what amounted to an implied threat of future criminal prosecution under s. 154, as the writer summarised the nature of possible criminal penalties open under the section, including – if you please – the possibility of a prosecution upon indictment.

It is equally accepted that the solicitors for Wicklow County Council subsequently sent a formal demand letter to the plaintiffs requiring the payment of this sum within a period of fourteen days on 9th August, 2011. That letter also indicated that the Council threatened to issue injunction proceedings pursuant to s. 160 of the Planning and Development Act 2000 as against both the Walters and the Crossan defendants, with the letter writer saying that the “Council cannot be expected to elect between respective defendants.”

While the Council are not a party to the proceedings – and thus have not been heard on this motion – I should have thought that they could indeed have been expected to choose between these potential defendants. After all, a cursory examination of the surrounding facts would have revealed that the Walters were completely innocent parties who relied upon assurances given by others. These assurances were accepted by them in perfect good faith in the course of a conveyancing transaction in respect of what, after all, was the acquisition of their family home. The correspondence further suggests that the Council and the Crossan defendants had had extensive dealings with regard to the issue of the payment of the development levies in respect of 2 Avondale Court and other properties.

Yet for their pains, the Walters received a series of threats – there is, I fear, no other word for it – from officialdom couched in imperious and, many might think, insolent language. While it would be unfair to dwell on this in the absence of the Council in the proceedings, I cannot nonetheless help but thinking but that, objectively speaking, this treatment of the Walters has been most disappointing. If law-abiding and upright citizens are treated in this fashion by agents of the State, is it any wonder that their loyalty and fidelity to the State is put to the test?

At all events, there matters stood until 19th March, 2013, when the planning compliance section of Wicklow County Council wrote to the second defendant. In that letter the Council referred to earlier correspondence regarding use of part of a cash security held for other developments in the Wicklow are to pay for the outstanding contributions due in respect of Avondale Court. The writer continued:

“I can confirm that the Council is agreeable to transfer €24,020.00 of the cash security held for Aughrim Hall to cover the contributions outstanding for No. 2 Avondale Court. On this basis they confirm that Condition 2 of 02-6245 has been complied with for No. 2 Avondale Court. I am to advise that although the above condition has been complied with in respect of the above planning permission, it does not necessarily imply that all other conditions pertaining to this application have been complied with.”

Messrs. Hayes McGrath point to these developments to support their claim that the matter is now moot and is now at an end. Yet there is rather more to this business than that. There can be no doubt whatever but the receipt of correspondence from a State agency which alleges the non-payment of significant sums said to be due to the State or one of its agencies and which threatens a range of civil and criminal sanctions is deeply unpleasant and upsetting. This is especially so where – as here – such correspondence is entirely unexpected and where the recipients are completely innocent of any wrongdoing. Adding insult to injury, the correspondence from the Council casually threatened the Walters with a criminal prosecution. The tone of the correspondence from the Council was peremptory and uncompromising.
One can therefore readily accept that the Walters suffered acute distress and upset as a result of these demands and threats which unfairly hung over them in the period between March 2011- March 2013. It may also be accepted that the relationship between the Hayes McGrath defendants, as solicitors for the developer defendants, and the Walters as purchasers of the property developed by their client was sufficiently close as to give rise to a duty of care on the part of these defendants so far as the issue of certification was concerned: see, e.g., the judgment of Barrington J. in Wall v. Hegarty [1980] I.L.R.M. 124 and the judgments of Keane and Barron JJ. in Doran v. Delaney [1998] IESC 66, [1998] 2 I.R. 61.

This is especially so if – as the plaintiffs allege – as the solicitors for the developer, Messrs. Hayes McGrath had given the Walters to understand that all the requisite conditions of the planning permission had been met prior to the completion of the sale.

The issue which, however, arises in this motion is not then the existence of a duty of a care or even whether there was a breach of it (though this is denied by the McGrath defendants). The question is rather a different one, namely, whether even accepting that there was such a duty of care and that it was breached, the nature of the loss and injury suffered by the Walters is cognisable in an action for negligence as distinct to an action for breach of contract.

There is no doubt but that damages for distress and inconvenience of this kind are at least in principle recoverable in an action for breach of contract. Thus, damages can be recovered for upset and disappointment arising from an unsatisfactory holiday: (Jarvis v. Swan Tours Ltd. [1973] Q.B. 223) or where a wedding party are wrongly denied access to food and drinks which a public house had agreed to supply for a post-wedding reception (Dinnegan v. Ryan [2002] IEHC 55) or where a worker is wrongfully denied the early retirement he had been promised and for which he had made arrangements (Browne v. Iarnród Eireann (No.2) [2014] IEHC 117). Damages for inconvenience can also be awarded for breach of contract in respect of the construction of a defective dwelling: see, e.g., Johnson v. Longleat Properties Ltd. [1976-77] I.L.R.M. 93, Quinn v. Quality Homes Ltd. [1976-77] I.L.R.M. 314, Leahy v. Rawson [2004] 3 I.R. 1 and Mitchell v. Mulvey Developments Ltd. [2014] IEHC 37.

It is true that in the building cases it is sometimes said that such damages are awarded by reason of the negligence of the developer or other building professional. But in none of these cases have damages been awarded independently of any breach of contract. In reality, therefore, the award of damages for inconvenience in these building cases is to represent the loss of expectation in respect of the performance of the contract brought about by the negligence and breach of contract on the part of the defendant. While the scope of recovery in contract and tort is generally similar, there are also at times subtle differences which reflect the fact that in contract the plaintiff is also entitled to be compensated for disappointment and loss of enjoyment in respect of the loss of expectation for which he or she has actually contracted. As McMahon J. put it in Johnson ([1976-77] I.L.R.M. 93, 105):

“It appears to me that in principle damages may be awarded for inconvenience or loss of enjoyment when these are within the presumed contemplation of the parties as likely to result from the breach of contract. That will usually be the case in contracts to provide entertainment or enjoyment, but there is no reason why it should not also be the case in other types of contracts where the parties can foresee that enjoyment or convenience is likely to be an important benefit to be obtained from the due performance of that contract.”

Where – as in the present case – there is no such contractual relationship, it is clear from the case-law that damages for inconvenience and upset of this nature are not recoverable. This is illustrated by two relatively recent decisions of this Court, Larkin v. Dublin City Council [2007] IEHC 416, [2008] 1 IR 391 and Hegarty v. Mercy University Hospital, Cork [2011] IEHC 435.
In Larkin the plaintiff was a full time fireman who entered a competition for the prestigious post of sub-officer. He was later informed that he had been successful and received a letter to this effect. He received the praise and congratulations of friends and colleagues. A few days later it emerged that a mistake had been made and the plaintiff was informed that he had been unsuccessful. He was deeply upset as a result and found that he could not return to work for several months. Although he did not suffer any psychiatric illness, his general practitioner gave evidence that he had suffered an acute stress reaction. The plaintiff claimed damages for what Clark J. described as the “upset, emotional upheaval and distress caused by the negligent assessment of his marks and the consequent raising and dashing of expectations.”

While accepting that the Council owed the plaintiff a duty of care and that it had been breached in the circumstances, Clark J. also noted that cases such as Kelly v. Hennessy [1995] 3 IR 253 establish that damages may only be awarded in negligence actions for nervous shock or psychiatric injury. This, however, was not such a case ([2008] 1 IR 391, 397-398):

“The plaintiff did not and does not suffer from a recognisable psychiatric condition. He suffered undoubted upset, humiliation, sensitivity and disappointment but required no treatment or medical intervention. His employers quite correctly offered a full and unreserved apology as soon as the mistake was discovered and he was offered €5,000 as an ex gratia payment. Counselling was offered and availed of. A period of six months paid leave was permitted during which time he stayed away from work while leading a normal life. He then returned to the work which he loves and where the uncontroverted evidence is that he is an excellent and committed firefighter. He has not established any psychiatric illness such as depression or indeed any other illness. He is therefore akin to the person who suffers grief and distress who for public policy reasons is excluded from the recovery of damages. While there was a breach of duty it did not give rise to any injury which entitles the plaintiff to recover damages.”

A similar view was taken by Irvine J. in Hegarty in a case where a seriously ill patient was (incorrectly) told by hospital personnel that he had contracted the MRSA virus. She nonetheless took the view that in the absence of proof of psychiatric injury or nervous shock, there was no compensatable injury in an action against the hospital:

“The height of the plaintiff’s evidence was that he experienced very high levels of stress and anxiety in or about the time he was diagnosed as being MRSA positive. The Court heard no evidence from any medical practitioner to the effect that the plaintiff had, as a result of the negligence alleged, developed any recognisable psychiatric injury. Evidence of any actionable injury was seriously lacking in the case advanced on the plaintiff’s behalf and without actionable damage, stress and anxiety alone are insufficient to support a claim. Negligence is not complete until an alleged breach of duty goes on to cause damage to the extent recognised by the law and no such damage was demonstrated in this case. Thus, having regard to the decisions of the court in a long line of legal authority, which perhaps had its infancy in the decision of the Supreme Court in Kelly v. Hennessy [1995] 3 IR 253 and was more recently considered by Clark J. in Larkin v. Dublin City Council [2008] 1 IR 391, the plaintiff’s claim as a matter of law is not sustainable.”

There are, of course, other cases where acute forms of mental distress may be compensated. The singular case of Wilkinson v. Downton [1897] 2 QB 57 provides one such example. In that case the defendant falsely told the plaintiff as a practical joke that her husband had been injured in an accident involving a horse-drawn vehicle and that he was lying prostrate on the ground with his legs broken and that he had summoned her to fetch him. While the plaintiff’s husband returned safely by train from the races at Harlow that evening, the effects on the plaintiff by reason of the telling of this practical joke were nonetheless dramatic. She became violently ill, her hair turned white and she seems to have suffered a severe psychiatric illness as a result.
The plaintiff sued for damages in an action on the case. Wright J. held the defendant liable on the ground that ([1897] 2 QB 57,58-59):

“he had wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification for the act.”

An essential element of the tort in Wilkinson v. Downton is that the words were spoken falsely (and so the wrongful act went beyond mere negligence) and were calculated to and did in fact cause physical harm. It may well be that, in any event, the injuries in Wilkinson v. Downton would nowadays be recognised as coming within the established category of nervous shock in the manner described by the Supreme Court in Kelly v. Hennessy.
There are also other cases where the common law of negligence may have to be supplemented and developed over time in order to give full effect to the constitutional requirements in relation to the protection of the person in Article 40.3.2. I touched upon this in my judgments in Sullivan v. Boylan (No.1) [2012] IEHC 389 and Sullivan v. Boylan (No.2) [2013] IEHC 104. In that case the plaintiff had been harassed and subjected to threats within her own house by a debt collector to the point whereby she was afraid to leave her own home. I held that in those circumstances the plaintiff could recover damages for breach of her constitutional rights to the protection of the person (Article 40.3.2) and the inviolability of the dwelling (Article 40.5). As I pointed out in Sullivan (No.1):

“One might equally contend that the actions of the [debt collector] were calculated to physical harm to Ms. Sullivan and that they did in fact do so. It would nevertheless be artificial to extend the rule in Wilkinson v. Downton in this fashion. In the latter case the injuria was the acute physical harm which the plaintiff had suffered. It is true that in the present case Ms. Sullivan lost weight and in the end was prescribed a mild sedative to assist her to have sleeping pattern restored.

But there the comparisons end, as unlike Wilkinson v. Downton, the claim here is not really for physical injury at all. It is rather for the acute distress caused by the outrageous invasion of her personal space which is the very essence of the inviolability guarantee in Article 40.5. This guarantee is complemented by the protection of the person in Article 40.3.2, the effect of which, if I may venture to repeat what I said in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235 is that:-

“By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the integrity of the human mind and personality.”

I might further repeat what I said on this point in Sullivan (No.1):

“In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.’”

While it may therefore be allowed that as cases such as Sullivan show that the extent of the recovery of damages in negligence may yet have to be supplemented or developed over time in appropriate cases in order to ensure that the requirements of Article 40.3.2 in respect of the protection of the person are more completely satisfied, the present case is not such a case. The essence of the award of damages for breaches of constitutional rights in Sullivan was that it was the result of the wrongful invasion of the plaintiff’s personal space within her own dwelling which caused her acute mental distress. While the plaintiffs’ distress in the present case might just possibly approximate to that of the plaintiff in Sullivan, the other wrongful conduct which had made the plaintiff in that latter case effectively a prisoner within her own home and which was the triggering factor in the damages award is simply not present here.

Conclusions

In these circumstances, I feel compelled to strike out the case as against the Hayes McGrath defendants alone pursuant to the inherent jurisdiction of the Court. I take this step reluctantly, but do so only on the very narrow ground that the injuries which the plaintiffs suffered (mental distress, upset and inconvenience falling short of nervous shock or psychiatric illness) are not recoverable in an action for negligence, as distinct from an action for breach of contract.

For these reasons, it is unnecessary to consider any issue arising by reason of the 2003 Act.

Keohane v Hynes & another

[2014] IESC 66Judgment of Mr. Justice Clarke delivered the 20th November, 2014

Introduction

1.1 This appeal raises questions about the exercise of the inherent jurisdiction which the courts possess to dismiss proceedings as being bound to fail. This case generally arises out of a contract entered into in September 2000 for the purchase of shares in a company called Lawayo Limited. In the proceedings, the plaintiff/appellant (“Mr. Keohane”) asserts that he entered into an arrangement with the first named defendant (“Mr. Hynes”) for the sale to Mr. Hynes of the shareholding in question. It would appear that a written contract was entered into in respect of the sale of the shares in question but that the contracting party in that contract was not Mr. Hynes but rather a company called Studley Investments Limited (“Studley”). While some of the sums due under the contract were paid, a significant balance in excess of IR£650,000 is said to remain due.

1.2 Mr. Keohane alleges that Mr. Hynes is liable to pay the euro equivalent of that balance together with interest. However, Mr. Keohane has also joined the second named defendant/respondent (“Grehan and Partners”) who are the solicitors who acted both on his behalf and on behalf of the purchaser in the transaction in question. Against Grehan and Partners it is alleged that they were negligent in failing to advise Mr. Keohane of the fact that he was contracting with a company rather than with Mr. Hynes personally. In addition, Mr. Keohane claims that some of the provisions of the contract were insufficient to protect his interests. It is said that there was an actionable failure on the part of his solicitors to ensure that any contract entered into was, irrespective of who the purchaser might be, sufficient to protect his interests. It is argued that those issues are exacerbated by what is said to have been the conflict of interest arising by virtue of the fact that Grehan and Partners acted for both sides. In summary, Mr. Keohane alleges that, if the true nature of the contract which he was to sign had been explained to him, he would not have entered into that contract. In addition, it is said that it was possible that, if there had been no wrongdoing on the part of Grehan and Partners, a contract which was with Mr. Hynes personally and which did adequately protect his interests could have been procured and entered into. It is said that Studley became insolvent and was dissolved so that the contract with them became worthless. The claim is framed in the tort of negligence, in breach of contract and in misrepresentation.

1.3 Against that background, Grehan and Partners brought an application before the High Court seeking to have the proceedings dismissed either under O.19, r.28 of the Rules of the Superior Courts or under the inherent jurisdiction of the Court. Hedigan J. acceded to that application and dismissed the proceedings: (See Keohane v. Hynes & anor [2009] IEHC 601). Mr. Keohane appealed to this Court against that finding. It also appears that Hedigan J. made an order striking out as being bound to fail the proceedings not only as against Grehan and Partners but also against Mr. Hynes. It would appear that no application had been brought by Mr. Hynes seeking such a strike out. In those circumstances, it is said that there could have been no proper basis on which the claim against Mr. Hynes could have been struck out in any event. This side issue is one to which it will be necessary to turn in due course.

1.4 In addition, in the context of this appeal, Mr. Keohane sought leave to introduce additional evidence in the form of what is said to be a recording of a conversation between his wife and a solicitor in the firm of Grehan and Partners.

1.5 At the conclusion of the hearing, and having taken some time to consider the matter, the Court informed the parties that the appeal as and between Mr. Keohane and Grehan and Partners would be allowed and that the order of Hedigan J. dismissing the proceedings as against Grehan and Partners would be vacated. The Court indicated that it had reached that conclusion without needing to address the question of additional evidence for, as the Court noted, it was satisfied that, on the basis of the evidence before the High Court, the proceedings should not have been dismissed. It was not, therefore, necessary to determine the question of whether, had a different conclusion been reached, it would have been appropriate to admit the additional evidence concerned. Other than recording the nature of that application to admit additional evidence for the record and noting the issues which thereon arose, this judgment, which sets out the reasons why I supported the Court’s view as thus announced, will not seek to express any view on the additional evidence question. Against that background, it is necessary to record the issues which arose at the hearing.

The Issues

2.1 The first question which it might, of course, have been necessary to address was as to whether the additional evidence should be admitted. It was argued on behalf of Grehan and Partners that the criteria for the admission of fresh evidence on appeal, as identified in the jurisprudence in that regard, had not been met.

2.2 So far as the substantive issue on the appeal is concerned, it was accepted by both parties that the jurisdiction to dismiss on the basis of being bound to fail is to be sparingly exercised. It might be said that there was a minor issue between the parties as to the precise application of that jurisprudence to certain types of what might be called “documents cases” and also as to the extent to which this case can properly be regarded as such a documents case. In fairness, that question arose more in the context of the argument raised on behalf of Mr. Keohane concerning the approach of the trial judge rather than on the argument before this Court.

2.3 It was urged on behalf of Mr. Keohane that the trial judge had impermissibly reached conclusions of fact on an application to dismiss. Rather, it was said, the trial judge should have accepted, for the purposes of the application to dismiss, that the facts were as averred to in the affidavit evidence filed on his behalf. Against the background of those issues, it is first necessary to refer to the judgment of the trial judge.

The High Court Judgment

3.1 Having set out a chronology of the case, Hedigan J. cited from the judgment of Costello J. in Barry v. Buckley [1981] I.R. 306 to effect that a jurisdiction to strike out proceedings exists under both O. 19 r. 28 and under the inherent jurisdiction of the court. The trial judge then turned to examine the evidence to see if there was any evidential support for the allegations made on behalf of Mr. Keohane. Hedigan J. found that there was no evidence to support the contention that Mr. Keohane had contracted with Mr. Hynes in an individual capacity only and not with Studley. The trial judge placed particular reliance on a letter of the 17th August, 2002, from Mr. Keohane to Grehan and Partners, in coming to this conclusion. Consequently, Hedigan J. held that this conclusion cut “through the heart of his claim against the first named defendant.”

3.2 The trial judge then moved on to the consequences of this finding for Grehan and Partners. He examined the possibility that Mr. Keohane might still be able to sustain a claim against his solicitors on the following two grounds:

(a) That Grehan and Partners failed to ensure that the contract contained a personal guarantee which would have guaranteed payment to Mr. Keohane; and

(b) That Grehan and Partners failed generally to ensure that Mr. Keohane received the amount due to him under the contract.

Hedigan J. held that neither of these grounds was sustainable, even on Mr. Keohane’s version of events, as Mr. Keohane’s version was found to be dependent on the contention that the agreement reached was of a “fundamentally different nature” to that found by the Court. The trial judge concluded:

“It is clearly impossible to run the case on this basis. In light of this, I am satisfied that this is an appropriate action in which to exercise the Court’s inherent jurisdiction and exceptional jurisdiction to strike out the proceedings. The continuation of the case can only result in the expansion of the associated costs and the continued impugnment of the second named defendant’s professional reputation.”

3.3 It is next appropriate to turn briefly to the issue of new evidence.

New Evidence

4.1 By Notice of Motion dated the 20th September, 2011, Mr. Keohane applied to adduce additional evidence in the form of a tape recording (and transcript of that recording) which purports to record a conversation in May 2001 between Mr. Keohane’s wife and Mr. Malachy O’Callaghan, a solicitor in the firm of Grehan and Partners. Mr. Keohane alleges that the contents of this recording/transcript undermines the account of events given by Mr. O’Callaghan in his affidavit, and confirms his own account of events.

4.2 Order 58, rule 8 of the Rules of the Superior Courts provides that the Supreme Court has full discretionary power to receive further evidence on questions of fact. However, if the new evidence sought to be tendered was in existence before the date of the decision in the High Court, such evidence should normally only be admitted on special grounds and the leave of the Court must be obtained. Mr. Keohane sought to have this new evidence admitted in the interests of justice. He additionally argued that his case on this point is outside the established jurisprudence as the High Court judgment was not reached after a final trial on all the issues but rather on a motion in which it was asserted that the case was bound to fail.

4.3 Grehan and Partners relied on the judgment of this Court in Murphy v. Minister for Defence [1991] 2 I.R. 161, where Finlay C.J. posited the following three criteria for the admission of new evidence:

“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for the use at the trial;

The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

It was said that these criteria have been applied by the Supreme Court on numerous occasions since, including in McMullen v. Clancy (No.2) [2005] 2 IR 445, and McGrath v. Irish Ispat Ltd [2006] 3 IR 261. Grehan and Partners also pointed to the dicta of O’Donnell J. in Emerald Meats Ltd v. Minister for Agriculture, Ireland and the Attorney General [2012] IESC 48 for the proposition that these criteria are to be strictly applied. Finally, it was contended that an even stricter test applies where the evidence sought to be adduced is not evidence of facts relevant to an issue in the action but rather evidence which goes to the credibility of a witness.

4.4 It was argued on behalf of Mr. Keohane that the jurisprudence to which I have referred does not apply to the fullest extent in cases where it is sought to dismiss proceedings on the basis of their being bound to fail. In that context, reliance was placed, by analogy, on the approach of the courts to the dismissal of cases which do not disclose a cause of action on the pleadings. For instance, in Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425, the Supreme Court, per McCarthy J., stated at p. 428:

“By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to view that if the statement of claim admits of amendment which might, so to speak, save it and the action founded it, then the action should not be dismissed.”

4.5 The question which might have arisen was as to whether, by analogy, it might be said that the Court should lean in favour of allowing additional evidence to be introduced in an appeal involving an application to dismiss as being bound to fail where there is a realistic possibility that the evidence in question might provide a legitimate factual basis for the claim and, thus, save it from being dismissed without a full trial.

4.6 Whatever may be the merits of those arguments concerning the test by reference to which it might be appropriate to admit new evidence on appeal in a case involving an application to dismiss as being bound to fail, and whatever might have been the merits of the application to admit new evidence in this case, it seemed to me to be clear that it would only be necessary to consider whether it was appropriate to admit new evidence if the Court came to the conclusion that Hedigan J. was correct to dismiss the proceedings against Grehan and Partners as being bound to fail on the basis of the evidence which was before him. The only basis on which the additional evidence was sought to be tendered (as confirmed by counsel for Mr. Keohane) was to bolster a contention that the claim was not bound to fail in the event that the Court agreed with Hedigan J. that the proceedings could properly be regarded as being bound to fail on the basis of the evidence which was before the High Court. It was for that reason that I supported the Court’s finding that it was unnecessary to consider whether new evidence ought be admitted, for I fully agreed with the Court’s view that the proceedings could not be said to be bound to fail even on the basis of the evidence which was before the High Court.

4.7 Against that background, it is appropriate to set out the reasons why I supported the Court’s view that the proceedings had not been shown to be bound to fail

Were the proceedings bound to fail?

5.1 It is important, in that context, to identify the real issue which arises in these proceedings at least insofar as they involve Mr. Keohane’s claim against Grehan and Partners. That claim is to the effect that Grehan and Partners were negligent in the way in which they handled the transaction concerning the share sale. In particular, it is said that the instructions given to Grehan and Partners were that an agreement should be entered into with Mr. Hynes personally, and that Grehan and Partners did not advise Mr. Keohane that the written contract presented for signing was with a limited liability company. In addition, it is said that Grehan and Partners did not advise as to the presence and effect of certain other clauses in the share purchase agreement which, it is argued, fell well short of protecting Mr. Keohane’s interests. It goes without saying that, at least at the level of principle, such a claim could succeed. If a person instructs a solicitor to procure that he enter into an agreement with an individual and the solicitor, and without properly advising him of the fact, procures that he signs a contract with a limited liability company instead, then there may be a claim in negligence although there might, of course, be important questions as to what the consequences of any such negligence might be. As already noted, it is said that the way in which the agreement was structured did not properly protect Mr. Keohane and, in particular, appeared to contemplate that some of the payments to be made to him for the sale of his shares in the company were to come out of the sale proceeds of the company’s assets. In that sense, it was argued that the contract may well have been in breach of s. 60 of the Companies Act 1963. In that, and other respects, it was argued that the contract was defective to Mr. Keohane’s disadvantage.

5.2 I do not read the judgment of the trial judge as taking the view that such claims might not, at least in theory, be successful. Rather, the view which the trial judge appears to have taken is that the necessary factual basis for such a claim could not be established. As noted above, Hedigan J. concluded that Mr. Keohane’s claim was fundamentally premised on the contention that he was understood that he was contracting solely with Mr. Hynes, and not Studley. Having held there was no evidence to sustain this contention, the judge ruled it was “impossible to run the case on this basis”.

5.3 It is on that issue that it is necessary to examine the evidence. Mr. Keohane, in his affidavit of the 18th March, 2009, denied that he was aware of the fact that he was contracting with a limited liability company, and affirmed that it was his belief that he was contracting with Mr. Hynes personally. He further claimed that he was so advised both by Mr. Hynes and by Grehan and Partners. On the date the agreement was concluded, Mr. Keohane stated that portions of the agreement were read to him, although he was not allowed to read the document personally. It is said that the document was immediately taken away from him when he signed it and that he was refused a copy. The account of Ms. Betty Keohane, the wife of Mr. Keohane, who was also present at the signing of the agreement in 2000, as set out in her affidavit of the 17th July, 2009, is almost identical to that of Mr. Keohane. This version of events is denied by Grehan and Partners, who have given an alternative account in the affidavits of Malachy O’Callaghan.

5.4 The real question was as to whether, based on that evidence, it can fairly be said that Mr. Keohane’s claim as against Grehan and Partners is bound to fail on the facts.

5.5 At this stage, it is important record what, in my view, was a very significant development which occurred at the hearing of the appeal. As noted earlier, the clear focus of the judgment of the trial judge was on the question of whether the allegation that Mr. Keohane did not know that he was contracting with Studley was capable of being sustained. As also noted, Hedigan J. concluded that that allegation could not be sustained and that an inability to sustain that allegation rendered the proceedings bound to fail.

5.6 However, at the hearing of the appeal, counsel on behalf of Grehan and Partners acknowledged that, in accordance with the jurisprudence to which I will shortly refer, the Court would have to accept, for the purposes of this application, that Mr. Keohane would be able to sustain the factual basis of his argument. Likewise, counsel accepted that there were other potentially sustainable allegations of negligence concerning the way in which the contract was drafted. Thus, to a very real extent, it appeared to me that counsel largely abandoned the reasoning of the trial judge but sought to justify the trial judge’s ultimate conclusions on a different basis. While it will be necessary to explore that basis in more detail in due course, it can, in summary, be said that the focus of the argument presented to this Court was that there was no sustainable basis on which Mr. Keohane would be able to establish any adverse consequences of any wrongdoing which might be proven. On that basis, it was said that a wrong without damage was not actionable and that proceedings in which it was impossible that damage could be established were, in substance, bound to fail.

5.7 It seemed to me to follow, therefore, that counsel accepted, to a very significant extent indeed, the principal criticism which was made by Mr. Keohane of the trial judge’s judgment, being that the trial judge had strayed impermissibly into issues of fact.

5.8 Given the approach which was adopted by the trial judge and in the light of the argument as it developed, it does seem to me to be important, at this stage, to revisit and restate the undoubted limitations which exist, in the context of a motion to dismiss as being bound to fail, on seeking to determine facts. I, therefore, turn to the jurisprudence.

Jurisprudence

6.1 In my High Court judgment in Salthill Properties Limited & anor v. Royal Bank of Scotland plc & ors [2009] IEHC 207, which was approved in the recent judgment of this Court in Lopes v. Minister for Justice Equality & Law Reform [2014] IESC 21, I explained the distinction between the jurisdiction which arises under O.19, r. 28 and that which arises under the inherent jurisdiction of the court. At para. 3.12. of Salthill Properties, I said the following:

“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.”

6.2 However, it is important to emphasise that the extent to which it is appropriate for the Court to assess the evidence and the facts on a motion to dismiss as being bound to fail is extremely limited. In that context, it is, perhaps, appropriate to go back to one of the earlier important cases on this topic being Jodifern v. Fitzgerald [2000] 3 IR 321. There, Barron J. observed at p. 332:

“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.”

He then added at p. 333:

“In my view, a defendant cannot succeed in an application to strike out proceedings on the basis that they disclose no reasonable cause of action or are an abuse of the process if the court on the hearing of such application has to determine an issue for the purpose of deciding whether the plaintiff could possibly succeed in the action. It is not the function of the court to determine whether the plaintiff will succeed in the action.

The function of the court is to consider one question only, was it proper to institute the proceedings? This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce. If the claim could never have succeeded, then the proceedings should be struck out. There is no room for considering what evidence should be accepted or how it should be interpreted. To do the latter is to enter on to some sort of hearing of the claim itself.”

In that same case, Murray J., in explaining the need for caution in such an application, stated at p. 334:

“The reason for such caution is self-evident. The making of an order staying or dismissing the proceedings on the basis of such inherent jurisdiction deprives the plaintiff of access to the courts for a trial of his or her action.

The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings.”

6.3 In like vein, Birmingham J., in Burke & Anor v. Anglo Irish Bank Corporation PLC & Anor [2011] IEHC 478, emphasised that a court cannot seek to resolve conflicts of fact in an application to dismiss as being bound to fail, but rather is required to accept the facts as deposed to on behalf of the plaintiff.

6.4 More recently still, in Lopes, I said the following at para. 2.6 of my judgment:

“At the same time, it is clear that certain types of cases are more amenable to an assessment of the facts at an early stage than others. Where the case is wholly, or significantly, dependent on documents, then it may be much easier for a court to reach an assessment as to whether the proceedings are bound to fail within the confines of a motion to dismiss. In that context, it is important to keep in mind the distinction, which I sought to analyse in Salthill Properties, between cases which are dependent in themselves on documents and cases where documents may form an important part of the evidence but where there is likely to be significant and potentially influential other evidence as well.”

The passage referred to above from Salthill Properties as to the various types of documents cases begins at para. 3.9 of the High Court judgment and is as follows:-

“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.”

6.5 It is important, for the avoidance of any doubt, that the overall principle be clearly stated. As pointed out in many of the authorities, not least in the judgment of Murray J. in Jodifern, the underlying basis of the jurisdiction to dismiss as being bound to fail stems from the court’s inherent entitlement to prevent an abuse of process. Bringing a case which is bound to fail is an abuse of process. If it is clear to a court that a case is bound to fail, then the court has jurisdiction to prevent that abuse of process by dismissing the proceedings. However, as again noted by Murray J. in Jodifern, whatever might or might not be the merits of some form of summary disposal procedure, an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis.

6.6 It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff’s case is very weak or where it is sought to have an early determination on some point of fact or law. It is against that background that the extent of the court’s entitlement to look at the facts needs to be judged.

6.7 I am in full agreement with the views expressed by Birmingham J. in Burke. Where there is evidence placed before the court on affidavit on behalf of a plaintiff which, if accepted at trial, might arguably lead to the plaintiff succeeding, then that is an end of the matter. But it does not necessarily follow that a plaintiff even has to put evidence of that type before the court. In Lopes, I observed at para 2.5:

“In order to defeat a suggestion that a claim is bound to fail on the facts, all that a plaintiff needs to do is to put forward a credible basis for suggesting that it may, at trial, be possible to establish the facts which are asserted and which are necessary for success in the proceedings. Any assessment of the credibility of such an assertion has to be made in the context of the undoubted fact, as pointed out by McCarthy J. in Sun Fat Chan (at p. 428), that experience has shown that cases which go to trial often take unusual turns on the facts which might not have been anticipated in advance.”

I commented to similar effect in Salthill Properties at para 3.15:

“…it seems to me that I should assess the factual allegations …, 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 applicants] have established that it is impossible that any such evidence will be produced at trial.”

6.8 What the Court can analyse is whether a plaintiff’s factual allegation amounts to no more than a mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward. Likewise, the Court can go into documentary facts where the relevant documents govern the legal relations between the parties or form the only possible evidential basis for the plaintiff’s claim (as in Lopes). As Barron J. noted in Jodifern, a court can look at a contract and it may become clear beyond argument as to what that contract means. On that basis, it may follow that a plaintiff’s claim may be bound to fail. But there may be cases where, notwithstanding the text of a contract, facts are asserted and backed up either by evidence or by the possibility that evidence might be found, which might lead to the contract being construed in some different way or the consequences for the wrong alleged in the proceedings being differently considered. In such cases, as Barron J. made clear, the case must go to trial.

6.9 In summary, it is important to emphasise the significant limitations on the extent to which a court can engage with the facts in an application to dismiss on the grounds of being bound to fail. In cases where the legal rights and obligations of the parties are governed by documents, then the court can examine those documents to consider whether the plaintiff’s claim is bound to fail and may, in that regard, have to ask the question as to whether there is any evidence outside of that documentary record which could realistically have a bearing on the rights and obligations concerned. Second, where the only evidence which could be put forward concerning essential factual allegations made on behalf of the plaintiff is documentary evidence, then the court can examine that evidence to see if there is any basis on which it could provide support for a plaintiff’s allegations. Third, and finally, a court may examine an allegation to determine whether it is a mere assertion and, if so, to consider whether any credible basis has been put forward for suggesting that evidence might be available at trial to substantiate it. While there may be other unusual circumstances in which it would be appropriate for the court to engage with the facts, it does not seem to me that the proper determination of an application to dismiss as being bound to fail can, ordinarily, go beyond the limited form of factual analysis to which I have referred.

6.10 It is an abuse of process to bring a claim based on a breach of rights or failure to observe obligations where those rights and obligations are defined by documents and where there is no reasonable basis for suggesting that the relevant documents could establish the rights and obligations asserted. Likewise, it is an abuse of process to maintain a claim based on facts which can only be established by a documentary record and where that record could not sustain any necessary part of the factual assertions which underlie the case. Finally, it is an abuse of process to maintain a claim based on a factual assertion in circumstances where there is no evidence available for that assertion and, importantly, where there is no reasonable basis for believing that evidence could become available at the trial to substantiate the relevant assertion. However, the bringing of a claim based on a factual assertion for which there is or may be evidence (even if the defendant can point to many reasons why it might be argued that a successful challenge could be mounted to the credibility of the evidence concerned) is not an abuse of process. It is for that reason that a court cannot properly engage with the credibility of evidence on a motion to dismiss as being bound to fail and it is for that reason that the very significant limitations which I have sought to identify exist in relation to the extent to which a court can properly engage with the facts on such an application.

6.11 Against the background of that analysis, it seems to me that the argument raised on behalf of Mr. Keohane, to the effect that the trial judge had trespassed into the facts beyond the limits which I have sought to identify, was well made. The points noted by the trial judge, including the correspondence to which he referred, are all matters which, doubtless, can be put to Mr. Keohane and his witnesses at trial and may, depending on the view which the trial judge takes of those points and the response of any relevant witnesses to them, be properly taken into account by the trial judge in assessing the credibility of the evidence presented by and on behalf of Mr. Keohane. But those points are no more than that. They are issues which may go to credibility. Credibility is for the trial and not for a motion to dismiss as being bound to fail. Against that background, it is, perhaps, not surprising that counsel for Grehan and Partners conceded that this application should progress on the assumption (despite it being strenuously denied by his clients) that Mr. Keohane would be able to establish a breach of duty or breach of contract on the part of Grehan and Partners in relation both to the argument that the contract should have been with Mr. Hynes personally and also as to what was said to be the inadequacies of the contract itself. In substance, counsel’s argument, in light of that concession, was that there was no sustainable basis on which Mr. Keohane could establish any adverse consequences of any such breach. I, therefore, turn to that question.

Could there be consequences?

7.1 Three main issues arose under this heading. First, there was the question as to whether this Court should entertain that argument in the first place. Senior counsel for Mr. Keohane indicated that his junior (who had appeared at the hearing before Hedigan J.) had confirmed that an argument along those lines had not been addressed to the High Court at all. Counsel for Grehan and Partners (who likewise had not appeared in the High Court) indicated that he could not contest that assertion. The Court was required, therefore, to act on the assumption that this was a new point not raised in the High Court. Counsel for Grehan and Partners sought to characterise the point as a variation on the argument made before Hedigan J. I did not agree. There is a very significant difference indeed, in my view, between an assertion that a plaintiff’s claim is bound to fail because he cannot establish a breach of duty or breach of contract, on the one hand, and an assertion, accepting that the plaintiff could establish, on the basis of the plaintiff’s case, such breaches that no adverse consequences could sustainably be alleged.

7.2 This Court, in Lough Swilly Shellfish Growers Co-Operative Society Ltd & anor v. Bradley & anor [2013] 1 I.R. 227, set out the basis for allowing a new argument to be made on appeal. At para. 27 of the judgment, O’Donnell J. said:-

“There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument to be made.”

7.3 As O’Donnell J. pointed out, there are a variety of factors which can properly be taken into account. However, one important question is the extent to which it might be reasonable to assume that different or additional evidence might have been presented at the trial had the new argument sought to be raised on appeal been then broached. Like consideration seems to me to apply on a motion to dismiss. Certain arguments were put forward on this appeal by counsel on behalf of Mr. Keohane as to how he might be able to maintain a claim in damages notwithstanding the points made on behalf of Grehan and Partners. It might well have been possible to tender evidence before the High Court in relation to some of those matters if the issue of consequences had been raised there. In those circumstances, it seemed to me that this case was at the end of the spectrum where the Court should strongly lean against allowing a new argument to be raised on appeal. However, I was, in any event, persuaded that the argument on consequences was not well founded. That leads to the second point.

7.4 In essence, the argument put forward on behalf of Grehan and Partners was this. The contract was entered into on the 27th September, 2000. On the basis of his affidavit evidence, Mr. Keohane accepted that, by January or February of the following year, he was aware that the written contract was with Studley. The scheme provided for in the contract had a completion or closing date of the 31st March, 2001, by which time the full purchase price was required to be paid over and in return share transfers and other supporting documentation were to be provided to the purchaser.

7.5 Counsel argued that this was, therefore, clearly, a so-called “no transaction” case (for which see, for example, ACC Bank v. Johnson [2010] IEHC 236). On that basis, it is said that the proper analysis of any adverse consequences of the alleged negligence or breach of contract required one to look at the situation on the basis that, had Mr. Keohane been properly advised, he would not have entered into the contract at all. On that basis, it was argued that there could have been no adverse consequences for Mr. Keohane. However, counsel for Mr. Keohane suggested in argument that there was a credible basis for believing that, given that there were many meetings between Mr. Hynes, Grehan and Partners and Mr. Keohane, a contract could have been procured which was with Mr. Hynes personally and which did not have the alleged failings present in the contract as actually entered into. It is no part of the function of this Court to express any view on whether such an argument might succeed. Indeed, it might well be that, had the consequences issue been raised in the High Court, some additional evidence might have been put before the Court on Mr. Keohane’s behalf in that regard. I was, however, satisfied that it did not necessarily follow from the accepted facts of this case that this would be found to be a “no transaction” case. At a minimum, I was satisfied, therefore, that it is not clear (even on the basis of what were said to be uncontested facts) that Mr. Keohane might not be able to establish adverse consequences. On that basis alone, I was satisfied that the claim was not bound to fail. There may, indeed, be other bases on which the consequences argument might be met on behalf of Mr. Keohane at trial. But all those issues are ones for a trial and not for a motion to dismiss. That leads to the third point.

7.6 It did not seem to me to be necessary to reach a final conclusion on whether, at the level of principle, it might be appropriate to dismiss as being bound to fail a claim where, as here, it is accepted that there is a stateable basis for establishing breach of duty or breach of contract but where the only basis put forward for suggesting that the claim was bound to fail concentrated on consequences.

7.7 Likewise, I was satisfied that it was not necessary to reach a final conclusion on whether it was appropriate to permit what I was satisfied was a new argument to be raised for the first time on appeal since I was satisfied that that new argument would not avail Grehan and Partners in any event.

Conclusions

8.1 For those reasons, I was satisfied that the trial judge had wrongly engaged with the facts in an impermissible way and that the trial judge’s reasoning in dismissing these proceedings as against Grehan and Partners as being bound to fail could not be sustained.

8.2 Even on the basis of permitting (without deciding that it was appropriate so to do) a new argument to be raised, I was not satisfied that the lack of consequences argument put forward on behalf of Grehan and Partners was such as made these proceedings bound to fail.

8.3 Finally, it is necessary to return to the question of the position in respect of the claim against Mr. Hynes. I note that Mr. Hynes appears to have been served with the notice of appeal. It seems clear that an order to dismiss the claim as against Mr. Hynes could not validly have been made on an application brought solely by Grehan and Partners in circumstances where no like application was brought before the High Court on behalf of Mr. Hynes. Subject to clarifying with counsel as to the status of the appeal against the order insofar as it related to the claim against Mr. Hynes (given that there was no appearance on behalf of Mr. Hynes at the appeal) I would be minded to allow that aspect of the appeal as well.

Kelly & Anor -v- Garda Commissioner & Ors

[2015] IEHC 19

JUDGMENT of Kearns P. delivered on the 23rd day of January, 2015

This is an application brought by the defendants pursuant to Order 19 rule 28 of the Rules of the Superior Courts seeking to have the Plaintiff’s claim dismissed or struck out on the grounds that the pleadings disclose no reasonable cause of action and that, on the basis of existing law, the Plaintiff’s claim is bound to fail.

The plaintiff is a former miner who resides with his two children at Ballintlea, Sixmilebridge, Co. Clare. He is the lawful husband of Sylvia Roche Kelly who was born on the 7th December, 1974 and who was murdered by one Gerry McGrath on the 8th December, 2007. Letters of Administration in the Estate of Sylvia Roche Kelly were granted to the plaintiff on the 23rd April, 2008. The present claim is one for damages brought pursuant to the provisions of Part IV of the Civil Liability Act 1961 by the plaintiff on his own behalf and on behalf of his two children, aged respectively twenty and eleven years, and other family members of the deceased.

In these proceedings, the plaintiff claims that the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact that he was at large and on bail when he should not have been and that the plaintiff is in the particular circumstances entitled to maintain an action in negligence against the various defendants herein.

……

CONCLUSION

As already stated, hard cases make bad law. In this case, with the benefit of hindsight, one finds it difficult to avoid strong feelings of frustration and anger over how matters were handled by An Garda Síochána. The failure to advise the judges called upon to address issues of bail in respect of a number of serious incidents was both negligent and disgraceful. It deprived those judges of the opportunity to properly evaluate the facts in relation to McGrath’s ongoing liberty, and the Court is satisfied that any reasonably informed judge or lawyer would have taken the view that bail would have been refused or revoked if the full facts had been made known to either court. Of course it is possible – given that it was a matter for judicial determination – that even if informed of the true position, there remained an outside possibility that, subject to strict bail conditions, bail might have been granted, but, for the purposes of this judgment, I am taking the view that it would not.

However, and even assuming this to be one of the worst cases of Garda negligence imaginable, it could not be said, in my view, that there existed in this case the requisite degree of proximity between the unfortunate deceased and her killer or that the death she met at his hands in a hotel bedroom was reasonably foreseeable from any of the information available in this case. The prior incidents of an assault on a female taxi driver at a location at the other end of the country and the abduction of a young girl in Tipperary on the 9th October, 2007 could not in the view of the Court have met a foreseeability test (even had it been pleaded) insofar as the death of Sylvia Roche Kelly is concerned. The victim and her assailant were unknown to each other and to say that requirements of proximity and foreseeability were met merely because of the gender of the deceased is not, in my view, a sustainable proposition.

Still less can it be said that in this case An Garda Síochána assumed some sort of special responsibility towards Sylvia Roche Kelly as distinct from the public in general. The facts of this case are, in my view, clearly distinguishable from those addressed by Peart J. in the Smyth case.

To the extent that the European Court of Human Rights may in the past have taken a somewhat different view from those expressed by the House of Lords in the Hill case, notably in the decision in Osman v. United Kingdom [1998] 29 EHRR 245, the same topic was revisited in their decision in Z. v. United Kingdom [2002] 34 EHRR 3 where the court concluded (at para. 100):-

“… The Court considers that its reasoning in the Osman judgment was based on an understanding of the law of negligence which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries plc and as recently analysed in the case of Barrett v. Enfield includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law.”

Hedigan J., himself a distinguished former member of the European Court of Human Rights, felt able to state at para 6.5 of his judgment in the L.M. case:-

“In the Z case the European Court of Human Rights reviewed the jurisprudence of the House of Lords on actions for police negligence. The court held that in light of developments in the domestic courts it was clear that what was involved in such cases was not a blanket immunity from suit which the police enjoyed, but rather that under substantive domestic law there existed no duty of care owed by the police in their investigatory and prosecutorial functions. This it was held was in accordance with the convention.”

The Court was referred to a summary note of a judgment delivered post Osman by a divisional chamber of the European Court of Human Rights in the case of Maiorano & Ors. v. Italy (Application No. 28634/06) where the state was held responsible in respect of a double murder committed by a dangerous offender, Angelo Izzo, while on day release.

The case in question concerned the obligation of the Italian judicial system to afford general protection to society against potential danger from a person who had been convicted for a violent crime. The court did not find fault in general with the arrangements in Italy for the resettlement of prisoners. The system had a legitimate aim and provided for sufficient safeguards. However, the manner in which that system had been applied in Mr. Izzo’s case was questionable. The court noted that the positive factors which had led the Palermo sentence execution court to grant day release, in particular the favourable reports by probation officers and psychiatrists, had been counterbalanced by many indications to the contrary. Throughout his imprisonment, Angelo Izzo had in fact regularly committed criminal offences and his behaviour had shown that he had a tendency to disrespect the law and authority. In view of the dangerousness of a repeat offender who had been convicted of exceptionally brutal crimes, those circumstances should have led the sentence execution court to be more prudent. Secondly, the court noted that the public prosecutor of Campobasso had been promptly made aware of the fact that Angelo Izzo, once granted day release, had re-established contacts with the criminal underworld and was actively planning criminal acts. Despite the fact that it had taken this danger seriously, and had even ordered police surveillance, the public prosecutor’s office had not informed the sentence execution judge with a view to the possible withdrawal of the day release scheme.

The court took the view that the granting by the Palermo sentence execution court of day release to Angelo Izzo, despite his criminal record and behaviour in prison, together with the failure by the public prosecutor’s office of Campobasso to forward information on his criminal activities to the sentence execution judge, had constituted a breach of the duty of care required by Article 2 of the Convention. Accordingly, the court held unanimously that there had been a violation of Article 2 under its substantive head. The court awarded €10,000 to the father of the man whose wife and daughter had been murdered by Izzo, the father being a prisoner whom Izzo had known in Palermo prison. Other relatives were awarded €5,000 each.

This finding was made against a background where the applicants had filed a criminal complaint against the police prosecutors who, they allege, should have forwarded to the sentence execution courts information in their possession from two fellow prisoners of Izzo about his “suspicious behaviour” and in particular “his intention to commit a murder”. Those complaints had not been acted upon and no disciplinary action had been taken against those prosecutors. It was in these circumstances that it was held that the state had not entirely fulfilled its positive obligation to ascertain whether any responsibility could be imputed to its agents in respect of the double murder.

It seems to this Court that this case can not be taken as speaking directly to the facts of the case before this Court. The Italian case is one which arose under a different criminal and judicial structure and was one where the offender had been convicted of similar offences in the past, was serving a prison sentence, and was released under a day release system against a backdrop where relevant authorities had failed to act on specific warnings of his declared intention to commit further crimes. It is not a case, nor does it purport to be a case, which could be taken as rolling back the considered view of the full Court expressed in the “Z Case” as to the adequacy of domestic law in a common law jurisdiction. The summary provided to this Court does not in any way address the issue of an unconvicted person being at large due to communications failures, negligent or otherwise, which might have conveyed to the relevant judge under a different legal system information which was relevant to its decision whether or not to grant bail.

While the threshold for success in an application under order 19 is a high one, the underlying facts of this case are not in dispute, nor has it been shown that discovery could lead to the establishment of any facts which might satisfy the requirements of the first two limbs of the test in Glencar Explorations plc v. Mayo County Council [2002] 1 IR 84.

The Court is therefore compelled, notwithstanding the many disturbing aspects of this case which hopefully will result in an appropriate investigation elsewhere, to dismiss the plaintiff’s claim, not on the basis of some supposed ‘blanket immunity’ but because long established common law principles whereby a duty of care is deemed to arise are not present on the facts of this most unfortunate case.

Kenny -v- Trinity College & Anor

[2007] IESC 42 (15 October 2007)

Judgment by: Fennelly J.

The appellant has been engaged for a number of years in legal proceedings in which he has sought, entirely without success, to have declared invalid a decision of An Bórd Pleanála granting planning permission to Trinity College, the Respondent on this appeal, for a development consisting of new student residences at Trinity Hall, Dartry, Dublin 6. The development has long since been completed.

On 15th December 2000, the High Court (McKechnie J) refused the appellant leave to apply for judicial review of that decision. He also refused a certificate allowing him to appeal that refusal of leave to this Court.

On 7th November 2002, the appellant instituted the present action by plenary summons in the High Court. In the action he seeks an order directing the rehearing of his judicial review application. Effectively and in substance, the relief he seeks in the action is an order setting aside the order of McKechnie J.

In the plenary summons, he pleads that McKechnie J, in refusing the application for leave, had referred to the location of boilerhouse facilities proposed by the Respondent, as developers. In a very brief statement of claim, he alleges that the Respondent, through its counsel, had misled the High Court during the hearing of the leave application. The misleading is alleged to have consisted of the fact that the Respondent, as developers, had submitted “certain architectural plans and drawings” relating to the development purporting to show that boilers would be installed in certain places identified as plant rooms, but had failed to acquaint the High Court with the full facts of an application which it had also made for “the location of some of the aforesaid boilers in the basement of one of the aforesaid buildings to another section of the then Dublin Corporation namely the Fire Prevention Section.”

The entire substance of the case pleaded by the appellant is that the order of McKechnie J, refusing him leave to apply for judicial review of the decision of An Bórd Pleanála granting planning permission, should be set aside because it was procured by the single act of alleged misleading mentioned in the preceding paragraph.

The Respondent in March 2003 applied by motion in the High Court for an order pursuant to Order 19 rule 28 of the Rules of the Superior Courts holding that the proceedings be struck out on the grounds that they were frivolous and vexatious and that they disclosed no reasonable cause of action and, alternatively, that they were an abuse of process and in excess of jurisdiction.

The application to strike out was grounded on two affidavits. One was sworn by Mr Tom Merriman, acting project officer of the Respondent. The other was sworn by Ms George Boyle, an architect in the firm of Murray O’Laoire, Architects, Fumbally Court, Dublin 8. Ms Boyle described herself as acting Project Architect engaged by the Respondent for the development. Mr Merriman deposed that the appellant was seeking to have “re-examined” matters already determined by the High Court on a judicial review application. He described the proceedings as an abuse of process. He also dealt at length with the appellant’s complaint regarding the alleged misleading information regarding the proposed location of boiler facilities. Given the nature of the present application, it is unnecessary and inappropriate to give any account of that issue or to comment on its merits. For present purposes, it suffices to note that the appellant alleges that the Respondent misled the High Court regarding the position of boilerhouse facilities in the proposed development and that the allegation is strongly contested. Ms Boyle, in her affidavit, denied that the Respondent had misled the High Court at the time of the judicial review application.

The appellant swore an affidavit, in which he contested that of Ms Boyle at great length. He accused her of seeking to justify the actions of the Respondent in misleading the Court and of herself making misleading choice of words, and of being disingenuous, naïve, self-serving and scarcely credible.

The High Court (Finnegan P), by its order of 2nd April 2003, dismissed the Respondent’s application to have the proceedings struck out. Instead, Finnegan P laid down time limits for the delivery of further pleadings in the action. He granted liberty to the appellant to deliver an amended statement of claim, which the appellant has not in fact done.

The Respondent, by notice of appeal dated 28th April 2003, appealed to this Court against the order of the High Court (Finnegan P). That appeal came on for hearing on 20th June 2003, before a Court composed of Murray J (as he then was), Geoghegan J and McCracken J. The Court, in an ex-tempore judgment delivered by Murray J, allowed the appeal and instead made the order sought by the Respondent that the appellant’s claim against the Respondent be struck out as disclosing no reasonable cause of action pursuant to Order 19, rule 28 of the Rules of the Superior Courts.

The judgment of the Court (Murray J) stated that the case of the appellant was that the Respondent had been “guilty of conscious and deliberate dishonesty amounting to fraud.” The judgment pointed out that none of those elements had been pleaded: “An allegation of misleading information or a simple statement to that effect is not sufficient.” At a later point, the judgment stated:

“None of the elements of any alleged fraud are stated other than that certain matters were not disclosed without indicating on what basis the failure to disclose constituted a breach of duty as to amount to a dishonest or fraudulent concealment.”

By the present notice of motion dated 15th January 2007, the appellant applies to the Court for an order vacating the order made on 20th June 2003 on the ground of objective bias together with consequential orders.

The application is grounded on an affidavit of the appellant of 17th October 2006. In it he states:

“In the course of the summer 2006, I became aware of the fact that one of the Supreme Court judges who had heard the appeal, namely Murray J., is a brother of a partner in Murray O’Laoire, which had designed the Trinity Hall development, which firm’s name appeared on virtually all the documents which were before the Supreme Court, including affidavits from the project architect, Ms G. Boyle, who is identified in her affidavits as being a member of the Murray O’Laoire firm. Also, the Murray O’Laoire name appeared clearly on all the plans which Ms Boyle exhibited and lodged in both the High Court and the Supreme Court.”

The appellant says that the facts set out in that paragraph are sufficient to establish objective bias. The gravamen of the appellant’s claim is that one of the judges hearing his application was a brother of an architect in the firm of architects which was responsible for the design and execution of the development which is the subject-matter of the proceedings. That firm of architects is alleged to have participated in the concealment of material from the Court.

It must be said with emphasis that it is not for this Court at this point to express any view whatever on the substance of those allegations. I abstain from any consideration of their merits. It is of the utmost importance that this judgment should give no hint of any opinion on that matter.

The Respondent relies on two particular aspects of the facts of the case, which indisputably distance the brother of the judge from the facts of the case. Firstly, the architect mentioned had no involvement whatever with the development in question. He was based in Limerick, not in Dublin. Secondly, the architects are not parties but a member of the firm, operating out of Dublin and having charge of the project, is a witness in the proceedings only.

The present case involves an allegation of objective bias. The appellant has made it clear that he makes no allegation whatever of subjective bias. On the contrary, he made it clear at the hearing that he accepted that the learned judge would have recused himself, if he had been alerted to the situation.

The test for deciding whether objective bias exists in the case of any adjudication has been repeated in slightly different terms in many cases over many years. Some of the best known cases are: State (Hegarty) v Winters [1956] I.R. 320; Dublin Wellwoman Centre Ltd and others v Ireland and others [1995] I.L.R.M. 408; O’Neill v Beaumont Hospital [1990] I.L.R.M. 419; Orange Communications Ltd. v Director of Telecommunications Regulation and another [2000] 4 IR 159; Spin Communications Ltd v Independent Radio and television Commission [1001] 4 I.R. 411; Joyce v Minister for Health and Children and others [2004] 4 IR 293; Landers v Director of Public Prosecutions [2004] 2 IR 363; Bula Ltd. v Tara Mines Limited and others [2000] 4 I.R. 412.

Denham J described the test authoritatively in her judgment in Bula Ltd. v Tara Mines Limited and others. At page 441, she is reported as saying:

“……it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.”

The hypothetical reasonable person is an independent observer, who is not over-sensitive, and who has knowledge of the facts. He would know both those which tended in favour and against the possible apprehension of a risk of bias. Thus he would know that the judge and a senior architect in the responsible firm were brothers, but would also know that the architect brother had no involvement in the development. Counsel for the Respondent did not dispute at the hearing that, if that brother had actually been involved in the facts of the development in the way that Ms Boyle was, the test for objective bias might well be met. However, the hypothetical independent reasonable observer would also know the substance and tenor of the allegation made in the proceedings.

The test of objective bias is expressed in general terms. Its application demands an appreciation of all the circumstances of the individual case, followed by a particularly careful exercise of the faculty of judgement. In his judgment in O’Neill v Beaumont Hospital, cited above, where the allegation was one of pre-judgment bias, Finlay C.J. expressed the view, at page 439, that, in analysing the facts, he should “take the interpretation more favourable where there is ambiguity to the plaintiff than to the defendant..” Whether or not that is a principle of general application, it applies in a special way in the present case, where this Court is asked, in a very real way, to adjudicate on whether one of its own judgments was tainted by objective bias. That fact obliges it, in order to ensure respect for the principle that justice must not only to be done but to be seen to be done, to act with great care and circumspection. It should err on the side of caution.

An important aspect of this case is the substance and character of the allegations being made by the appellant in these proceedings. He alleges that the Respondent engaged in deliberate misleading of the High Court with the result that the Court made an incorrect decision. The affidavits exchanged in the High Court show that the appellant alleges that the firm of architects were implicated in this action by the Respondent.

In his judgment in Orange Communications Ltd. v Director of Telecommunications Regulation and another, cited above, Barron J approved a lengthy passage from the judgment of the Court of Appeal in England (consisting of Lord Bingham C.J., Lord Woolf M.R. and Sir Richard Scott V.C.) in Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000] 2 WLR 870, which contains the following relevant statement:

“……a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case……”

I infer from that passage that the test of objective bias does not necessarily require that the relationship of which complaint is made be between the adjudicator and a party in the case. A witness will suffice. The question is whether a reasonable observer might have a reasonable apprehension that a judge, hearing such allegations being made against the firm of architects in which his brother was a member, although that brother was not in any way directly involved in the subject-matter of the litigation, might find it difficult to maintain complete objectivity and impartiality. Could such an observer be concerned that the allegations were of a nature to cast doubt on the integrity of at least one member of the firm and that a judge should not adjudicate on such a dispute? Applying the most favourable interpretation of the facts from the appellant’s point of view, and bearing in mind that the Court should be especially careful where it is considering one of its own judgments, I believe that the the test of objective bias should be held, in all the circumstances, to be satisfied.

The Court should, accordingly, make an order setting aside the order dated 20th June 2003. No further order is required. The effect of that order is to reinstate the appellant’s appeal from the order of the High Court.

Kilcoyne v. Westport Textiles Ltd. (In Voluntary Liquidation) & Anor

[2006] IEHC 256 (26 July 2006)

Judgment of Finnegan P. delivered on the 26th day of July 2006.

A Plenary Summons in this matter was issued on the 3rd December 2000 against the first named Defendant. The Plaintiff was an employee of the first named Defendant between the years 1970 and 1979 and in that time, the Statement of Claim pleads, he was exposed to excessive noise which has resulted in hearing loss. The Defendant was incorporated in 1961 and went into voluntary liquidation on the 23rd June 1981. In November 2000 it was struck off the Register of Companies but restored to the Register on the 15th June 2002. On the 11th January 2005 the second named Defendant was joined to the action as a Co-Defendant by order of the Master. An amended Statement of Claim was delivered on the 2nd March 2005. The only alterations to the original Statement of Claim consist of the adding to the title of the action of the second named Defendant and of a paragraph describing the second named Defendant as a limited liability company and giving its registered office. Thus on the pleadings the claim against the second named Defendant appears as a claim by an employee against his employer for negligence which is particularised. However correspondence had passed between the Plaintiff’s solicitor and the second named Defendant and its solicitors between the 25th April 2001 and the application to join the second named Defendant as a Defendant and both the Plaintiff and the second named Defendant are fully aware of the true nature of the claim sought to be maintained against the second named Defendant. This is a claim in reliance on the provisions of the Civil Liability Act 1961 section 62 and the decision of the Supreme Court in Michael Dunne v P.J. Whyte Construction Limited (In Liquidation) and Ors 1989 ILRM 803.

The second named Defendant issued a motion on the 6th December 2005 seeking the following reliefs –

(a) An order pursuant to order 63 Rule 9 of the Rules of the Superior Courts appealing the entirety of the order of the Master dated the 11th January 2005 joining the Royal and Sun Alliance Plc as Co-Defendant and substituting _herefore an order refusing the Plaintiff’s application to join the second named Defendant.

(b) In the alternative an order pursuant to the inherent jurisdiction of the Court dismissing the Plaintiff’s claim for want of prosecution and/or delay.

I Further or in the alternative an order pursuant to the inherent jurisdiction of the Court dismissing the Plaintiff’s claim against the second named Defendant on the grounds that the said claim is frivolous and/or vexatious and/or discloses no reasonable cause of action and/or is an abuse of the process of the Court.

(d) Further or in the alternative an order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing the action and/or striking out the Statement of Claim on the ground that it discloses no reasonable cause of action.

The Plaintiff’s claim is one of approximately 140 claims by former employees of the first named Defendant all of whom had ceased to be employees of the first named Defendant from 1980 onwards. Further relief sought in the Notice of Motion was that the order of the Court in these proceedings should bind the Plaintiffs in the other proceedings but this was not persisted in at the hearing of the motion.

On the Affidavits before me it is quite clear that the claim against the second named Defendant as at present constituted and pleaded is unsustainable. I am satisfied that the second named Defendant is entitled to relief under Order 19 Rule 28 that is to have the claim against it struck out on the ground that it discloses no reasonable cause of action. Accordingly I propose to make the order sought.

It was canvassed before me that I should deal with the matter on the basis of the true nature of the claim against the second named Defendant and that the Plaintiff be allowed to further amend his pleadings at this stage to reflect the true cause of action. Should I accede to this the second named Defendant proposes to rely upon delay. Much of the Affidavits before me deal with the subject of delay. However I have determined that I should deal with the matter solely on the basis of the pleadings as they stand at present. On the information before me it seems almost inevitable that the Plaintiff will obtain judgment in default of pleading against the first named Defendant. He can then, if so advised, institute proceedings against the second named Defendant as the indemnifier of the first named Defendant. In those proceedings the Defendant (the second named Defendant in these proceedings) can raise the issue of delay and seek to have the proceedings struck out. Rather than proceed on the basis of a notional further amended Statement of Claim I am satisfied that it is preferable that I should allow the matter to proceed on the basis of the proceedings as they stand.

In deciding to strike out the Plaintiff’s claim I am influenced by the circumstance that the Plaintiff has had from the 11th January 2005 to date to deliver an appropriate amended Statement of Claim setting out in appropriate terms his claim against the second named Defendant but has failed to do so: the amended Statement of Claim delivered is totally defective in that it fails to disclose the true basis of the claim against the second named Defendant. The Defendant in this case has to meet a claim which arose more than 25 years ago and in these circumstances the onus on the Plaintiff having joined the second named Defendant was to proceed promptly and he has not done so.

In the circumstances it is appropriate that the Plaintiff’s claim against the second named Defendant be struck out pursuant to Order 19 Rule 28 of the Rules of the Superior Courts.

Approved: Finnegan P.

Leinster Leader Ltd. v. Williams Group Tullamore Ltd.

[1999] IEHC 14

JUDGMENT of Mrs. Justice Macken delivered on the 9th day of July 1999.

The first and second Defendants seek by a motion dated the 16th December, 1998 to have the Plaintiff’s Statement of Claim struck out in its entirety. They seek this Order pursuant to the provisions of Order 19 Rule 28 of the Rules of the Superior Courts and also under the inherent jurisdiction of this Court.

Order 19 Rule 28 reads as follows:-

“The Court may order a pleading to be struck out, on the grounds 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 orjudgment to be entered accordingly as may be just”.

Quite apart from this Rule, the Court also has an inherent jurisdiction to stay proceedings if they are frivolous or vexatious or if they put forward a claim which must fail. This inherent jurisdiction is also relied on. I propose to deal with the application pursuant to Order 19, Rule 28 in the first place, and then pursuant to the Court’s inherent jurisdiction.

Insofar as concerns the principles applicable to the Court exercising its jurisdiction pursuant to Order 19 Rule 28, the Plenary Summons issued on the 6th March, 1998 and the Statement of Claim on the 19th March, 1998. They seek effectively, certain declaratory relief concerning a combined pension scheme, which I will describe in detail later in thisjudgment, damages for misrepresentation, for misstatement, for negligence, for breach of contract and ancillary relief.

Briefly, the case is to the following intent. The first named Defendant, at some time, owned a shareholding (55%) in the Plaintiff. More recently, and the date is immaterial, the Plaintiff purchased back that shareholding. But prior to the time of the buy-back, there was in existence a non-contributory pension scheme, which was funded by the first named Defendant, and which was for the benefit, inter alia, of three employees of the Plaintiff. The Plaintiff had contributed funds to that pension scheme. On the buy-back, certain negotiations took place concerning, inter alia, the price at which the shares would be bought back. As part of this, the Plaintiff says it needed to know whether any shortfall existed in the combined pension scheme and the proper amount of the transfer payment to be made to the Plaintiff’s new pension scheme out of the old scheme.

The Statement of Claim is detailed, and insofar as its material parts are concerned, paragraphs 13 and the following paragraphs, plead as follows:-

“13. Furthermore, prior to the purchase of the said shares by Leinster Leader, Williams and IPT represented to Leinster Leader that the transfer payment to be made out of the combined pension scheme would be arranged on the basis that it would be financially neutral insofar as the proposed purchase of shares was concerned.

In making the said representation that the scheme would be neutral to the proposed purchase of shares, Williams and IPT thereby also warranted implicitly as follows:

(a) that the transfer payment to be made out of the combined pension scheme in respect of the said three employees would reflect the contributions made by Leinster Leader in respect of such employees;

(b) that the said transfer payment would not be reduced as a consequence of any deficit in the said scheme attributable to Williams and Williams Tullamore employees;

(c) that the transfer payment would be calculated on a basis consistent with the payments made to the combined pension scheme by Leinster Leader, and that in particular, it would be calculated on a basis that would anticipate future salary increases (in the same way as the payments by Leinster Leader to the combined pension scheme had done);

(d) that no financial burden would be placed on Leinster Leader as a consequence of any failure on the part of Williams and Williams Tullamore to make appropriate contributions in respect of its own employees to the combined pension scheme.

In the premises, the matters mentioned in sub-paragraphs (a) to (d) of paragraph 14 above also became implied terms of the buy-back contract between Leinster Leader and Williams Tullamore.

Furthermore or in the alternative, in representing that the transfer payment under the combined pension scheme would be arranged on the basis that it would be financially neutral to the share purchase, Williams Tullamore well knew and intended that such representation would be understood by Leinster Leader to have the effects mentioned in sub-paragraphs (a) to (d) of paragraph 14 above.

In giving the said respective warranties and representations, Williams Tullamore and IPT intended and well knew that Leinster Leader would rely thereon.

Acting in reliance upon the said representations made by both Williams Tullamore and IPT, and further relying upon the advice of IPT, Leinster Leader proceeded with the purchase of said shares.

……

Further or in the alternative, if the proposed payment of [sterling]23,874 is the correct computation of the transfer payment to be made to Leinster Leader out of the combined pension scheme, then the representations given in respect of the transfer fund by each of the said Defendants to Leinster Leader at the time of purchase of the said shares were false and untrue and inaccurate and misleading, and/or were made negligently and in breach of the said Defendants’ respective duties to Leinster Leader”.

Certain particulars were furnished in the Statement of Claim in respect of this last plea, by which it is claimed that the transfer payment to be made should have been, on one calculation, [sterling]438,000, or on an alternative calculation, [sterling]54,055.

There is, of course, no Defence delivered, and I will refer to the notice for particulars and the replies to that in due course. But as to the “pleadings” as such, I must now consider these. In considering whether or not to acceded to an application based on Order 19 Rule 28 the Court should consider the pleadings only, ignoring for the purposes of this rule, any affidavit evidence filed. To succeed under this Order, it must be established from the pleadings that the claim is vexatious or frivolous; seeCavern Systems (Dublin) Ltd. v. Clontarf Residents Association (1984) ILRM 24. From a consideration of the pleadings, it seems to me impossible to suggest that the Defendants could be certain that a Court would not accede to the Orders sought by the Plaintiff. All of the ingredients which would entitle the Plaintiff to have an Order in respect of misrepresentation, for example, absent any evidence to the contrary, on the Statement of Claim, are present. So too in the case of the declarations sought. So also in the case o f the allegation of breach of contract. I do not have to consider each and every plea, and each and every relief sought. I am satisfied, however, that a Court would be entitled to grant all of the relief sought, relying on these pleadings alone.

In the circumstances, I find that the first and second named Defendants have not made out a case insofar as Order 19 Rule 28 is concerned.

However, a detailed notice for particulars was served on the Plaintiff on the 17th April, 1998, and was replied to on the 31st August, 1998. The notice of motion was then issued on the 16th December, 1998. While strictly speaking a notice for particulars and its reply is not necessarily a “pleading”, in case it should be considered to be so, I am prepared to look at these also, and consider whether the principles found in the cases, as applied to those particulars, makes it certain that the Plaintiff could not succeed.

Particulars were raised in all aspects of the Statement of Claim, but those of relevance to the present application are found at paragraphs 9-15 inclusive, and 19. On the assumption that these are to be treated as “pleadings” simpliciter, I now consider these on the same basis as pleas in the Statement of Claim. It seems to me that the only difference which the replies to particulars make to the Statement of Claim is that they elaborate in more detail the case pleaded against the three Defendants, including the case made against the first and second Defendants. These particulars have been relied upon by those two Defendants to support their application.

In particular it is argued by Mr. Sreenan that the real claim by the Plaintiff is one against the third Defendant only, that the Plaintiff relied on that Defendant, that the Plaintiff knew, on its own particulars that it was to receive only the sum of [sterling]23,874 as the transfer payment before the closing date for the repurchase of the shares, and cannot now therefore make any case against the first and second named Defendants. He also argued that since the claim pleads at paragraph 13, as particularised by the response number 9, that advices were sought that there would be no shortfall and that those advices were given by a Mr.Mortimer of the third named Defendant, the first and second named Defendants could not have any liability. Mr. Sreenan said that, since Mr. Mortimer was acting for a principal, the third Defendant, any alleged representation made by him could not in any way affect his clients, the first and second Defendants. He also argued that once they were told by the third Defendant what they would receive, it made no difference that a representation; might have been made on behalf of the first or second named Defendants, but that no such representation was in fact made.

However, from a pleading point of view, I do not know that this is necessarily correct. Mr. McDonald, on behalf of the Plaintiff, said the case made by it was clear and that it could only properly be decided by a trial judge hearing all the evidence.

On the pleadings it seems to me there is no suggestion that when Mr. Mortimer made any representation, he did so as a principal, and not otherwise. It is, in fact, clear from the pleadings that the third named Defendant may have been acting in different capacities at different times both prior to and during the course of the negotiations and it is clear from the replies to particulars that certain at least of the representations were made orally, and not in writing, thereby rendering it difficult to establish at this point in the case, whether he was, at any particular time, acting in one capacity or in another.

If one looks then at the particulars, the first (10) is concerned with the representations allegedly made. This is replied to by, inter alia, a claim that the person on behalf of Williams who made the representation is Ken Mortimer of Irish Pension Trust. Since, from a pleading point of view there is no legal infirmity in pleading that a person from one company can make a representation on behalf of another company, I am of the view that this cannot constitute a fatal flaw such that the Plaintiff’s case could not succeed. The outcome would depend entirelyon the evidence which might be tendered in due course, particularly when the representation was pleaded to have been made orally.

The implied warranties, of which particulars were sought at 13, are, according to the reply, said to arise from the representation made, and from the meaning to be attached to the representation. Again, from a pleading point of view, it seems to me that this reply cannot mean that the pleading is fatal to the Plaintiff’s claim.

The particular raised at 12 is replied to as being a matter of law. The request at paragraph 13 is resisted on the basis that it seeks evidence, although a without prejudice reply was furnished, and this reply has not been demurred from to date. As to request number 14, (a) is resisted on the same ground as 13, but again a without prejudice response is given that the representation was made with the intention of assuring the Plaintiff that it would not suffer any financial burden and on the basis that the Plaintiff would rely on the truth of the same. Again, from a pleading point of view, I do not see how a Court could hold that the Plaintiff could not hope to succeed at trial at this time. Request 15 is replied to on the basis that the Statement of Claim adequately pleads the matter. As to particular 19, it is alleged that this is adequately pleaded in the Statement of Claim, but again without prejudice, particulars are given of the manner in which the representations pleaded at paragraph 14 were inaccurate and misleading. From a pleading point of view, it seems to me that this cannot be considered to be a fatal plea.

If I were therefore to consider the pleadings as including the request for particulars and the reply, it seems to me that the requirements laid down in the several cases would not be met, and that a Court could not, with certainty, say that the Plaintiff could not succeed, or that the Plaintiff’s case was bound to fail.

Turning now to the question as to whether or 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, it is permissible for affidavit evidence to be filed. A number of affidavits have been filed, and although there are several conflicting elements in theaffidavits, there are certain principles of law which apply in such a case, including the fact that I must assume:

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

(b) that every fact asserted by the Plaintiff in its affidavit is likewise correct and can be proved at trial.

These principles are accepted as being the correct principles to apply having regard to all of the cases on the Court’s inherent jurisdiction to strike out and it does mean that, insofar as there may be conflict between matters averred to by the Plaintiff and the Defendants in their respective affidavits, such conflicts must be, at least for the purposes of this application, resolved in favour of the Plaintiff.

The present application is unusual in that, so far as the “evidence” is concerned, there is no evidence presented as to the case which the first and second named Defendants will present, but rather the evidence which is tendered in support of this application consists of the same particulars furnished by the Plaintiff as set forth above in response to the request from the Defendants. The Plaintiff has, however, filed evidence in the true sense. I propose to deal with this aspect of the matter on the basis that the Plaintiff’s reply to particulars constitutes evidence also. Such evidence has been tendered by the Defendants through the affidavit of Mr. James AndrewLenny, Solicitor for the first and second named Defendants.

The essence of the first and second named Defendant’s argument is found at paragraph 17 of the affidavit. All of the prior paragraphs deal with the pleadings, as particularised. At paragraph 17 it is alleged that because the allegations against the first and second named Defendants stem from paragraph 13 of the Statement of Claim and because in the reply to particulars raised, the Plaintiff did not allege that the representation was made by either the first or the second named Defendants, the claim is fatally flawed.

It is said by Mr. Lenny that the Plaintiff did not specify in its particulars that Mr. Mortimer was acting as an agent of the first and/or second named Defendants. This is true. It is not so specified but it does not seem to me that this ends the matter. It is true that the answer might have been worded with more clarity, but it is said quite clearly that it was Mr. Mortimer who made the representation on behalf of the first and second named Defendants. Mr. Lenny then goes on:-

“As a matter of law, having regard to the matters pleaded in the Statement of Claim and in the Plaintiff’s replies to particulars, I fail to see how any such allegation could be made”.

It seems to me that this is a question for the trial judge. It is not a case that Mr. Mortimer has sworn any affidavit averring the contrary to what is pleaded. And even if he did, it seems to me that, having regard to the complexity of the issues raised, it would be difficult to say that one view of words used orally, over another view of the same words, should or could prevail at this point in the proceedings.

The foregoing affidavit is the extent of the evidence filed for the first and second named Defendants. However, in the course of the hearing of the motion, on the first day, it was said by Counsel on behalf of the Plaintiff that the first and second named Defendants were seeking to make a case which they had not made on affidavit, and that the Plaintiff should be given an opportunity to adduce a further affidavit. I agreed to this course of action, since a motion of this nature is, in my view, a very serious motion indeed and everything which is desired to be said should be before the Court.

Mr. Iain Stewart had already sworn an affidavit in response to Mr. Lenny’s affidavit, in which he set out in detail the background to the matters giving rise to the proceedings. He stated essentially, that so far as concerns the representations, that the pension issue was raised on the day of the buy-back of shares, when a Mr.Corcoran of the first/second Defendants confirmed that the Plaintiff would get what was due to it, and also prior to that time, in or around January 1993. At that time he says he was directed by Mr. Corcoran to contact Mr. Ken Mortimer, as the latter would be in a position to provide the information necessary on behalf of the first and second named Defendants. He went on to say that he knew Mr. Mortimer was wearing a number of different hats, and that he was at that time contacting him in his capacity as representating the first and second Defendants. He also averred that he was informed by Mr. Mortimer that the transfer payment to be made out of the combined pension would be arranged on a basis which would be financially “neutral” to the proposed buy-back contract.

In the supplemental affidavit sworn by Mr. Stewart, he adduced evidence to counter the matters which were raised by Counsel on behalf of the first and second named Defendants during the course of the initial hearing, namely that the amount of the transfer payment had been reported by the third named Defendant to the Plaintiff on the 25th March 1993, before the completion of the buy-back contract. Mr.Stewart stated that one of the Plaintiff’s concerns was to ensure that the amount which was being transferred would reflect the extent of the contributions made to the fund, and that if there was any question that the Plaintiff was not to receive a transfer payment reflecting the value and extent of the contribution, the Plaintiff would have taken this into account in its negotiations as to the price to be paid for the shares under the buy-back agreement.

Mr. Stewart also stated that while the figures were made known prior to the closing date of the 25th March, 1993, neither he nor any person on behalf of the Plaintiff knew at that time that the actual sum mentioned, namely, [sterling]23,874, did not in fact reflect the level or value of the contributions made by the Plaintiff in respect of its employees. It seems to me that if the representation made is proven and it is proven that it was made on behalf of the first and second Defendants, and I must assume these can be proven, then the Plaintiff has a good cause of action.

Mr. Stewart stated that it was not until April 1993 that it was discovered that the amount was not correct, and that there was a significant shortfall. The actual shortfall is not material for the purposes of this decision.

The law in relation to this particular jurisdiction is well established and the starting point is invariably the case of Barry v. Buckley (1981) I.R. 306 in which Costello J. (as he then was), stated 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: perBuckley LJ in Buckley v. Grierson (1908) 1 KB 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”.

The issue again arose in the case of Sun Fat Chan v. Osseous Limited (1992) 1 I.R. 25 where, in the Supreme Court, it was stated by McCarthy J.:-

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

Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated in 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 thatqualification, 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”.

Again, the same matter arose for further consideration in D.K. v. A.K. (1993) ILRM 710 in which Costello J. again enunciated the principles which he had previously stated in Barry v. Buckley, supra, and said:-

“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”.

All of the above cases, and the principles to be applied, were again considered and applied by the High Court in Ennis v. Butterly (1997) 1 ILRM 28, and in Supermac’s Ireland and Another v. Katesan (Naas) Limited, unreported, 15th March, 1999.

Even applying the principles with the rigour which McCarthy J. recognised in Sun Fat Chan v. Osseous Limited, supra, it seems to me that there is no question of the Court being able to come to the view at this time that the claims of the Plaintiff are unsustainable, nor are any of them. The kernel of the claim will be dependent on the establishment of the representation(s) made, the effect of those representations vis-à-vis the timing of the buy-back agreement, the precise meaning of the prior identification of the amount mentioned by Mr. Mortimer as being the correct transfer payment due, the precise meaning to be attached to the words “financially neutral insofar as the proposed purchase of shares” and other related matters.

None of this is dependent on written contracts or documents of the type referred to by Costello J. in D.K. v. A.K., supra, but on the contrary the representations, in particular, being allegedly made orally, will have to be considered in light of the overall evidence tendered.

While I have not accepted that any evidence was tendered by the first and second named Defendants to support the application made invoking the Court’s inherent jurisdiction, even allowing that the particulars and replies constitute evidence, I find nevertheless that these Defendants have not made out a case for the striking out of the Plaintiff’s Statement of Claim, in the exercise of the Court’s inherent jurisdiction.

In the circumstances I refuse both reliefs

Lopes -v- MJELR

[2008] IEHC 246

UDGMENT delivered by Mr. Justice Hanna on the 11th day of June 2008

The plaintiff in these proceedings is a citizen of a Member State of the European Union, namely Portugal, hailing as he does originally from the Cape Verde Islands. He is or has been inter alia, a seafarer. He is also a lay litigant. This matter comes before me by way of a Motion brought by the respondent within the plaintiff’s proceedings. The principal reliefs sought are as follows:

An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts dismissing, or alternatively, striking out the plaintiff’s claim against the defendant on the grounds that it discloses no reasonable cause of action against the defendant and is shown by the Pleadings to be frivolous and/or vexatious.

Further, or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim against the defendant as being an abuse of process of this Court and/or as having no reasonable prospects of success and/or being bound to fail.

Further, or in the alternative, an order pursuant to Order 19 Rule 27 of the Rules of the Superior Courts dismissing, or alternatively striking out the plaintiff’s claim as being scandalous.

The background facts and circumstances leading to the plaintiff’s proceedings can be summarised as follows.

On the 11th December 1988, Mr. Lopes was unfortunately involved in a road traffic accident which was no fault of his own. He subsequently, through his then solicitor, a Mr. Walker, brought proceedings in the Circuit Court. These proceedings were heard in Naas Circuit Court before Judge Patrick Smith (as he then was) and an award was made to the plaintiff amounting to IR£10,000.00 for general damages and IR£2,000.00 in special damages. Those sums are roughly translated into today’s money to €12,697.38 and €2,539.48 respectively.

Mr. Lopes was not well pleased with what happened to him because he maintained inter alia that his injuries were more significant and that he had suffered a significant loss of future earning power. This led to him instituting proceedings against his solicitor and one of his medical advisors, the Consultant Neurologist, Dr. Roderick Galvin.

On the 29th March 1995, Mr. Justice Morris (as he then was) dismissed Mr. Lopes’ case against Dr. Galvin and on the 31st March 1995, Mr. Justice Morris similarly dismissed the plaintiff’s claim against his solicitor, Mr. Walker. On the 25th November 1996, the Supreme Court dismissed Mr. Lopes’ appeal against the dismissal of his action against Dr. Galvin; the Supreme Court on that occasion being constituted in the personage of O’Flaherty, Barrington and Murphy JJ. However, on the 28th July 1997, the Supreme Court, comprising of Murphy, Lynch and Barron JJ., allowed Mr. Lopes’ appeal against the dismissal of his action against Mr. Walker and the matter was then remitted to the High Court for the determination of the damages. This, as I have indicated, was an action against his solicitor brought under the rubric of the tort of negligence.

On the 26th and 30th June and 1st July 1998, the action was heard by Mr. Justice Geoghegan and on the 2nd July 1998 he awarded the sum of €66,185.69 (that is the equivalent thereof), less the sum of €12,697.38 previously awarded to Mr. Lopes for general damages. That order was perfected on the 21st July 1998. Mr. Lopes appealed this decision, again at all times representing himself. This came before the Supreme Court, which was then made up of O’Flaherty, Lynch and Barrington JJ., and judgment was reserved. Unfortunately for all parties involved (including Mr. Lopes), certain difficulties arose which necessitated the resignation from the Bench of O’Flaherty J., as a consequence of which this case simply had to be heard again. Mr. Lopes does raise some queries about this but it seems to me that any query is wholly without foundation, since as one of the constituent members of the Court had to resign, the Court had to be reconstituted and the matter re-heard.

This re-hearing took place on the 21st June 1999 and judgment was delivered on the 19th July 1999, this Supreme Court consisting of Lynch J., Hamilton C.J. and Barron J. This resulted in a tripling of the damages to Mr. Lopes to the amount of €196,809.40 or its equivalent in punts, including €63,486.90, the equivalent to IR£50,000.00 for future special damages. The order was made in favour of Mr. Lopes, again taking into account the previous award made to him.

Here lies the fundamental cause of Mr. Lopes’ grievance. In a nutshell, he alleges that insufficient provision was made for him in respect of future loss of earnings as a navigator/seaman and this he attributes to a variety of reasons to which I will shortly refer.

Some years later, on the 26th March 2007, he issued a Plenary Summons against the Minister for Justice, Equality and Law Reform. An appearance was entered on behalf of the defendant and on the 29th June 2007, the defendant brought a Motion to dismiss Mr. Lopes’ claim. On the 26th June 2007, Mr. Lopes delivered his Statement of Claim.

I should observe at this point that it was indicated to me (and I would be most surprised if it were not to be the case) that, at the very least, the statute of limitations would loom extremely large in this case.

Mr. Lopes has brought a Plenary Summons and a Statement of Claim. The latter, with a few additions, is to all intents and purposes, the same as the former. It is a somewhat diffuse document but in basic summary, the plaintiff claims against The Minister for Justice, Equality and Law Reform under Article 12 of the Consolidated Treaty establishing the European Union. That article enjoins the Council to take appropriate action to combat discrimination, inter alia, based on racial or ethnic origin.

A brief summary of his claim is as follows.

Firstly, he alleges such discrimination on the part of a “state body”, namely the High Court and Supreme Court Judges who have at various times dealt with his litigation. As a consequence, he alleges he has not been adequately compensated for future loss of earnings as a navigator/seaman. He further alleges that the decision of the 2nd July 1998 given by Geoghegan J., in effect, according to his words, “overruled” the decision of the Supreme Court given on the 28th July 1997. He further alleges that the learned High Court Judge acted on the prompting by defence counsel that he was not an Irish citizen and that this spawned an unfair and discriminatory treatment he claims he has received at the hands of the Courts.

Further, he alleges that this refusal, as he would see it, properly to compensate him for future loss of earnings, is contrary to the EC Treaty. He further alleges racial discrimination as the root cause of his perceived woes. He points to some unidentified case where he claims a woman was compensated more generously than he. He says that he has been treated unfairly. He alleges racial discrimination and these allegations are carried forward in two affidavits sworn by him. He seeks compensation for the trauma which he alleges was suffered by him and his family as a consequence of his engagement to date with the Irish legal process. In a nutshell, Mr. Lopes’ grievance is that he did not get enough compensation because of his racial origin and the colour of his skin.

In seeking the reliefs contained in the Notice of Motion, Mr. Andrew Walker BL urged that there was no basis in law for any prospect of success in Mr. Lopes’ proceedings. They are no more, he says, than the embodiment of Mr. Lopes’ grievance. The plaintiff cannot succeed in law. It was further argued that the plaintiff is abusing the process of this Court and, further, that his proceedings contain scandalous material comprising of inter alia, what Mr. Walker would describe as “unfounded and unsustainable allegations against Members of the High Court and the Supreme Court Bench”.

As I have already noted, Mr. Lopes appeared on his own behalf. He claims to have studied law for a number of years. Strangely, although professing expertise in the law and trumpeting the force of his opinion, he refused to identify where he was conducting these studies which led to such vigorous certainty such as would be envied by many who have studied for far more years at internationally renowned centres of legal excellence, supplemented by decades of legal practice at the Bar or in the solicitors’ profession, perhaps even graduating to the Bench. He argued that there was no defence to the proceedings. The fact that they were brought under the auspices of the Treaty and Irish law, he said, was irrelevant. The Motion was effectively a mechanism to silence him; it was brought in the hope that yet another biased Judge would spring to the aid of the defence (he suggested). I did invite him to suggest whether he thought I was biased and happily Mr. Lopes declined to do so.

The Material Law

Article 35 of the Constitution provides as follows:

“1. The Judges of the Supreme Court, the High Court and all other Courts established in pursuance of Article 34 hereof shall be appointed by the President.

All Judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”

Article 13 of the EU Treaty provides as follows:

“Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliamen, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

The subject of judicial immunity from suit is well established and is enunciated clearly in the case of Sirros -v- Moore & Others, [1975] 1 Q.B. 118. Lord Denning, M.R., at page 132 of the decision states as follows:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance or was actuated by envy, hatred and malice and all uncharitableness, he is not liable to action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to any action for damages. The reason is not because the judge has any privileges to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”

This was expressly adopted as part of the law in this jurisdiction by Morris P. in the case of Desmond & Another -v- Cornelius Riordan [2000] 1 I.R. 505. (see also Macauley & Company Limited -v- Wyse-Power [1943] 77 I.L.T.R 61)

Since judicial immunity from suit is thus set in stone, it follows that vicarious liability of the Government in general and a minister in particular does not arise (see Deighan -v- Ireland [1995] 2 I.R. 56).

It is also clear that the Court has an inherent jurisdiction to deal appropriately with proceedings that may be adjudged frivolous or vexatious in tandem with Order 19. Dealing with Order 19 under the former rules, Costello J. said in Barry -v- Buckley [1981] I.R. 306 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 this 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.”

In the case of D.K. -v- King [1994] I.R. 166, Costello J. said at p. 170:

“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.”

The plaintiff has brought these proceedings complaining of what has occurred. He has been dealt with by both the High Court and the Supreme Court. It must be observed that the plaintiff’s success rate as a lay litigant is significantly greater than most others one has come across. He has in fact made major inroads into quantum. But the Court must have regard to the fact that it also has a jurisdiction, notwithstanding the plaintiff’s success to date, to deal with matters that are also considered to be of a scandalous nature. See Riordan -v- Hamilton & Others (Unreported, High Court, Smyth J. 26th June 2000).

As regards the case that he made, or argued, should I say, that this case is subject only to European Community Law, it is fair to say that in certain circumstances it might be envisaged that the Courts in this jurisdiction might be amenable to decisions of the European Court of Justice in procedural matters (See Kobler -v- Republik Österreich [2004] 1 Q.B. 848) but these are circumstances that are altogether different to what we are dealing with.

In my view, having considered this matter carefully, it seems to me that the plaintiff’s proceedings in this case are wholly unsustainable in law or in fact. They are the fruits of a grievance founded on what I regret to say is the fanciful and unsustainable notion that racial bias drove the Supreme Court to treble the damages awarded to him in the High Court. He has sought succour in a cherry-picked extract from the judgment of Barron J., without considering the judgment as a whole. Clearly, and beyond per adventure, it was the function of Geoghegan J. to hear and determine the plaintiff’s trial according to the evidence before him. This matter is to be determined within the rubric of Irish law. Irish constitutional law is amply equipped to protect the applicant against any unfair discrimination, however motivated, but the reality of the matter is that there is not a shred of evidence whatsoever of any such racial discrimination against him and to that extent I am wholly satisfied that his allegations to this effect in his proceedings are scandalous and unsustainable. Nothing could be added to these Pleadings by way of amendment or by way of evidence to alter the situation. It seems to me that one is forced, sadly, to the conclusion that the sole qualification to be guilty of racial discrimination seems to be to take a view contrary to Mr. Lopes. Maybe I will now join the ranks of those who he wishes to label biased and racist but it seems to me that his case is wholly without any foundation and cannot under any circumstances be added to or succeed.

I should observe that in his concluding remarks to me, Mr. Lopes demonstrated a compulsion to fight on with the perceived grievance which he entertains against the Irish Judiciary. Not as far as this Court is concerned; I strike out his proceedings.

McGuinn v Commissioner of an Garda Síochána and Others

JUDGMENT of Kearns P. delivered the 28th day of July, 2011.

This case addresses the principles applicable where a defendant moves to set aside a judgment obtained in default of defence.

Order 27, Rule 14(2) of the Rules of the Superior Courts (as substituted by S.I. 63/2004) provides:-

“Any judgment by default, whether under this Order or any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 8, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.”.

BACKGROUND

The plaintiff in these proceedings is a scaffolding contractor who resides in Castlebar, County Mayo. He alleges that on 8th April, 2003 five members of An Garda Siochana came to his place of employment while he was working there. He alleges that the Garda officers in question pushed his employer, Michael Hopkins, to one side and that one of the officers then placed a gun to his head, spun him around and pinned him to a wall.

He alleges that he was then informed that he was being arrested under s.30 of the Offences Against the State Act 1939 in relation to a firearms offence and further that he was a suspect in an incident which occurred the previous day in Castlebar. The plaintiff and his employer denied the allegations but the Gardai nonetheless handcuffed the plaintiff and placed him in the rear of a garda patrol car. He was then driven to another location before being driven to his place of residence. It is alleged that the plaintiff was there required to make a telephone call to a certain third party, following which a direction was given that the plaintiff be taken to the Garda Station in Castlebar. He was detained there for approximately two and a half hours. In addition to his claim arising out of these alleged events, the plaintiff further alleges a second instance of garda harassment on 6th March, 2004. In the proceedings brought by him herein the plaintiff has claimed damages for unlawful arrest, false imprisonment and slander.

For their part, the defendants have denied that the plaintiff was wrongfully or recklessly arrested or that any violence or force was inflicted on the plaintiff. In particular it is denied that a gun was placed to the plaintiff’s head. The Gardai had a warrant to search the plaintiff’s property on the date in question and contend that the plaintiff had no objection to the Gardai searching his flat and further contend that the plaintiff directed a member of An Garda Siochana to the location of his keys.

Proceedings by Plenary Summons were commenced on 12th April, 2005. An appearance thereto was entered on behalf of the defendants on 17th November, 2005. A Statement of Claim was delivered on 8th February, 2006. No notice for particulars or defence having thereafter been delivered by the defendants, the plaintiff’s solicitor wrote to the Chief State Solicitor’s office no less than six times during the course of 2006 requesting a defence before ultimately issuing a Motion for Judgment in Default of Defence returnable for 19th February, 2007. It was agreed between the solicitors for the plaintiff and the defendants that the motion would be struck out on consent with an order extending time to the defendants to deliver their defence within three weeks. However, it would appear that, notwithstanding this agreement, the motion was in fact adjourned for three weeks and reappeared in the Court Motion list on 12th March, 2007.

On that date there was no appearance on behalf of the defendant and the learned High Court judge (Herbert J.) made an “Unless Order”, that is to say a conditional order providing that that judgment in default of defence would be granted unless a defence was delivered by 21st March, 2009. The defendants were thus given a further eight days to file their defence. The plaintiff’s solicitor informed the Chief State Solicitor of this development by letter dated 13th March, 2007. The solicitor for the defendant acknowledged the position by letter dated 14th March, 2007 and in that letter Mr. Sean Murray, the solicitor in the Chief State Solicitor’s office who was dealing with the matter, confirmed that the defence would issue to the plaintiff’s solicitors by fax on 21st March, 2007 and by post thereafter.

The defence was not filed by 21st March, 2007 and on 28th March, 2007 the plaintiff’s solicitors warned that they were proceeding to have the order perfected. By letter dated 28th March, 2007 the plaintiff’s solicitor wrote to Mr. Murray to that effect.

A defence was eventually furnished to the plaintiff’s solicitors on 20th April, 2007 but was returned to the Chief State Solicitor’s office on 26th April, 2007 with a cover letter indicating that the plaintiff’s solicitor was not in a position to accept same. The letter returning the defence set out in some detail the list of opportunities afforded to the defendants to file the defence following the service of the Statement of Claim in February, 2006.

In May, 2007, the solicitor for the defendants indicated that his clients intended to bring a motion to set aside the order and judgment at the earliest opportunity. However, nothing further occurred. On 11th July, 2007 the plaintiff’s solicitors furnished a copy of the perfected Order of Herbert J. to the State Chief Solicitor’s office and advised that, as per the terms of the Order, the plaintiff was proceeding to have the matter listed for hearing. A year later, on 27th May, 2008, the plaintiff’s solicitor wrote to the solicitor for the defendants indicating their intention to set the matter down for trial. On 12th June, 2008 the solicitor for the defendants replied indicating that he was taking his clients instructions. On 20th June, 2008, and again on 15th July, 2008, the plaintiff’s solicitors wrote warning that a Notice of Intention to Proceed would be served if there was no response from the defendant. No reply was received to either letter. Notice of Intention to Proceed was then served on 30th July, 2008.

Notice of Trial was served on 24th September, 2008 and on 21st October, 2008 the plaintiff’s solicitor wrote to the solicitor for the defendants enclosing all up to date medical reports in respect of the plaintiff and a schedule of witnesses intended to be called by the plaintiff at the trial of the action. It was further indicated that counsel would be attending the Dublin Personal Injuries List on 29th October, 2008 to seek a date for hearing. At that juncture, the solicitor for the defendants contacted the plaintiff’s solicitor by telephone with a request to delay the application until after 3rd December, 2008 to afford him an opportunity to consider the medical reports which had been filed on behalf of the plaintiff and, if necessary, to have the plaintiff medically examined by the defendants’ medical expert. While the plaintiff’s solicitors agreed to this course, nothing further was heard from the defendants and on 9th December, 2008 the plaintiff’s solicitor wrote again indicating that counsel for the plaintiff would seek a date for hearing in late January, 2009 and would be making the application on 10th December, 2008.

At that juncture a further period was sought by the solicitor for the defendants to arrange to have the plaintiff medically examined but, having regard to the delays already encountered in the matter, the plaintiff’s solicitor decided to proceed with the application and seek to have the matter called on. On 10th December, 2008 the plaintiff’s solicitor received correspondence from the solicitor for the defendants dated 9th December, 2008 indicating that he would be making an application by way of Motion on Notice seeking to set aside the Order of Mr. Justice Herbert dated 12th March, 2007.

The solicitor for the defendants wrote a further letter on 10th December, 2008 indicating that the plaintiff was to be examined by Dr. Patricia Casey, Professor of Psychiatry at the Mater Hospital, on 11th February, 2009. Counsel for the plaintiff attended before Quirke J. on 10th December, 2008 seeking a date for hearing in late February, 2009 in light of the medical appointment arranged for 11th February, 2009.

On 22nd December, 2008 a motion to set aside the judgment was brought by the solicitors for the defendants and made returnable for 12th January, 2009. That motion was ultimately heard and decided by the High Court (Cooke J.) on 9th February, 2009.

In the affidavit grounding that application, Mr. Murray stated that it had been the defendants’ intentions at all times to fully contest the action. Exhibited in the affidavit was a copy of the defence which it had been hoped to file. The only ground relied upon by Mr. Murray by way of special circumstance was the fact that the original motion for judgment was not dealt with in the manner which had been agreed between the solicitors in that, instead of being struck out, the motion was adjourned in circumstances where three weeks later a conditional order for judgment in default of defence was made instead. Mr. Murray further deposed to his belief that there were good grounds upon which to defend the action. He further contended that the defendants would suffer grave prejudice if the Order was not set aside.

However, having heard the arguments of both sides, Cooke J. refused the relief sought by the defendants and directed that the costs of the motion be awarded to the plaintiff.

Following the making and perfecting of his Order on 10th February, 2009, the defendants served a Notice of Appeal on the solicitor for the plaintiff on 3rd March, 2009, the last day of the time allowed for the making of such an appeal. In the interim, the plaintiff’s solicitor had written to the defendants’ solicitor on 18th February, 2009 indicating that counsel for the plaintiff would be applying for a date for hearing on 4th March, 2009. On that date Quirke J. having heard that the motion to set aside was refused listed the case for hearing on 13th May, 2009.

The solicitor for the defendants then sent a letter for voluntary discovery to the plaintiff’s solicitor on 8th April, 2009. The request was based on the report of Dr. Casey of the examination of the plaintiff on 11th February, 2009 but no copy of the report was furnished to the plaintiff’s solicitor until 11th May, 2009. A further letter for voluntary discovery was sent on 17th April, 2009 which contained further categories of documentation sought by the defendants. Both requests for voluntary discovery were outside the time prescribed by the Rules of the Superior Courts.

On 13th May, 2009 counsel for the defendants made an application for an adjournment of the hearing due to the fact that his medical expert, Dr. Casey, would not be available on 14th May, 2009 should the matter run over to that date. On that occasion the issue as to whether or not the defendants should be allowed call medical evidence in relation to the claim arose given that there was no defence filed on their behalf. Quirke J. adjourned the hearing of the case, firstly to 26th May, 2009, and thereafter to 14th July, 2009 with priority.

For the purposes of the appeal to this Court, Mr. Sean Murray has sworn a further affidavit which addresses in somewhat greater detail the reasons for the hitherto unexplained delay in addressing the various procedural steps required to be taken in the office of the Chief State Solicitor. He very candidly and fairly acknowledges that there has been excessive delay, consisting of a delay from 21st March, 2007 (being the date upon which judgment as ordered by Herbert J. came into effect) until 22nd December, 2008 (the date of issue of the Notice of Motion to set aside the judgment), being a delay in the order of twenty-one months. He accepts full responsibility for this delay and states:-

“The only explanation I can offer this honourable court for such delay is that same was due to a combination of pressure of work and oversight on my part and I accept that this does not excuse such a significant period of delay in the circumstances.”

At a later point in his affidavit, Mr. Murray notes that when the matter was listed for hearing in the High Court personal injuries list on 13th May 2009, the plaintiff’s legal advisers in accordance with their letter of 24th April, 2009 argued that the defendants ought not to be allowed call any evidence at all in the case. Quirke J., however, indicated that in his view the defendants were entitled to call evidence in relation to issues affecting quantum and the assessment of damages.

Subsequent to the adjournment of the hearing on 13th May, 2009, Mr. Murray deposes that as a result of representations made by the first named defendant, a different senior counsel was retained in the case and that that senior counsel had a consultation with the relevant garda witnesses involved in the circumstances of both incidents the subject matter of the proceedings. Those witnesses indicated at a consultation held on 21st May, 2009 their serious concerns about the fact that judgment in default of defence had been obtained and that the absence of a defence amounted in effect to an admission of liability on their part. Mr. Murray deposed to the fact that the members of the Gardai concerned have communicated to their own legal advisers their concerns that failure to defend the proceedings would damage their reputation as members of An Garda Siochana in the locality where they serve.

Mr. Murray further deposes that if the evidence available to the defendants from the Gardai (i.e. in respect of liability) is allowed in evidence, and if that evidence is accepted, that the defendants have a good defence to the case. Any suggestion that the delay might have prejudiced the plaintiff could be overcome by the defendants’ willingness that the case be tried on 14th July, 2009 whereas the defendants would suffer substantial prejudice if deprived of the entitlement to defend the action.

JUDGMENT OF THE HIGH COURT

As indicated above, the High Court (Cooke J.) determined this motion by means of an ex tempore ruling delivered on 9th February, 2009.

The learned High Court judge considered that there had been inordinate and inexcusable delay by the defendants in moving to set aside the judgment obtained on 12th March, 2007 and that, having regard in particular to the forbearance exhibited by the plaintiff’s solicitors in issuing warnings of intention to proceed in the period from May to October, 2008, it would be inconsistent with doing justice between the parties to grant the defendants motion. In particular the learned High Court judge noted:-

“In the court’s view a defendant who finds that judgment in default of defence has been recovered against him has a duty to move promptly to set aside that judgment if liability is to be contested.”

While noting there may have been a misunderstanding as to the striking out or adjournment of the original motion for judgment, the defendants were clearly aware of the obligation to recover its position by a delivery of a defence on numerous occasions. They had promised to do so within the eight days provided for in the court order and as promised in their letter of 14th March, 2007. The learned High Court judge also stated:-

“It can hardly be doubted that if the motion had been brought at any time during 2007 it would have stood a reasonable chance of being allowed. That the Chief State Solicitor was alive to the need to take such a step is evident from the correspondence at the beginning of May, 2007. Instead, nothing was done throughout 2007 and it was the plaintiff’s solicitor who reactivated matters in May of the following year.”

The learned trial judge further noted that even when the plaintiff’s solicitor effectively offered opportunities to the Chief State Solicitor’s office to mend its hand, nothing was done. Even when the plaintiff’s solicitor began preparations for the hearing, the Chief State Solicitor’s office did not move to assert any intention to contest liability but effectively acquiesced in the steps taken in the trial preparations being undertaken by the plaintiff. The defence merely sought time to examine the medical reports and conduct their own medical examination. Cooke J. concluded his ruling as follows:-

“Finally, the court was heavily influenced in rejecting the motion by the complete absence from the defendants’ grounding affidavit of any explanation or excuse for the failure to take any step towards re-asserting an intention to contest liability between April, 2007 and December, 2008. Such delay in the circumstances was inordinate and unexcused and in the absence of any mitigating explanation the court considered that it had no evidential basis upon which it might have been inclined in the defendants favour on the motion.”

SUBMISSIONS ON APPEAL

Mr. Hugh Mohan, senior counsel on behalf of the defendants, submitted that he had satisfied the onus of proof necessary to obtain relief by demonstrating that there had been “special circumstances” as required by Order 27, Rule 14(2) of the Rules of the Superior Courts. Those special circumstances consisted of the misunderstanding between the solicitors whereby the original motion for judgment was not struck out, but instead was adjourned for three weeks following which an “Unless Order” was made in the plaintiff’s favour. He submitted that an “Unless Order” was a very serious order to make and one not usually made on a first motion for judgment. Furthermore, the defendants were in a position to deliver their defence within a relatively short period of time after the default judgment became effective. There was thus, he submitted, no good reason why the court should not exercise its discretion in favour of the defendants.

He submitted that the learned trial judge was in error in holding that there was “an overriding obligation” on the defendants to move promptly to set aside the judgment and that their rights and entitlements were lost on account of their delay in applying to the court. No such requirement was contained in the relevant Rule and, he submitted, the learned trial judge had fettered his discretion by reading the Rule in that particular manner. In support, Mr. Mohan invoked the dicta of Lord Atkin in Evans v. Bartlam [1937] A.C. 473 where he adverted to the wide discretionary power given to a judge to set aside a default judgment. Lord Atkin had noted (at p.480):-

“The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.

But in any case in my opinion the Court does not, and I doubt whether it can, lay down rigid rules which deprive it of jurisdiction.”

Mr. Mohan also cited in support the principles enunciated by Sir Roger Ormrod in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc. [1986] 2 Lloyds in the following manner:-

“(i) A judgment signed in default is a regular judgment from which, subject to (ii) below, the plaintiff derives rights of property;

(ii) The Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms “unconditional” and the court should not “lay down rigid rules which deprive it of jurisdiction” (per Lord Atkin at p.486);

(iii) The purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default;

(iv) The primary consideration is whether the defendant “has merits to which the court should pay heed” (per Lord Wright at p.489) not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence and if he has shown “merits” …;

(v) Again as a matter of common sense, thought not making it a condition precedent, the court will take into account the explanation as to how it came about that the defendant … found himself bound by a judgment regularly obtained to which he could have set up some serious defence.”

Mr. Mohan further submitted that by its judgment in Croke v. Waterford Crystal Limited and Another [2005] 2 IR 383 this court had emphasised, albeit in the context of an application to amend proceedings, the importance of having the real issues between the parties determined at trial.

Mr. Mohan argued that the court should engage in a two stage process. Firstly, the general rules which apply to Order 13, Rule 11 of the Rules of the Superior Courts and which applied to Order 27, Rule 14 prior to the 2004 amendment thereof should be considered. While Order 13, Rule 11 refers specifically to setting aside a judgment where there has been no appearance, the general principle that a court may set aside or vary a judgment “upon such terms as may be just” should still inform the approach of the court to the defendants’ application in this case. The second stage of the process required the court to consider whether the defendants have a good defence on the merits. He submitted that the affidavit evidence established the fact of a good defence and facts concerning the manner in which the judgment came to be granted which would justify the court in exercising its discretion to set aside the judgment.

Mr. Conor Maguire, senior counsel for the plaintiff, contended that a complete sea change had been wrought by the amendment of Order 27, Rule 14 in 2004. An applicant for relief must now demonstrate “special circumstances (to be recited in the Order) which existed at the time of the default which both explain and justify the failure to deliver” the pleading in question.

That this was a substantial change in the existing rules which rendered redundant much of the pre-existing jurisprudence is evident from decisions of this Court in the analogous situation of applications to dismiss for want of prosecution brought under Order 27, Rule 14 (1). In those cases a plaintiff is now also obliged to also demonstrate “special circumstances” to explain and justify his failure to deliver a Statement of Claim. These principles had been enunciated in cases such as Gilroy v. Flynn [2005] 1 ILRM 290 and Stephens v. Paul Flynn [2008] 4 IR 31. These decisions also took account of the passing into law of the European Convention on Human Rights Act 2003. Article 6 of the European Convention for the Protection of Human Rights & Fundamental Freedoms specifically provides that in the determination of civil rights, everyone is entitled to a fair and public hearing “within a reasonable time” by a court or tribunal and that a plaintiff should not be shut out from obtaining his remedy where there has been inordinate delay in defending the claim as found by the learned trial judge and as indeed was accepted by the defendants,.

Mr. Maguire submitted that the test is not whether the defendants have a defence with a reasonable prospect of success but rather whether there were special circumstances at the time of the default which justify and explain the failure. Alternatively, if special circumstances existed at the time of the failure to file a defence, the circumstances in question cease to be “special” when the defendants allow twenty-one months to elapse before seeking to set aside a judgment.

In reply, Mr. Mohan, while acknowledging the applicability to his case of the jurisprudence in relation to claims to dismiss for want of prosecution, submitted that the interests of justice required that he be allowed defend the proceedings. He contended that the plaintiff had failed to establish or even allege that he had suffered any specific prejudice as a result of delay. Any penalty to be suffered by the defence could be adequately reflected in an appropriate costs order.

DISCUSSION

The first matter I wish to consider is the specific terminology of Order 27, Rule 14(2) of the Rules of the Superior Courts in relation to an application of this nature. The Rule specifically provides that a judgment obtained by default may be set aside by the court if the court is satisfied that “at the time of the default special circumstances (to be recited in the Order) existed which explain and justify the failure”. This particular form of wording is certainly open to the interpretation that the court may, or should, set aside a judgment only where the special circumstances may be said to have arisen at the time of the default. However, any such approach to interpretation would, in my view, be mistaken, illogical and absurd. For example, if at any time after judgment had been entered the solicitor dealing with the matter on behalf of a defendant had become seriously ill or had lost his papers through fire or theft, such special circumstances could not be said to have arisen at the time of the default and it would therefore follow that an applicant for relief would be unable to satisfy the requirements of the Rule. That would be plainly absurd. Equally absurd, it seems to me, would be to interpret the Rule as meaning that, once special circumstances at the time of the default were established, an applicant thereafter had limitless time in which to apply to the court for relief. That would also be absurd, because plainly a special circumstance at one particular time may cease to be such following a lengthy period of inactivity by or on behalf of the party entitled to rely on that special circumstance.

Secondly, while counsel for the applicant accepted that the jurisprudence developed in relation to Order 27, Rule 14 (1) of the Rules of the Superior Courts has direct relevance and application to the granting of relief under Order 27, Rule 14 (2), it seems to me that the application to move expeditiously must be far greater on a party against whom a judgment has been entered than that which devolves on a lethargic plaintiff to advance his proceedings. A judgment is a solemn order of the court and is usually final notwithstanding that it may be subject to appeal. As noted in Halsburys Laws of England (4th Ed.) Vol 26 para 559:-

“Application to set aside a judgment or order in default of appearance or defence which is regular should be made as soon as possible after it comes to the knowledge of the defendant.”

This is necessarily the case given that a judgment is conclusive as between the parties and their privies and is conclusive evidence against all the world of its existence, date and legal consequences. While the Rules of the Superior Courts provide no time limit for the making of an application to set aside, Order 30 Rule 1 of the Circuit Court Rules provides that such an application be made not later than 10 days after the party against whom judgment has been given becomes aware of that fact. Order 30 Rule 2 provides that every such application must “set forth clearly and briefly the reasons why the party applying did not deliver an appearance or did not deliver a defence, as the case may be, the nature of the fraud, misrepresentation, surprise or mistake relied upon, and the grounds of defence to the action in which the judgment was given”

Cordial’s Consolidated Circuit Court Rules (Practice and Procedure) (Round Hall 2001) at C 145 makes clear that where a party fails to move within the 10 day period, the issue of the party’s delay will be a material factor in the judge’s exercise of his discretion.

Thirdly, I think it must be seen as fundamental to the Court’s approach in applications of this nature that the introduction of the requirement to demonstrate “special circumstances (to be inserted in the Order)” significantly raises the threshold for an applicant over any requirements which existed under the former Order 27, Rule 14. The amendment effected by S.I. 63/2004 can only be seen as ushering in a new era where inordinate delays, which might have been countenanced in the past, should be eradicated from modern legal culture. This is a view forcefully expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 and by Clarke J. in the High Court and by this Court in Stephens v. Paul Flynn [2008] 4 IR 31.

Fourthly, I think some consideration of the role and effect of the European Convention on Human Rights Act 2003 must inform the Court’s approach to applications of this nature, be they under Order 27, Rule 14(1) or Rule 14(2).

It will be recalled that the preamble to the Act recites that the Act of 2003 is “an Act to enable further effect to be given, subject to the Constitution, to certain provisions of the Convention for the Protection of Human Rights & Fundamental Freedoms”.

Section 2 of the Act of 2003 provides that:-

“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”

Section 4 of the Act of 2003 contains the dual requirement that judicial notice “shall” be taken of the Convention provisions and of any decision or judgment of the European Court of Human Rights. This section is the counterpart of s. 2 of the Human Rights Act 1998 in the U.K. which provides that a court in determining a question which has arisen in connection with a Convention right must take into account, inter alia, judgments and decisions of the European Court of Human Rights. The phrase ‘judicial notice’ necessarily involves having regard to the content of the Convention’s provisions, just as, for example, arises in the instance of the Civil Liability (assessment of Hearing Injury) Act 1998 which requires that a court, in all proceedings claiming damages for personal injury arising from a hearing injury, shall take judicial notice of the Report of an Expert Hearing Group and have regard to certain matters in the Report when assessing damages. The weight to be attached to the material in respect of which the court is required to take judicial notice remains, of course, a matter for the court.

I do not see the role of an Irish court therefore as being confined exclusively to s.2 of the Act of 2003. The stand alone provision contained in s.4 provides that judicial notice “shall” be taken of the Convention provisions. Further, while every organ of the State is obliged to perform its functions in a manner compatible with the State’s obligation under the Convention provisions, the idea that a court, notwithstanding that it is excluded from the definition of organ of the State’’, could proceed on the basis of indifference to the principles contained in the Convention, strikes me as a startling proposition indeed.

Article 6 of the European Convention specifically provides:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

As was noted by both parties to the appeal in Desmond v. MGN Limited (Unreported, Supreme Court, 15th October, 2008) this does not mean that the Convention, even in the form in which it has been incorporated into Irish domestic law, is to be taken as providing horizontal enforceable rights as between private litigants. Both parties in that case, however, accepted that, when exercising its discretion under Order 27, the court must remain mindful of obligations imposed on it by the Convention given that those obligations exist quite independently of the action or inaction of the parties to the litigation.

While I expressed the view in that case that the provisions of the Act of 2003 and the requirements of the Convention added a further consideration to the list of factors which were enumerated in Rainsford v. Limerick Corporation [1995] 1 IRLM 561 and Primor Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (a view not shared by my learned colleague, Geoghegan J.), I think it important to record that in delivering judgment on behalf of the majority of the court in that case Macken J. expressly resiled from considering whether the provisions of the Act or the Convention came into play on the basis that there was “ample extant Irish jurisprudence on the matter without doing so”.

In repeating what I said in Desmond v. MGN Limited, I stress that I am not suggesting that the Convention is to be seen as having any effect other than the specific sub-constitutional role assigned to it by the Act of 2003. Nor am I saying that the jurisprudence of the European Court of Human Rights mandates that proceedings be struck out or dismissed for delay.

I do not therefore believe that the principles enunciated in the two great Irish cases of Rainsford and Primor respectively should be seen as written in tablets of stone or as being incapable of further development in modern times where previously tolerated delays are no longer seen as justifiable.

Finally, the decision of a court to grant or refuse relief in applications of this nature is ultimately a discretionary matter. I would reiterate the views expressed by Lynch J. in Martin v. Moy Contractors (Unreported, Supreme Court, 11th February, 1999) in which he stated at p.13:-

“The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided that the High Court decision is within the limits of reasonable discretion this Court should not interfere with it. In this case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally followed from such reasoning and is also therefore clearly valid. There is accordingly no basis on which this court should interfere with the judgment of the learned President …”

DECISION

In my view the applicant has clearly demonstrated that there were “special circumstances” at the time when judgment was obtained in the High Court in this case such as to enable an application to set aside the judgment to be brought. The defendants’ solicitor was clearly unaware that the Motion for Judgment, instead of being struck out, had been adjourned for three weeks. He was equally unaware that an “Unless Order” had been made by Herbert J. until notified to that effect by the plaintiff’s solicitors. These were clearly special circumstances, and I would be of the view that any application brought within a few weeks of discovering that judgment had been obtained would undoubtedly have been successful. Such an application would have been brought promptly.

However, that is not what happened. It took an incredible period of twenty-one months for the defendants’ solicitor to bring the present application under Order 27, Rule 14 of the Rules of the Superior Courts. This was not against a backdrop where the plaintiff and his advisers remained inactive or indifferent to the progress of the litigation. On the contrary, both before and after judgment the plaintiff’s solicitors repeatedly stressed their anxiety to move the proceedings forward as quickly as possible. This is most definitely not a case where any blame can be laid at the door of the plaintiff or his legal advisers.

Mr. Murray, the solicitor dealing with this matter in the Chief State Solicitor’s office, has very honestly and admirably admitted that the fault for the delay in this case was entirely his. Unfortunately, his affidavit does not detail what may have been perfectly understandable reasons for the delay in question.

In seeking relief in these circumstances, the case law further demonstrates that some real defence on the merits must be shown to exist. Beyond stating that the members of the Garda Siochana against whom allegations have been made are both apprehensive and indignant that a judgment which affects their reputations remains intact, the affidavit does not go on to specify, other than through denials, what the details of the defendants’ case might be.

It seems clear to me that the interests of justice require that a plaintiff be entitled to rely on a default judgment when no challenge is brought within a reasonable time to the entry of such judgment. I would stress again that the onus and duty falling on a defendant in these circumstances must be seen as far greater than that which devolves on a plaintiff who has been lethargic or inactive in pursuing his remedy. I would dismiss the appeal.

Concorde Engineering Co. Ltd. v. Bus Atha Cliath

McCracken J. [1995] 3 IR 214

This was an action in which the plaintiff claimed damages for negligence against the defendant arising out of an accident in which a bus, the property of the defendant, went out of control and collided with the plaintiff’s premises causing serious damage. The case was heard by me on the 2nd and 3rd February, 1995, and I gave judgment on the 8th February, 1995, for the plaintiff in the sum of £67,100 and costs.

The statement of claim in the proceedings included a claim for interest in accordance with the provisions of the Courts Act, 1981, but no argument was addressed at the hearing or after the judgment in relation to the question of interest. No award of interest was made and the order was perfected on the 8th February, 1995.

By notice of motion dated the 8th November, 1995, the plaintiff now seeks to have the order amended either pursuant to O. 28 of the Rules of the Superior Courts, 1986, or under the inherent jurisdiction of the court, to include a decree for interest on the principle sum awarded. The motion is opposed by the defendant on the grounds that O. 28 does not apply in these circumstances, and that it would be wrong for the court to exercise any inherent jurisdiction to amend the order, as the defendant is entitled to know with certainty the amount of the award against it.

Order 28, r. 11 reads:

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

In the present case there can be no question of there having been a clerical mistake in the order, and therefore the plaintiff must satisfy me that there was an accidental slip or omission within the meaning of the rule, and also that this is a proper case in which to amend the order, as the rule seemed to make it quite clear that any such amendment is discretionary. Mr. Herbert on behalf of the plaintiff has cited two cases to support his claim for an order under the rule. The first of these is a Privy Council decision, Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. [1973] 1 W.L.R. 300 and the second is Re Inchcape [1942] Ch. 394. In both these cases it was held that the accidental slip or omission could be that of counsel rather than of the judge. The latter case, as are most of the cases under this rule, concerned an award of costs. The court had made an award of costs, but counsel accidently omitted at the hearing to ask for a direction that certain specific costs should be included in the order. The court took the view that it was at all times the intention that these costs would be included, and amended the order accordingly.

The Privy Council case is the only one that I am aware of in which an order for interest was allowed where no such order had been made at the hearing. I note, however, that in that case the application was made in respect of the judgment, and no final order had been perfected at the time of the application. I can certainly understand a court allowing a matter such as interest to be raised at that stage, because there has been no finality reached. However, I do not think that the rule envisages an application being made after a final order, and indeed as in this case almost nine months after the perfection of the order, which would in effect allow a plaintiff to plead a head of damages or loss which was not referred to at all at the hearing of the action. Even if the rule can be read as permitting such a claim to be made at that stage, I must have regard to the right of a defendant to know at the time of the perfection of an order the exact extent of it’s liability. I think that is particularly so in a case such as this, in which the defendant did not contest liability, and therefore the only issue before the court was the extent of the plaintiff’s loss.

Quite apart from that point, the wording of the rule, referring as it does to “any accidental slip or omission” must be construed as encompassing only matters which were omitted from the judgment or order by reason of a slip or omission. That seems to me to connote that, were it not for the slip or omission, the amendment requested would of necessity have been in the original order. This is the principle which applies in relation to the inherent jurisdiction of the court to amend a judgment or order, which was confirmed in Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M. 29. In that case at pp. 36/73, the court approved a quotation from Ainsworth v. Wilding [1896] 1 Ch. 673 as stating the correct principle in that the inherent jurisdiction arises:

“Where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.”

The award of interest under the Courts Act, 1981, is a discretionary award. There is authority that in what I might call a purely commercial case interest should as a general rule be awarded, but this is not quite such a case. This is in fact an action for damages for negligence arising out of a traffic accident. I certainly cannot say that at the time of the hearing I had actually decided or intended to make such an award, nor can I say that, if I had been asked to award interest at the time, I would have done so. In fact, had such a request been made, I would have sought the views of the defendant’s counsel, and I would have made a determination based on the arguments before me. I know of no authority which says that a court can re-open an issue, after a final order has been made, in the sense of hearing

arguments which were not addressed to the court in the course of the action, and making a finding based on such arguments.

In those circumstances, I must refuse this application.

Cornhill v. Minister for Agriculture and Food

[1998] IEHC 47

JUDGMENT of Mr. Justice Philip O’Sullivan delivered the 13th day of March 1998 .

In this judgment I am dealing with one motion in each of six actions referred to above brought by different Plaintiff insurance companies, all against the same Defendant, namely, the Minister for Agriculture and Food and all arising out of the same incident, namely, the destruction by fire of almost 7,000 tonnes of intervention beef on the 7th January, 1992 at the United Meat Packers Premises, Ballaghaderreen, Co. Roscommon. The several Plaintiff insurers rejected a claim by the common Defendant (hereinafter “the Minister”) for an indemnity in respect of the loss, amounting to some £30 million, and have issued these six proceedings seeking declaratory relief on the grounds, inter alia, of non-disclosure.

For present purposes it is not necessary to set out the precise manner in which each of the Plaintiff’s potential exposure arises or indeed the amount thereof. Furthermore, in each of the six applications now being dealt with similar, although not identical, issues arise relating to additional instances of alleged non-disclosure together with a claim that fire cover had been excluded by reason of its exclusion by the lead insurer and, additionally, in one case a further point in relation to additional notices of cancellation, all of which points are now sought to be specifically pleaded in amended Statements of Claim.

The original Statements of Claim had indeed referred to non-disclosure but confined this allegation to non-disclosure of the fact that intervention beef was being stored at warehouses owned by United Meat Packers (UMP), including the warehouse at Ballaghaderreen, and not by the Minister. Furthermore, the terms of contract between the Minister and UMP were not disclosed to the Plaintiffs nor was the fact that same deprived the Plaintiffs of any right of subrogation against UMP.

The amended Statement of Claim sought to enlarge this category of alleged non-disclosure of material facts to include allegations relating to the knowledge of the Minister in relation to irregularities and abuses at the UMP plant in connection with the operation of the Aid to Private Storage Scheme (APS) and Export Refund Scheme (ERS) and in relation to the intervention arrangements, that specifically between September and December 1988 irregularities in the foregoing categories took place whereby ineligible pieces of meat under the APS were included in boxed meat and there was a failure to achieve individual wrapping required under the ERS, that as early as 1989 the Minister was aware that a permanent presence system in Ballaghaderreen was not in operation and there was no full time or adequate control, that an associated plant in Ballyhaunis was suspended from intervention de-boning for two weeks from 5th September, 1989, that UMP was the subject of a £1.4 million penalty in May of 1991 due to irregularities in the operation of the APS and the ERS, that the Minister’s Department in 1991 considered suspending the Ballaghaderreen plant because of irregularities under the Intervention Scheme and that officials in the Minister’s Department had concluded that beef was being wrongfully and improperly removed from the plant at Ballaghaderreen or had been stolen as a result of which these officials had concluded that the de-boning operating at Ballaghaderreen should be suspended.

In addition to the foregoing amendments which deal with alleged non-disclosure in relation to

(a) the APS and ERS,

(b) the Intervention Scheme, and

the Plaintiffs also sought an amendment asserting that if an already pleaded cancellation did not have the effect of cancelling the contract as and from the 31st October, 1991 (or preventing automatic renewal) then the Minister had failed in his duty to disclose a fact material to the subsequent contract, namely, that the new lead insurer Alte Leipziger had excluded fire cover from its insurance risk.

A third category of amendment pleads that in fact any contract after the 1st November, 1991 or alternatively the 1st January, 1992 did not include cover for storage risks in respect of fire.

Additionally, in the case of one set of Plaintiffs, namely, Eagle Star France and Others (1992: No. 1336P) an additional notice cancelling all contracts of Insurance is sought now to be included in a Statement of Claim which already includes a plea in relation to a similar notice dated a month later.

The Minister for Agriculture and Food submits that these amendments should not be allowed. He says that they are not relevant. Affidavits sworn on his behalf make the point that the meat the subject matter of the APS was dealt with under different regulations, was totally separate from intervention beef and always remains the property of the contractor and never becomes the property of the Minister. He says that the kind of alleged regulatory default is not relevant to fire risk because these defaults had nothing to do with anything that might give rise to an increased risk of fire, insofar as the allegations relate to theft he claimed that the relevant policies do not cover theft, he denies that there were ever systematic abuses at Ballaghaderreen and rejects that the Minister knowingly dealt with “unscrupulous agents” . Any irregularities were primarily of a procedural or technical nature and were not in any case relevant to fire risk. In relation to the allegation that the permanent presence system was not complied with, he makes the point that this was a discretionary system and there was no warranty as to permanent presence.

In addition, the point is made that this application could have been brought much sooner and certainly shortly after the publication of the Beef Tribunal Report in July 1994 and that the absence of a sufficient explanation for delay (or total absence thereof in two cases) being a delay of some three years, should be weighed in the balance against affording the Plaintiffs the reliefs they now seek as should the inconvenience to the Minister’s conduct of his defences comprising extra length of the hearing and a greatly enlarged discovery. Furthermore, the introduction at this stage of the amended pleadings would mean that the Minister’s claim for some £30 million would be delayed for a further period of time. All of these considerations amount to an injustice to the Minister if the amendments are allowed.

In relation to the non-disclosure amendments, the Minister’s Counsel suggested a refinement as follows, namely:

(a) those that related to the Minister’s knowledge of irregularities in the operation of the APS and ERS were not supported by any satisfactory evidence;

(b) those that referred to the Intervention Scheme could perhaps be said to be supported by evidence, namely, a two page extraction from the Report of the Beef Tribunal itself; and

(c) in relation to the amendment dealing with the defects in the permanent presence system, even if there were inadequacies, these would appear to be so remote from the fire insurance considerations as not to require disclosure.

Counsel for the Minister drew my attention to the phraseology of Order 28 Rule 1 which refers to the determination of “the real questions in controversy between the parties” . She submitted that this implies something more than a stateable pleading point which might indeed survive an attack that it disclosed no reasonable cause of action under Order 19 Rule 28 but could be said nonetheless to have no reality. It would have no reality, for example, if it could not conceivably support a conclusion which would afford the Plaintiff relief or if it was inconsistent with other pleas in the Plaintiffs’ claims. Counsel also submitted that on this application the onus is on the Plaintiff (in relation to the non-disclosure amendments) to establish by credible evidence that there is a real issue as to whether an insurer would take the newly pleaded factors into account when considering accepting a risk. She submitted that the onus was on the Plaintiffs and could be discharged only by evidence from an insurance professional. The Affidavits in support of the application were sworn by solicitors.

Counsel for the Plaintiffs submit as follows:-

(a) In relation to delay, there is no inflexible rule that three years, for example, is a period of delay which in and of itself would justify a refusal to allow an amendment as distinct from a period of one year. In this case discovery has not yet been completed, the case has not been set down and there is really no clear evidence that the introduction of these amendments would necessarily mean that the action will be heard at a later point than it would otherwise have been.

(b) In relation to whether there should be credible evidence of a real issue, the Plaintiffs’ Counsel submit that this is not the correct test. The test is whether this plea would have been a proper plea in the original Statement of Claim, would have survived an attack that it disclosed no reasonable cause of action under Order 19 Rule 28 of the Superior Courts Rules and if it would, then it should be allowed unless injustice is thereby caused to the Defendant. It is further submitted that if these pleas are not allowed because the Plaintiff did not include them in the original Statement of Claim, then this would be to penalise or punish the Plaintiffs which is something which is contrary to principle in the established authorities.

Furthermore, it is not an injustice to the Defendant in the sense contemplated by these authorities that the trial would be thereby lengthened or discovery enlarged because these are consequences which would have obtained had the pleas been included in the original Statements of Claim and there is only injustice in the sense identified if the Defendant is put in a worse position by the allowing of the amendments than he would have been had they been included originally.

Alternatively, it is submitted, that there is in fact evidence and Counsel for the Plaintiffs remind me that in an interlocutory application such as this one, hearsay evidence is admissible. It is clear from the Affidavits sworn, particularly by Mr. Bourke, on behalf of a number of the Plaintiffs that he had discussions with his insurer clients and that therefore his assertion that the facts which are the subject of the proposed amended allegations in relation to material non-disclosure are facts which insurance professionals would have considered relevant to their undertaking the fire risk in question is an assertion that can be accepted as evidence on this motion by the Court. Furthermore, the Court should not give equal weight to the assertions made by the two deponents on behalf of the Minister, neither of whom profess any expertise in relation to insurance. Accordingly, there is satisfactory evidence to support the application if such is needed.

They further submitted that in general, the principle is that the amendments should be allowed if it is necessary to do justice between the parties: grave injustice would be done to the Plaintiffs if they are refused this amendment and could have succeeded had it been included but no injustice would be done to the Defendant if it is now included and at the hearing it provides no relief because the matter can be adjusted by a costs award at that stage and no unfair prejudice, in the sense identified already, is claimed by the Defendant.

In relation to delay, it is stressed that delay of itself has never been a cause for refusing an amendment but only a delay which is coupled with some additional hardship to the Defendant if the amendment were allowed.

CONCLUSION

I accept the observation of Kinlen J. in Bell -v- Pederson (1996: 1: ILRM) at page 297 where he says that the main criterion in any case such as the present is to try to do justice between the parties and this explains why Order 28 is so wide.

Secondly, I accept that an amendment should be allowed if it is necessary to ensure that the real issues in controversy are before the Court, provided this does not do an injury or injustice to the other party. The sort of injury in contemplation is, however, such as was stated by Lord Keith of Kinkle in Ketteman -v- Hanson Properties Limited (1987: AC: 189):-

“…. something which places the other party in a worse position from the point of view of presentation of his case than he would have been in if his opponent had pleaded the subject matter of the proposed amendment at the proper time”.

Thirdly, I accept that the objects of the Courts does not include the punishment of parties for mistakes that they may have made in the conduct of their cases (see Crooper -v- Smith [1883] 26 CHD at page 710).

In relation to the submission that the Court should require credible evidence at this stage that there is a real controversy in relation to whether an insurance professional would consider the matters sought to be included in the material non-disclosure amendments, I consider that the observations of Murphy J. in Aer Rianta -v- Walsh Western International Limited (1997: 2: ILRM: 45) particularly at page 50 ( “these are matters which would be considered more properly on the trial of the action if and when liberty to amend is granted” ) and page 51/2 ( “the infirmities in that defence which the solicitor on behalf of the Plaintiff underscored in her affidavit and to which the learned trial judge adverted, will be explored at the trial and no doubt in the context that this particular defence was not incorporated in the pleadings as originally delivered” ) indicate that something less than formal evidence is required on an application such as the present. In this context I was asked to, and did, consider the judgment of Barron J. in Shepperton Investment Company Limited -v- Concast (1975) Limited and Others (unreported: 21st December, 1992). Whilst it is true that he comments (page 8 of the unreported judgment) adversely on the lack of an attempt in the affidavits sworn by the solicitor for the plaintiff to explain the technical nature of the amendment sought (and I note, indeed, as to why the defects had not been made known to the defendant before) and on page 10 the learned Judge observes “clearly, if the plaintiff has a good case in respect of its amended claim, it is facing a serious injustice if it is not allowed to make it” , nonetheless it is clear that this portion of the judgment is concerned predominantly with the impact of a fourteen year delay on the exercise of the Court’s discretion and I do not read these observations as indicating that the relevant credible evidence is a pre-requisite to success. I accept that both these observations and those already referred to of Murphy J. from the Aer Rianta case are just that, namely, obiter dicta . The precise point as to whether evidence is or is not required does not seem to have been decided: as between the two sets of obiter dicta from the two judgments, I consider those of Murphy J. to be somewhat more explicit and closer to asserting that the testing of any pleaded allegations is a matter for evidence at the trial than are those of Barron J. to asserting otherwise. For my own part, I would consider the thrust of the authorities and the application of the general principles to establish that the amending party is entitled, without necessarily adducing primary evidence, to an amendment which discloses a reasonable cause of action (or defence) provided no injustice is done to the opposing party.

Having listened to the careful submissions of Counsel, my view is that an amendment to the pleadings should be allowed if it would have been appropriate in the original pleadings, would have withstood an attack under Order 19 Rule 28 and provided no injustice (in the sense contemplated by the authorities) is thereby done to the opposing party.

If I am incorrect in this conclusion, I would say that in the present application I would consider that in any event there is acceptable evidence to the effect that the subject matter of the proposed material non-disclosure amendments is something which insurance professionals would consider relevant when considering the fire risk in this case, accepting, as I do, that on an interlocutory application hearsay evidence from a solicitor clearly based on instructions given to him from his insurance clients is admissible.

Applying these principles, my view is that no prejudice or injustice as contemplated by the authorities has been established by the Defendant; I do not consider that the delay in any of the cases is sufficient of itself to justify a refusal of the amendments; I consider that the real questions in controversy between the parties include all of the questions now sought to be comprehended by the proposed amendments, including those amendments dealing with the effect on the contracts of the Plaintiff insurers of the exclusion by the lead insurer of the fire risk and the inclusion of a specific reference to the additional cancellation notice in the Eagle Star France and Others case. Accordingly, I propose to allow the Plaintiffs to introduce amended Statements of Claim incorporating all the proposed amendments proposed in these motions.

Croke -v- Waterford Crystal

[2004] IESC 97 Geoghegan J

The law

Although there is a body of case law which has been helpfully referred to in the written submissions of the three parties, the most important legal source is the relevant rule in the Rules of the Superior Courts in that in many respects its terms are crystal clear. The relevant rule is Rule 1 of O. 28 and it reads as follows:

“The Court may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”

While undoubtedly there is a discretion in the court as to whether to make the order or not and other factors may come into play, the primary consideration of the court must be whether the amendments are necessary for the purpose of determining the real questions of controversy in the litigation. I am in agreement with the submissions of counsel for the appellant that the learned High Court judge did not adequately address that question but was much more concerned with the procedural conduct of the appellant. The priority which must be given to that issue was clearly restated by the Supreme Court in O’Leary v. Minister for Transport, Energy and Communications [2001] 1ILRM 132. McGuinness J. sat with Denham and Barron JJ. The following passage at p. 143 of the report clearly indicates the approach of McGuinness J. and of the court.

“I accept that there has been undesirable delay in the prosecution of these proceedings. As Mr. Gallagher submitted, the action was instituted very late in the day, and having been instituted late, has been progressed by the applicant at an extremely relaxed pace. Indeed the amount of delay, and the repeated delay is the strongest argument against permitting the inclusion of a new and distinct claim of conspiracy. However this is an application under Order 28 Rule 1, and the delays in the instant case are not outside the well established parameters of that rule. The operation of the rule was considered by the learned Kinlen J. in Bell v. Pederson [1995] 3 IR 511; [1996] 1 ILRM 290. In that case an application to amend the pleadings in a substantial and important way was made on the morning of the trial. The learned Kinlen J. allowed the respondents to amend their defence in the manner sought. In his judgment he approved the principles laid down by Keane J. in Krops v. The Irish Forestry Board Limited and referred also to the dicta of Lynch J. in Director of Public Prosecutions v. Corbett ILRM 674 at p. 678:

‘The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party. While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendments should be made. If there might be prejudice which could be overcome by an adjournment then the amendments should be made and an adjournment also granted to overcome the possible prejudice and if the amendments might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnity the other party against such expenses.’

Kinlen J. adopted this reasoning as part of the ratio of his judgment. It appears to me also to be an application of principle which is in accordance with justice.”

Even if I was not bound to do so, I would have no hesitation in following that judgment. I entirely agree with the approach to the interpretation of the rule which it represents.

In some of the High Court decisions cited in the submissions, there has been an overemphasis on an obligation to give good reason for having to amend the pleadings. To a large extent these decisions seem to derive directly or indirectly from an unreported judgment of Barron J. delivered in the High Court on the 21st December, 1992 in the case of Shepperton Investment Company Limited v. Concast [1975] Limited. The material passage in the judgment reads as follows:

“Ultimately however the question is, where does the balance of justice lie. Clearly, if the plaintiff has a good case in respect of its amended claim, it is facing a serious injustice if it is not allowed to make it. Nevertheless before such an amendment should be allowed full disclosure should be made as to the circumstances in which the claim comes to be made and as to why it has not been made sooner. No such effort has been made here in circumstances where the technical evidence apparently available to the plaintiff appears not to support the amendment. Such considerations weaken the case for the plaintiff.”

This passage must be read in the context of views expressed by the learned judge earlier in his judgment. The reference to “full disclosure” “as to the circumstances in which the claim comes to be made” would appear to me to be a reference to the fact heavily criticised in the judgment that the plaintiff had not given proper particulars in replies to a notice for particulars and in particular had relied on the answer “this is a matter of evidence”. Of course, this aspect of the judgment is relevant to the claim to amend the Statement of Claim as against the second-named respondent which I will be dealing with in due course.

What has also influenced the High Court is the decision of this court in McFadden v. Dundalk and Dowdallshill Coursing Club Limited (unreported judgment of Finlay C.J. 22nd April, 1994) in which the court upheld the judgment of the High Court (Johnson J.) in refusing an amendment by the respondents of a defence to plead that the plaintiff was a member of the Club on an application made some three days before the intended date of trial on the basis that no information was given in the affidavit as to why the matter had not been adverted to before that point in time and why the application had not been brought at an earlier point in time. The McFadden judgment was delivered ex tempore as a ruling of the court. The proceedings had been commenced by a summons in December, 1990 and were brought forward for trial. The case came on for trial in Dundalk, was listed and ready for hearing in a session prior to December, 1993 but though intended to be taken up by reason of the amount of work on that day the case fell out of the list and was adjourned to be tried in the December session. At that stage the position of the case in the list in Dundalk was going to give it a secure chance of getting a hearing. The December sittings in Dundalk commenced on the 9th December and an application was made to the High Court on the 6th December by the respondents to amend their defence to raise the plea that the plaintiff was a member of the Club and that, therefore, he could not sue as a member of an unincorporated body. This is what Finlay C.J. had to say:

“This is a preliminary point which the court is quite satisfied is a purely technical point particularly on the facts of this case. At least it is quite clearly without any merits though it may be a good legal point. The court does not express any views about that. The question then is whether the court should exercise a discretion to permit the respondents to amend their defence. To raise a purely technical point at this stage, the learned trial judge of the High Court decided that it was too late. This court is of the same view. No explanation was given on any affidavit as to why the matter was not adverted to or why it was not in the original defence or why there was not any application made before the time when it was.”

It is clear from that passage and from later parts of the ex tempore ruling that the court was understandably taking the view that having regard to the late state at which the proceedings were at and its listing history it would on the face of it be quite wrong to permit the amendment. But as I interpret the judgment, the references to an affidavit and to reasons was a reference to the obvious fact that there could be exceptional reasons for allowing an amendment even at that late stage in which case those exceptional reasons would have to be fully set out in evidence before the court and that was not done. I do not think that McFadden can be cited as an authority for any general principle as to what the contents of an affidavit have to be in an application to be allowed deliver an amended pleading.

Shepperton and McFadden were both cited by and relied on by Flood J. in Palamos Properties Limited v. Brooks [1996] 3 IR 597. With reference to the two cases Flood J. said the following at p. 605:

“In my opinion these decisions amount to this. That within the facts underlying the claim before the courts there must be such evidence from which an inference can reasonably be drawn as to why the plea which is sought to be introduced by way of amendment was not put in the original defence or express evidence given to explain the failure in a manner which renders the omission broadly excusable if not actually justifiable.”

For the kind of reasons which I have indicated, I would express doubt that those cases support such a broad proposition as enunciated by Flood J. Both cases were special to their own peculiar facts. There are, however, some other pertinent and useful quotations from English cases in the judgment of Flood J. He first cites the well known case of Cropper v. Smyth (1884) 26 Ch. D. 700 at pp. 710-711 where Bowen L.J. said the following:

“It is a well established principle that the object of the courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights… I know of no kind of error or mistake, which if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other parties. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace …It seems to me that as soon as it appears that the way in which the party has framed his case will not lead to a decision on the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

Flood J. also cites Woolf L.J. in Bower v. Maxwell (unreported judgment Court of Appeal England 8th May, 1989):

“The mere fact that where delay has been occasioned by a party who seeks to obtain leave to amend his pleadings to introduce new issues, that that delay may be capable of being compensated in money is not conclusive of the question whether the amendment should or should not be permitted. The respondent’s conduct … must be such that it can be regarded as justifiable or at any rate excusable.

If the respondent’s is not justifiable or excusable then that factor has to be taken into consideration as part of the matters to be weighed in deciding whether or not it will allow the amendment and of course where the result of taking it into consideration is countered by the factor that they would be prejudiced to the plaintiff by allowing the amendment, the amendment should not be allowed.”

Questions as to how O. 28, r. 1 is to be interpreted also came before Kinlen J. in Bell v. Pederson [1995] 3 IR 511. In that case the learned judge referred to McFadden, Palamos and DPP v. Corbett already cited. It is not entirely clear what exact principle the learned judge drew from these cases but he does seem to have quite correctly addressed the question of prejudice to the plaintiff in circumstances where the respondent was seeking to amend his defence in a libel action by pleading express malice. In deciding what he should do Kinlen J. clearly had regard to the question of why the plea was not originally in the defence and he was satisfied that this could be traced to the failure of the respondent’s solicitor to provide counsel with the second page of the alleged defamatory letter. He came to the conclusion that the amendment should be granted in that prejudice could be met by appropriate costs order.

An important High Court decision is Krops v. The Irish Forestry Board Limited [1995] 2 IR 113 where Keane J. (as he then was) carefully considered the ambit of O. 28, r. 1 and held that the court has a wide jurisdiction to amend pleadings in such manner and on such terms as it considers just in the circumstances. He went on to hold that as a matter of principle, pleadings carry with them from the time they are issued or delivered the potentiality of being amended by the court and that since the proceedings were always capable of amendment by the court in such manner as might be just and in order to allow the real question and controversy between the parties to be determined. The mere fact that if a new cause of action sought to be included in the Statement of Claim had been brought by separate action it would be statute barred does not prevent the amendment being granted. This decision has particular relevance to the objection to the inclusion of “1999” in the proposed amended Statement of Claim. But if that really is the year when the plaintiff acquired the knowledge it is prima facie a necessary amendment for having the real issues tried or certainly, it would have to be included in a Reply. The insertion of date of knowledge is merely an expansion of the claim being made at any rate.

Conclusion on application to amend Statement of Claim

Having outlined the nature of the claims against each respondent as pleaded in the existing Statement of Claim and having reviewed the case law relating to this kind of application, I turn now to the conclusions which I have arrived at. But before setting out what those conclusions are I think it important to refer to certain aspects of the judgment of the High Court. Although the learned High Court judge undoubtedly accepted all or certainly most of the submissions put forward on behalf of each of the respondents in this court and which had equally been put forward before him in the High Court, it is clear nevertheless from the whole tenor of his judgment that he was particularly strongly influenced by what he perceived as procedural misbehaviour on the part of the appellant. For the most part, I would be in full agreement with his strictures in this regard. Notwithstanding that the appellant brought his own motion for directions, at no stage was it apparently intimated to Smyth J. that following on the directions or following on discovery there would probably be an application to amend the Statement of Claim and an application to deliver late Replies. At p. 9 of the transcript of his judgment, the learned High Court judge had this to say:

“At the hearing of the motion for directions, the application of the plaintiff was that five to ten cases should proceed to a full and final hearing as test cases. If there was any intention to amend the pleadings in those cases (of which Mr. Croke was one), then clearly such were not ready for hearing and this fact (if it were so at the time, i.e. 25th June 2003) should have been disclosed to the court as it was, if it was a material fact and of potential relevance to the consideration by the court on the motion for directions which were then before it.”

I agree with that statement and I also agree with the learned High Court judge’s rejection of the excuse put forward that it was appropriate to bring the application for directions ahead of any application to amend the Statement of Claim or deliver a late Reply. The learned High Court judge went a step further and declared himself satisfied and found as a fact on the evidence before him “that notwithstanding the plaintiff having the defence of IPT (on the 25th May, 2002) and Waterford (on the 8th January, 2003) expressly pleading the provisions of the Statute of Limitations, 1957 that the plaintiffs had no intention that can be objectively determined to amend the pleadings until after the order of the High Court on the 26th June, 2003.” That, of course, was the order making the directions. It does seem to me that there was a certain element of disingenuousness on the part of the appellants. There is a danger, however, that in overly concentrating on these discrepancies in the procedural behaviour of the appellants the real purpose of the rule may become forgotten. While I quite agree that other factors have to be taken into account in the exercise of the discretion, the primary purpose of the rule is to give the court wide powers of amendment so that the real issues between the parties can be determined. This is always subject to questions of real prejudice to the respondent but some aspects of prejudice can be dealt with by appropriate costs orders or conditions. Inserting the date of knowledge into the Statement of Claim is a helpful piece of clarification but contrary to what the learned High Court judge seemed to imply it is not necessary for the purposes of meeting a plea of the Statute of Limitations. As I have already pointed out, it is in the Reply that the date of knowledge must be inserted. If there is any legitimacy in the trial judge’s strictures in relation to this part of the amendments i.e. the amendment inserting the date of knowledge, they are more appropriate to the application for liberty to deliver a late Reply than to the application to amend the Statement of Claim.

I do not think it would be right for a court on an interlocutory application such as this to speculate in any way as to whether a date of knowledge proposed to be inserted is in some way bogus or not. As will emerge I take the view that the order permitting late delivery of the Reply to the first-named respondent’s defence ought to be granted and as the date of knowledge is inserted in it, it would seem sensible that it be inserted in the amended Statement of Claim at least if some of the other amendments are approved by this court.

These other amendments essentially relate to allegations of fraud and deliberate misconduct. While these causes of action involving deliberate misconduct such as fraud, deceit etc. were not properly pleaded in the original Statement of Claim such allegations, in my view, are implicit in the existing Statement of Claim for the reasons which I have already indicated and I, therefore, think it is appropriate that they be properly pleaded and made explicit. Interestingly, the learned High Court judge at p. 11 of the transcript of his judgment that a submission had been made to him in the High Court on the 25th June, 2003 that “in the present case, the plaintiffs have fully pleaded the fraud and have given particulars of the fraud.”

The reference to “particulars of the fraud” is also interesting. Paragraph 13 of the first-named respondent’s notice for particulars dated 16th July, 2002 is in the following terms:

“The plaintiff claims damages for deceit, fraud and/or fraudulent breach of trust and/or fraudulent misrepresentation. Please give full and detailed particulars of the matters relied on by the plaintiff to support the said allegations.”

The solicitors for the appellant in a letter dated 8th August, 2002 replied to

that particular as follows:

“See paragraph 12 of the Statement of Claim. Moreover the plaintiff claims that the second-named respondent knew and was aware and/or ought to have been aware that the first-named respondent was operating a voluntary redundancy scheme in which pension funds were being paid out. Such pension refunds were being paid out without the plaintiff being properly informed and/or advised either by the first-named respondent or the second-named respondent as to his proper rights and entitlements. In so far as the second-named respondent did not inform the plaintiff of his rights as the second-named respondent was under a fiduciary and statutory duty to do, the second-named respondent in effect failed in its legal obligation to provide information to the plaintiff. The second-named respondent was also aware or ought to have been aware of the misrepresentation made by the first-named respondent to the plaintiff. The first-named respondent represented to the plaintiff that he had no pension entitlements or alternatively he did not represent to the plaintiff that he had pension entitlements. In so doing the first-named respondent was acting in circumstances where they were acting as servants or agents of the second-named respondent”.

It seems clear that however badly it was pleaded, a fraud claim of some sort against the first-named respondent was at all material times in the mind of the appellant. I believe that the position relating to the second-named respondent is quite different and I will come to it in due course.

It is not clear to me that the amendments as against the first-named respondent would give rise to any relevant legal prejudice. If by reason of the appellant’s date of knowledge the action which might otherwise have been statute barred is not in fact statute barred it cannot be said that prejudice has arisen. It is not necessary for this purpose to apply the principles adopted by Keane J. in Krops v. The Irish Forestry Board cited above.

The learned High Court judge, although carefully dealing with all aspects of the case, did not place sufficient emphasis on the basic purpose of the rule which is intended to be a liberal rule. I am, therefore, of the view that as against the first-named respondent the appellant ought to be allowed deliver an amended Statement of Claim. I will return to the question of the form that that amended Statement of Claim should take.

In so far as the appellant wants to amend the Statement of Claim as against the second-named respondent I take a different view. In the earlier part of this judgment, I have demonstrated by reference to the pleadings in the existing Statement of Claim and by reference to the replies to the two notices for particulars sent by that respondent that the appellant has not put forward any factual basis whatsoever to support a fraud or any kind of deliberate misconduct claim against the second-named respondent. In the replies to particulars there is a vague allegation that deliberate misrepresentations made by the first-named respondent were made by that respondent as agent for the second-named respondent. But there are no particulars even remotely supporting that proposition. There are no allegations against any single named employee of the second-named respondent and, of course, having regard to the nature of the second-named respondent company fraud or conspiracy allegations against it would be particularly serious.

What are the real issues between the parties? At best from the appellant’s point of view there are both positive and negative issues as against the first-named respondent, that is to say, issues of fraud and breach of duty but as against the second-named respondent no factual basis has been given to support any allegation against it other than the negative one of breach of duty. Accordingly, I would refuse leave to amend the Statement of Claim as against the second-named respondent.

It logically follows that I would not grant leave to deliver the amended Statement of Claim in its present form because that includes claims of fraud and conspiracy and other deliberate misconduct against the second-named respondent. I would take the view that before the court can make a final order permitting the delivery of an amended Statement of Claim as against the first-named respondent it will have to have sight of the re-amended draft. It would be wholly wrong for the court to attempt its own amendments. It is for the appellant to plead his case. Therefore, when I say that I would grant leave for delivery of an amended Statement of Claim as against the first-named respondent, I mean an amended Statement of Claim suitably re-amended and approved by the court so as to exclude the amended claims against the second-named respondent.

Conclusions on application for leave to deliver late Reply to each of the defences

If there is an answer to a plea of the Statute of Limitations that answer must be pleaded in a Reply. While it is true that there are time limits for the delivery of a Reply there would have to be extraordinary circumstances in my view for a court to deprive a plaintiff of the right to adduce a perfectly good answer to a plea of the Statute of Limitations effectively on a time point. On that ground alone I would have no difficulty in the court permitting the plaintiff to deliver Replies to the defences of both respondents. I see no objection to including the other matters which do not relate to statute bar. The mechanics of the order would have to differ in relation to each Reply. It would seem to me that the court may straight away set aside the refusal order of the High Court and permit the delivery of a Reply to the Defence of the second-named respondent since in relation to that action I have taken the view that leave should not be given to amend the Statement of Claim as against that respondent. However, it would be pointless at this stage to give leave for the delivery of a Reply to the Defence of the first-named respondent if the court is giving leave to amend the Statement of Claim against that respondent. Obviously, it would be part and parcel of that order that the first-named respondent would have liberty to deliver an amended Defence to that amended Statement of Claim and the proper order for the court to make would be to give liberty to the appellant to deliver a Reply to the amended Defence of the first-named respondent within an appropriate period. The order could provide that in the unlikely event that there would be no amended Defence the appellant would have leave to deliver a Reply to the existing Defence. It is important that the delivery of these amended and additional pleadings be expedited because, apart from anything else, this court has still to hear and determine the appeal from the High Court order for directions.

In summary, I would allow the appeal of the appellant against the first-named respondent in both motions subject to the re-amending of the amended Statement of Claim as indicated. I would dismiss the appeal of the appellant against the second-named respondent on the motion seeking liberty to amend the Statement of Claim in so far as it would contain additional allegations against the second-named respondent but I would allow the appeal on the motion seeking liberty to deliver a Reply to the defence of the second-named respondent. The Reply permitted to be delivered as against the first-named respondent would be a Reply to an amended Defence following on delivery of an amended Statement of Claim.